Petition for Writ of Certiorari — Harry Crawford, Petitioner v. United States

No. ___________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

HARRY CRAWFORD,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Respectfully submitted,

JAMES WYDA

Federal Public Defender

District of Maryland

PARESH S. PATEL

Appellate Attorney

6411 Ivy Lane, Suite 710

Greenbelt, Maryland 20770

Telephone: (301) 344-0600

Facsimile:

(301) 344-0019

Counsel for Petitioner

QUESTION PRESENTED

All Courts of Appeals have held that any ambiguity in a plea agreement must be

construed against the party that drafted the agreement. However, in this case, the United States

Court of Appeals for the Fourth Circuit created a Circuit split by construing any ambiguity that

existed in Mr. Crawford’s plea agreement against him, rather than against the government. The

ambiguity pertains to whether Mr. Crawford waived his right to appeal his sentence under the

terms of the appellate waiver (as set forth in the plea agreement drafted by the government). The

question presented by this split is the following:

Must ambiguity in a plea agreement be construed against the government, who is the

drafting party?

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............................................................................................................. i

TABLE OF CONTENTS ................................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................................... iii

OPINION BELOW ......................................................................................................................... 1

JURISDICTION ............................................................................................................................. 2

STATEMENT OF THE CASE....................................................................................................... 2

District Court Proceedings .................................................................................................. 2

Appellate Proceedings ........................................................................................................ 6

REASONS FOR GRANTING PETITION..................................................................................... 8

By construing any ambiguity in Mr. Crawford’s plea agreement in the government’s

favor, the Fourth Circuit’s decision conflicts with the precedent of every other Circuit,

which hold that ambiguity in a plea agreement must be construed in favor of a defendant.

............................................................................................................................................. 8

A.

Every Court of Appeals has held that ambiguity in a plea agreement must be

construed in the favor of the defendant................................................................... 8

B.

The Fourth Circuit has created a Circuit split by construing any ambiguity in Mr.

Crawford’s plea agreement against him. .............................................................. 11

CONCLUSION ............................................................................................................................. 16

APPENDIX:

United States v. Crawford, No. 17-4213 (4th Cir. Jan. 19, 2018) (unpublished) ......... A001

Plea Agreement ............................................................................................................. A003

Sentencing Transcript ................................................................................................... A022

Appellant’s Opening Brief ............................................................................................ A151

Government’s Motion To Dismiss Appeal ................................................................... A203

Appellant’s Opposition to Government’s Motion To Dismiss Appeal ........................ A222

ii

TABLE OF AUTHORITIES

Page

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000) ................................................................................ 3

Cross v. United States, --- F. 3d ----, 2018 WL 2730774 (7th Cir. June 7, 2018) .................. 10, 11

Davies v. Benov, 856 F.3d 1243 (9th Cir. 2017)............................................................................. 9

In re Altro, 180 F.3d 372 (2d Cir. 1999)................................................................................. 10, 11

Jones v. United States, 574 U.S. ---, 135 S. Ct. 8 (2014) ............................................................... 3

Ricketts v. Adamson, 483 U.S. 1 (1987) ......................................................................................... 8

United States v. Bowler, 585 F.2d 851 (7th Cir. 1978)................................................................. 11

United States v. Carr, 303 F.3d 539 (4th Cir. 2002) .................................................................... 13

United States v. Escobedo, 757 F.3d 229 (5th Cir. 2014)............................................................... 9

United States v. Giorgi, 840 F.2d 1022 (1st Cir. 1988) ................................................................ 10

United States v. Gottesman, 122 F.3d 150 (2d Cir. 1997) ............................................................ 10

United States v. Gullett, 75 F.3d 941 (4th Cir. 1996) ................................................................... 13

United States v. Harris, 376 F.3d 1282 (11th Cir. 2004)................................................................ 9

United States v. Hunt, 843 F.3d 1022 (D.C. Cir. 2016) .................................................................. 9

United States v. Jensen, 423 F.3d 851 (8th Cir. 2005) ........................................................... 10, 11

United States v. Jordan, 853 F.3d 1334 (10th Cir. 2017) ............................................................... 9

United States v. Moon, 808 F.3d 1085 (6th Cir. 2015) ................................................................... 9

United States v. Morales-Arroyo, 854 F.3d 118 (1st Cir. 2017)..................................................... 9

United States v. Munoz, 718 F.3d 726 (7th Cir. 2013) ................................................................... 9

United States v. Stearns, 479 F.3d 175 (2d Cir. 2007) ................................................................... 9

United States v. Tate, 845 F.3d 571 (4th Cir. 2017) ....................................................................... 9

iii

United States v. Torres-Rivas, 825 F.3d 483 (8th Cir. 2016) ......................................................... 9

United States v. Williams, 510 F.3d 416 (3d Cir. 2007) ................................................................. 9

Williams v. United States, 2007 WL 9655847 (D. Md. Aug. 31, 2007) ....................................... 13

Statutes, Rules, and Guidelines

18 U.S.C. § 1111 ............................................................................................................................. 4

18 U.S.C. § 1347 ............................................................................................................................. 2

18 U.S.C. § 371 ............................................................................................................................... 2

18 U.S.C. § 894 ............................................................................................................................... 3

28 U.S.C. § 1254(1) ........................................................................................................................ 2

28 U.S.C. § 1291 ............................................................................................................................. 2

S. Ct. R. 10(c) ................................................................................................................................. 2

U.S.S.G. § 2A1.1 ................................................................................................................... passim

U.S.S.G. § 2A1.2 ............................................................................................................................ 5

U.S.S.G. § 2D1.1 .......................................................................................................................... 14

U.S.S.G. § 2E2.1 .................................................................................................................... passim

U.S.S.G. § 3E1.1 ............................................................................................................................. 5

U.S.S.G. § 5K2.1 ................................................................................................................... passim

iv

No. ___________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

HARRY CRAWFORD,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner, Harry Crawford, respectfully prays that a writ of certiorari issue to review the

decision of the United States Court of Appeals for the Fourth Circuit rendered in this case on

January 19, 2018

OPINION BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit is unpublished.

The opinion is reproduced in the Appendix. App. at 1-2. 1

1

App. refers to the Appendix followed by the page number.

1

JURISDICTION

Jurisdiction in the United States Court of Appeals for the Fourth Circuit was based on 28

U.S.C. § 1291. The Fourth Circuit issued a decision in Mr. Crawford’s case on January 19, 2018,

denying his right to appeal. App. at 1-2. This Court’s jurisdiction to review the decision is invoked

under 28 U.S.C. § 1254(1). See also S. Ct. R. 10(c).

STATEMENT OF THE CASE

District Court Proceedings

Harry Crawford owned and operated RX Resources and Solutions (RXRS), a provider of

medical supplies. Matthew Hightower worked at RXRS as a delivery driver. David Wutoh

worked in the wholesale pharmaceutical industry and was a longtime friend of Mr. Crawford’s.

Around May 2013, Mr. Crawford introduced Mr. Hightower to Mr. Wutoh in order for Mr.

Hightower to provide a loan to Mr. Wutoh. Mr. Crawford and Mr. Wutoh had a long history of

loaning one another money. Mr. Hightower gave Mr. Wutoh $15,000 in cash in return for a

promised repayment of $20,000 at some point in the future. Mr. Crawford also loaned Mr. Wutoh

money. When Mr. Wutoh did not repay either party, Mr. Hightower and Mr. Crawford began

making verbal threats to induce him to repay the debts he owed. This verbal extortion went on for

four months with no acts of physical violence. Then, on September 22, 2013, David Wutoh was

shot and killed while sleeping on his ex-girlfriend’s couch. Mr. Hightower—not Mr. Crawford—

was convicted of extorting and murdering Mr. Wutoh. No evidence existed placing Mr. Crawford

anywhere near the scene of the crime.

After a trial on the extortion and murder conduct that ended in a hung jury, Mr. Crawford

pleaded guilty to health care fraud, in violation of 18 U.S.C. § 1347; conspiracy to defraud the

United States, in violation of 18 U.S.C. § 371; and collection of extension of credit by extortionate

2

means, in violation of 18 U.S.C. § 894. The plea agreement that Mr. Crawford signed contained

a partial appellate waiver. App. at 10.

The appellate waiver in the plea agreement contained an exemption that allowed Mr.

Crawford to appeal under two conditions. App. at 10. The first condition permitted him to appeal

his sentence if the district court, in determining his guideline range, applied the cross-reference

provision of the extortion guideline, U.S.S.G. § 2E2.1(c)(1), which, in turn, directs the court to

apply the first-degree murder guideline at U.S.S.G. § 2A1.1, “resulting in a base offense level of

43.” 2 The second condition permitted Mr. Crawford to appeal his sentence if the district court

departed upward under the so-called death departure, at U.S.S.G. § 5K2.1 (“If death resulted, the

court may increase the sentence above the authorized guideline range.”).

At sentencing, the government asked that Mr. Crawford be sentenced not just for his

admitted criminal conduct, but also for the murder of his friend, David Wutoh, although Mr.

Crawford had neither admitted any involvement in the murder nor been found guilty of it at trial.

The defense objected to using the murder to elevate Mr. Crawford’s sentence, both under the U.S.

Sentencing Guidelines and under the constitutional principles set forth in Apprendi v. New Jersey,

530 U.S. 466 (2000), and Jones v. United States, 574 U.S. ---, 135 S. Ct. 8 (2014) (Scalia, J., joined

by Thomas and Ginsburg, JJ., dissenting from denial of certiorari). App. at 157.

2

The plea agreement appellate waiver exemption provision provided that:

the Defendant may appeal the Court’s finding that U.S.S.G. § 2E2.1(c)(1) applies

to Count One, ECF 146 (Collection of Credit by Extortionate Means) resulting in a

base offense level of 43, and the Defendant may also appeal any upward departure

under U.S.S.G. § 5K2.1 (Death).

App. at 10.

3

Nonetheless, the court ruled that Mr. Crawford was accountable for the murder under the

U.S. Sentencing Guidelines, on the ground that he had recklessly conspired to commit extortion

with Matthew Hightower, whom the court found to have committed the murder. The court held

Mr. Crawford accountable for the murder even though it made no finding that Mr. Crawford ever

agreed to inflict any actual physical injury on anyone, via shooting or otherwise. Despite this lack

of a finding, and the court’s affirmative finding that Mr. Crawford did not intend the murder

committed by Mr. Hightower, the court noted that Mr. Crawford could have taken steps to prevent

the murder but he did not, and determined that Mr. Crawford was accountable for the murder under

the Sentencing Guidelines.

The court then calculated the Mr. Crawford’s guideline range under the U.S. Sentencing

Guidelines in two alternative ways, both of which relied on holding Mr. Crawford accountable for

the murder, and both of which qualified Mr. Crawford to appeal the sentence under the terms of

his plea agreement. In the first alternative guideline calculation, the court applied the extortion

guideline, § 2E2.1, then applied the cross-reference at § 2E2.1(c)(1), which directs the court to

apply the first-degree murder guideline, § 2A1.1. 3 The first-degree murder guideline sets a base

offense level of 43. U.S.S.G. § 2A1.1(a). The application note to the first-degree murder

guideline, however, permits a downward departure if the defendant did not cause the death

3

The cross-reference provision in the extortion guideline reads in its entirety:

Cross Reference . . . If a victim was killed under circumstances that would

constitute murder under 18 U.S.C. § 1111 had such killing taken place within the

territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree

Murder).”).

U.S.S.G. § 2E2.1(c)(1).

4

intentionally or knowingly. U.S.S.G. § 2A1.1 cmt. n.2(B). 4 The district court found that Mr.

Crawford did not cause Mr. Wutoh’s death intentionally or knowingly, and therefore followed the

application note to downwardly depart five offense levels, to offense level 38—commensurate

with the base offense level for second-degree murder. See U.S.S.G. § 2A1.2(a). The court then

deducted two levels for acceptance of responsibility under § 3E1.1, then downwardly departed five

additional levels, in recognition of Mr. Crawford’s lesser culpability relative to a person guilty of

committing second-degree murder, ultimately reaching a final offense level of 31.

In the court’s second alternative guideline calculation, the court again started with the

extortion guideline, § 2E2.1, which sets a base offense level of 20, then added nine levels for the

specific offense characteristics of discharging a firearm with injury resulting. 5 The court then

deducted two levels for acceptance of responsibility under § 3E1.1, then upwardly departed four

levels under the so-called death departure guideline, § 5K2.1, 6 upon finding that death resulted

4

The application note, which appears in the commentary to the first-degree murder

guideline, reads:

Felony Murder.—If the defendant did not cause the death intentionally or

knowingly, a downward departure may be warranted. . . . The extent of the

departure should be based upon the defendant’s state of mind (e.g., recklessness or

negligence), the degree of risk inherent in the conduct, and the nature of the

underlying offense conduct. However, departure below the minimum guideline

sentence provided for second degree murder in § 2A1.2 (Second Degree Murder)

is not likely to be appropriate.

U.S.S.G. § 2A1.1 cmt. n.2(B).

5

See U.S.S.G. § 2E2.1(b), (b)(1)(A), (b)(2)(C).

6

See U.S.S.G. § 5K2.1 (“If death resulted, the court may increase the sentence above the

authorized guideline range.”).

5

from the extortion offense. Under either alternative calculation, the final offense level after

adjustments and departures was 31.

With a final offense level of 31 and a criminal history category of II, the court calculated

Mr. Crawford’s guideline range to be 121 to 151 months. The court then imposed a sentence of

144 months’ imprisonment.

Appellate Proceedings

Mr. Crawford subsequently appealed his sentence, under both of the alternative guideline

calculations. Specifically, Mr. Crawford claimed that both of the alternative guideline calculations

were erroneous because they wrongly held him accountable for the murder. Moreover, Mr.

Crawford asserted that he had a right to appeal each of these alternative guideline calculations, as

each one fell squarely within his preserved appeal rights under the plea agreement: the first,

because the court applied the cross-reference at § 2E2.1(c)(1), leading the court to apply the firstdegree murder guideline, § 2A1.1, which sets a base offense level of 43; and the second because

the court had applied the § 5K2.1 upward death departure.

Instead of responding on the merits, the government filed a motion to dismiss Mr.

Crawford’s appeal, arguing that Mr. Crawford had waived his right to challenge his sentence under

the terms of the plea agreement. Specifically, the government argued that though “the district

court did cross-reference U.S.S.G. § 2A1.1, . . . the base offense level was clearly not set at 43.”

App. at 203. In so arguing, the government ignored the plain language and basic mechanics of the

Sentencing Guidelines. The court undeniably applied the cross-reference, § 2E2.1(c)(1), which

directs the court to one and only one guideline, the first-degree murder guideline, § 2A1.1, which

sets one and only one base offense level: 43. Since the court did apply the cross-reference at

6

§ 2E2.1(c)(1), directing it to § 2A1.1, and § 2A1.1 necessarily sets the base offense level at 43,

Mr. Crawford responded that his right to appeal had been preserved. App. at 223-224.

The government additionally argued that the Court of Appeals should dismiss Mr.

Crawford’s appeal of the district court’s alternative guideline calculation, applying the § 5K2.1

death departure. Although the government acknowledged that the appellate waiver provision

permitted Mr. Crawford to raise this claim, the government asserted that Mr. Crawford did not

“press[] the appeal” on this point. App. at 203. Accordingly, the government argued Mr. Crawford

had effectively abandoned this claim. App. at 203, 219. But Mr. Crawford had demonstrated in

his opening appellate brief that the district court imposed the § 5K2.1 upward departure based on

the same flawed finding it had relied on to apply the murder cross-reference at § 2E2.1(c)(1). App.

at 158, 168-169, 171, 189. In other words, Mr. Crawford argued that because the § 2E2.1(c)(1)

murder cross-reference was applied in error, so was the § 5K2.1 death departure, which was

predicated on the same finding. App. at 240-245.

Nonetheless, the Fourth Circuit, in a five-sentence opinion, summarily accepted the

government’s argument and held that Mr. Crawford had waived his right to appeal his sentence.

App. at 1-2. First, the Court of Appeals, without any analysis, held that Mr. Crawford had waived

his right to challenge the application of the § 2E2.1(c)(1) murder cross-reference under the terms

of the appellate waiver provision in his plea agreement. App. at 1. Second, the Court held that

although Mr. Crawford had preserved his right to challenge the application of the § 5K2.1 death

departure, he had effectively abandoned that claim on appeal. App. at 1-2.

7

REASONS FOR GRANTING PETITION

By construing any ambiguity in Mr. Crawford’s plea agreement in the government’s favor,

the Fourth Circuit’s decision conflicts with the precedent of every other Circuit, which hold

that ambiguity in a plea agreement must be construed in favor of a defendant.

Mr. Crawford continues to contend that the plain language in the appellate waiver provision

of his plea agreement permitted him to challenge the application of the § 2E2.1(c)(1) murder crossreference. Nonetheless, to the extent there was any ambiguity in the plea agreement, the Courts

of Appeals have uniformly held that any such ambiguity must be construed in favor of the

defendant, and against the government, who is the drafter of the plea agreement. It is vital that

courts abide by this rule to ensure that a defendant’s liberty is not compromised because of

uncertainties in an agreement written by the government. But in Mr. Crawford’s case, the Fourth

Circuit did the opposite. It eschewed this principle and denied Mr. Crawford the right to appeal

based on the government’s post hoc re-interpretation of its own ambiguous phrasing. To the extent

that there was any ambiguity in Mr. Crawford’s plea agreement, the Fourth Circuit broke with the

law of every other Circuit by construing it against Mr. Crawford and in favor of the government,

thereby depriving Mr. Crawford of his right to appeal his sentence. In so doing, the Fourth Circuit

has now split from the other Circuits. It is important that this Court grant certiorari to resolve this

split and ensure that a defendant’s liberty does not turn on the government’s post hoc reinterpretations of contractual ambiguities created by the government itself.

A.

Every Court of Appeals has held that ambiguity in a plea agreement must be

construed in the favor of the defendant.

Though this Court “has yet to address in any comprehensive way the rules of construction

appropriate for disputes involving plea agreements,” it has explained that “the law of commercial

contract may in some cases prove useful as an analogy or point of departure in construing a plea

agreement, or in framing the terms of the debate.” Ricketts v. Adamson, 483 U.S. 1, 16 (1987)

8

(Brennan, J., dissenting). Consistent with this framework, every Circuit has held that in plea

agreements, as in other contracts, ambiguity is construed against the drafting party—in this case,

the government. 7

Courts have grounded this principle in two primary considerations. First, “the Government

generally drafts the agreement and enjoys significant advantages in bargaining power.” In re Altro,

7

See United States v. Morales-Arroyo, 854 F.3d 118, 120 (1st Cir. 2017) (“We interpret

plea agreements under basic contract principles and construe ambiguities in favor of allowing the

appeal to proceed.”); United States v. Stearns, 479 F.3d 175, 178 (2d Cir. 2007) (“We interpret

plea agreements de novo in accordance with principles of contract law, looking to the parties’

reasonable understanding of the agreement’s terms and resolving any ambiguities in the

defendant’s favor. Moreover, and specifically relevant here, we construe waiver of a right to

appeal in a plea agreement narrowly.”); United States v. Williams, 510 F.3d 416, 422 (3d Cir.

2007) (“In view of the government’s tremendous bargaining power[,] courts will strictly construe

the text against the government when it has drafted the agreement. Thus, any ambiguities in a

plea agreement must be construed against the government.” (internal quotation marks and

alterations omitted)); United States v. Tate, 845 F.3d 571, 575 (4th Cir. 2017) (“[W]e read a plea

agreement’s plain language in its ordinary sense. Moreover, any ambiguities in a plea agreement

are construed against the government as its drafter.” (internal quotation marks and citations

omitted)); United States v. Escobedo, 757 F.3d 229, 233 (5th Cir. 2014) (“We construe a plea

agreement like a contract, seeking to determine the defendant’s reasonable understanding of the

agreement and construing ambiguity against the Government.” (internal quotation marks and

alterations omitted)); United States v. Moon, 808 F.3d 1085, 1088 (6th Cir. 2015) (“The court

construes plea agreements using general contract principles, including construing any

ambiguities in an agreement against the government.); United States v. Munoz, 718 F.3d 726,

729 (7th Cir. 2013) (“[W]e interpret a plea agreement based on the parties’ reasonable

expectations and construe ambiguities against the government as the drafter.”); United States v.

Torres-Rivas, 825 F.3d 483, 485 (8th Cir. 2016) (“Where a plea agreement is ambiguous, the

ambiguities are construed against the government.” (internal quotation marks and alterations

omitted)); Davies v. Benov, 856 F.3d 1243, 1247 (9th Cir. 2017) (“The government, as the

drafter of th[e] plea agreement, is responsible for any lack of clarity such that ambiguities are

construed in favor of the defendant.” (internal quotation marks omitted)); United States v.

Jordan, 853 F.3d 1334, 1341 (10th Cir. 2017) (“[A]mbiguities in plea agreements are construed

against the government . . . .”); United States v. Harris, 376 F.3d 1282, 1287 (11th Cir. 2004)

(“[A]ll ambiguities in [a plea] agreement must be construed against the government.”); United

States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016) (“But we will not bar the door to a criminal

defendant’s appeal if his waiver only arguably or ambiguously forecloses his claims. . . .

Ambiguity in a plea agreement, as in any other type of contract, is construed against the

drafter.”).

9

180 F.3d 372, 375 (2d Cir. 1999); accord United States v. Gottesman, 122 F.3d 150, 152 (2d Cir.

1997) (government as drafter “has an overwhelmingly superior bargaining position”). Thus, under

standard contract law principles, any ambiguities should be construed against the government, as

drafter. Second, “plea agreements . . . are unique contracts in which special due process concerns

for fairness and the adequacy of procedural safeguards obtain.” Altro, 180 F.3d at 375 (internal

quotation marks and alterations omitted). For, “unlike ordinary contracts, plea agreements call for

defendants to waive fundamental constitutional rights . . . .” Id. Accordingly, courts “hold the

Government to the most meticulous standards of both promise and performance.” Id. (internal

quotation marks omitted).

As explained recently by the Seventh Circuit:

Plea agreements are contracts through which defendants bargain away fundamental

rights. We therefore construe plea agreements according to the ordinary principles

of contract law, but with a heightened obligation both to secure for defendants the

benefits of their negotiation and to restrict only those rights they properly

relinquished.

Cross v. United States, --- F. 3d ----, 2018 WL 2730774 at *7 (7th Cir. June 7, 2018) (internal

citation omitted). The Eighth Circuit has explained the heightened burden on the government in

construing plea agreements is grounded not just in contractual principles or the protection of the

defendant’s constitutional due process rights, but also in “concerns for the honor of the

government, public confidence in the fair administration of justice, and the effective administration

of justice in a federal scheme of government.” United States v. Jensen, 423 F.3d 851, 854 (8th

Cir. 2005) (internal quotation marks omitted). Thus, the Circuits have uniformly discountenanced

efforts by the government to advance “narrow interpretations of language within a plea agreement

where such a construction would violate the spirit of that agreement.” United States v. Giorgi, 840

F.2d 1022, 1026 (1st Cir. 1988). “A plea agreement is not an appropriate context for the

10

Government to resort to a rigidly literal approach in the construction of language.” United States

v. Bowler, 585 F.2d 851, 854 (7th Cir. 1978).

Thus, in interpreting plea agreements, the Circuits have agreed that courts must “hold the

Government to the most meticulous standards of both promise and performance,” Altro, 180 F.3d

372 at 375 (internal quotation marks and alterations omitted), and that, conversely, to permit the

government to seize upon ambiguous language to its advantage and the defendant’s detriment

violates due process. Jensen, 423 F.3d at 854. The Circuit Courts of Appeals have uniformly

recognized “a heightened obligation” to ensure defendants are not deprived of the benefits of their

agreement by strictly construing all ambiguities in the defendant’s favor and against the

government. Cross, 2018 WL 2730774, at *7.

B.

The Fourth Circuit has created a Circuit split by construing any ambiguity

in Mr. Crawford’s plea agreement against him.

To the extent that there was any ambiguity in Mr. Crawford’s plea agreement, the Fourth

Circuit construed it in favor of the government and against Mr. Crawford. In so doing, the Fourth

Circuit has departed from the unequivocal holding in all other Circuits that ambiguity in a plea

agreement must be construed against the government—the drafter of the plea agreement.

The Fourth Circuit’s departure from this time-honored rule is particularly problematic in

the instant case because the express language of the appellate waiver provision in the plea

agreement can be reasonably read to have given Mr. Crawford grounds to appeal his sentence.

Thus to deny Mr. Crawford the right to appeal denies him the benefit he thought he was reserving

for himself in entering into the plea agreement with the government. Specifically, the appellate

waiver language provided that Mr. Crawford preserved his right to appeal if the court “find[s] that

U.S.S.G. § 2E2.1(c)(1) applies . . . resulting in a base offense level of 43.” App. at 10. On appeal,

the government did not dispute that the district court applied § 2E2.1(c)(1), which in turn cross11

references the first-degree murder guideline at § 2A1.1, which automatically sets the base offense

level at 43. Nonetheless, the government argued in its motion to dismiss Mr. Crawford’s appeal

that the base offense level was not, in fact, 43. Instead, the government argued that Mr. Crawford’s

sentence was predicated on a base offense level of 38, and, accordingly, Mr. Crawford did not

have a right to appeal his sentence. That is an unreasonable interpretation, and, at minimum, is

certainly not mandated by the plain language of the agreement.

Although the court departed downward to a temporary adjusted offense level of 38, that

was not the base offense level. The cross-reference at § 2E2.1(c)(1) provides no option to set a

base offense level at 38. Rather, the cross-reference at § 2E2.1(c)(1) directs the court to apply the

first-degree murder guideline at § 2A1.1, which, in turn, sets one (and only one) base offense level:

43. Accordingly, the most reasonable reading of the plea agreement language is in fact the

interpretation Mr. Crawford advanced on appeal, i.e., that Mr. Crawford had a right to appeal the

district court’s application of the § 2E2.1(c)(1) cross-reference. And to the extent there was any

ambiguity in the plea agreement, the Fourth Circuit should have read such ambiguity as permitting

Mr. Crawford to pursue his appeal, rather than adopting a rigidly narrow construction that

precludes an appeal.

Mr. Crawford’s reading of the appellate waiver provision in the plea agreement is further

reinforced by the Sentencing Guidelines’ commentary to the first-degree murder guideline at

§ 2A1.1. That commentary expressly labels any adjustment down from the base offense level of

43 not as a new base offense level but as a “downward departure” from a previously set base

offense level. See § 2A1.1 cmt. n.2(B) (encouraging the district court to “downward[ly] depart[]”

from the first-degree murder base offense level of 43 where the defendant “did not cause the death

intentionally or knowingly”). A downward departure does not change the base offense level;

12

rather, a downward departure is a departure from a certain offense level. Without a previously set

base offense level to depart downward from, there could be no downward departure. The

government noted as much at Mr. Crawford’s sentencing hearing, informing the court, “There is,

of course, also available to the Court an area in between 43 [the base offense level for first-degree

murder] and 38 [equivalent to the base offense level for second-degree murder] should it decide to

depart but not all the way down as low as the guidelines note indicates down to 38.” App. at 33

(emphasis added). Thus, the government itself acknowledged that if the cross-reference applied,

the base offense level would be 43, and any reduction from that offense level would be a departure

(not a new base offense level).

Even more, numerous decisions from the Fourth Circuit prior to Mr. Crawford’s entering

into his plea agreement had clearly indicated that applying the § 2A1.1 first-degree murder

guideline sets the base offense level at 43, even if the district court were to thereafter downwardly

depart from it to a lower offense level. See, e.g., United States v. Carr, 303 F.3d 539, 545 (4th

Cir. 2002) (district court applied the arson guideline’s cross-reference to first-degree murder

guideline, § 2A1.1, setting “base offense level at 43”; defendant thereafter requested a “downward

departure” under the application note to § 2A1.1 for not causing death “intentionally or

knowingly”); United States v. Gullett, 75 F.3d 941, 949 (4th Cir. 1996) (district court applied the

arson guideline’s cross-reference to first-degree murder guideline, § 2A1.1, setting the defendant’s

“base offense level” at 43; the district court thereafter applied a two-level enhancement for

obstruction under § 3C1.1, after which district court was “free to depart downward” under the

application note to § 2A1.1 for not causing death “intentionally or knowingly”); Williams v. United

States, 2007 WL 9655847 at *3 (D. Md. Aug. 31, 2007) (“Under the Sentencing Guidelines, the

cross-reference applies if a murder was committed in furtherance of the conspiracy. See U.S.S.G.

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§ 2D1.1(d)(1). The cross reference increases the base offense level to 43. See U.S.S.G. § 2A1.1.

The guidelines provide, however, that the Court should consider a downward departure of up to

ten levels if the defendant ‘did not cause the death intentionally or knowingly.’ U.S.S.G. § 2A1.1

Application Note 1.” (emphasis added)).

In fact, at Mr. Crawford’s Rule 11 hearing, the government acknowledged its

understanding that the ultimate offense level may differ from the base offense level of 43 set by

§ 2A1.1, via § 2E2.1(c)(1), and agreed that the relevant criterion for Mr. Crawford’s appellate

rights was whether the § 2E2.1(c)(1) cross-reference were applied. At the Rule 11 hearing, in an

exchange with the government, the district court emphasized the likelihood of such a downward

departure after application of § 2E2.1(c)(1), even specifically noting that the court may “end up at

38”—an offense level commensurate with the base offense level for second-degree murder. The

exchange went as follows:

THE COURT: Now, . . . again, if in regard to the extortion guidelines I determined

a guideline above 20 . . . . If I based that upon the cross-reference, certainly he could

appeal that, correct?

MR. ZELINSKY: Yes, Your Honor. If you base that upon the cross-reference, he

would be able to appeal that.

....

MR. ZELINSKY: . . . The only thing that he may appeal is a finding, as contained

in Paragraph B on Page 8 [of the plea agreement] under United States Sentencing

Guideline 2E2.1(c)(1) and a departure under 5K2.1. Those are the only sentencing

guideline issues that he may appeal.

....

MR. ZELINSKY: Under Paragraph B, the only thing that the defendant has

reserved on appeal is 2E2.1(c)(1), as well as 5K2.1.

....

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THE COURT: That’s all I want to do, is just make it clear that that’s what your

position is.

MR. ZELINSKY: That is the position as contained in the plea agreement, Your

Honor. And the government will not ask for or seek any other calculations, save

those contained in the plea agreement. As previously noted, the determination,

ultimate determination will be left to the Court. The defendant’s abilities to appeal

are limited to those contained in Paragraph B on Page 8 [of the plea agreement];

that is 2E2.1(c)(1) and 5K2.1.

THE COURT: Well, you’re saying you’re not going to seek. But you recognize that

you can contend for 43, and I could end up at 38.

MR. ZELINSKY: And if the Court does not get there through 5K2.1 or 2E2.1(c)(1),

then the defendant has waived his right to appeal that calculation, Your Honor.

App. at 236-237 (emphases added).

In its final statement in the above passage, the government recognized that the inverse

scenario was preserved for appeal: if the district court did arrive at Mr. Crawford’s sentence via

either § 5K2.1 or § 2E2.1(c)(1), then Mr. Crawford’s right to appeal was preserved—regardless of

whether the court thereafter applied any other potential adjustments or departures. Accordingly,

by applying the cross-reference at § 2E2.1(c)(1), the district court necessarily set the base offense

level at 43, and Mr. Crawford’s right to appeal was preserved—a proposition with which the

government appeared to agree at the time of the Rule 11 hearing.

In sum, based on the express language of the plea agreement, the plain language of the

§ 2E2.1(c)(1) cross-reference and the § 2A1.1 first-degree murder guideline, the guideline

commentary to the first-degree murder guideline, case law interpreting the guideline, and the

government’s own admissions, the Fourth Circuit should have construed any ambiguity in the plea

agreement as permitting Mr. Crawford to appeal the district court’s unequivocal application of the

§ 2E2.1(c)(1) cross-reference—regardless of the final offense level the district court “end[ed] up

at.” App. at 237.

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In ruling otherwise, the Fourth Circuit has created a Circuit split. By construing any

ambiguity—to the extent it existed—in the plea agreement against Mr. Crawford rather than

against the government, the Fourth Circuit’s decision contravenes the precedent of every other

Circuit. In so doing, the Fourth Circuit has not only deprived Mr. Crawford from appealing a

sentence that holds him accountable for a murder for which he was not convicted, but has also set

a dangerous precedent that grants the government unprecedented power to draft plea agreements

with embedded ambiguities that it now knows the Fourth Circuit will construe in its favor. Such

favoritism toward the government in construing government-drafted ambiguities in the

government’s favor will also discourage defendants from entering into plea agreements at all. This

Court should grant certiorari and reverse this novel precedent that violates the longstanding rule

in every other Circuit that any ambiguity in a plea agreement must be construed against the

government. 8

CONCLUSION

For the foregoing reasons, Mr. Crawford respectfully requests that this Court grant his

petition for writ of certiorari.

8

Moreover, Mr. Crawford’s appeal waiver provision also allowed him to appeal his sentence

if the district court applied the “death departure” under U.S.S.G. § 5K2.1. The court did apply this

departure, and the government agreed that it was applied. App. at 203, 212, 215. Yet the Fourth

Circuit held that Mr. Crawford had “abandoned that claim on appeal.” App. at 2. This is incorrect.

In his opening appellate brief, Mr. Crawford demonstrated that application of both the

§ 2E2.1(c)(1) murder cross-reference and the § 5K2.1 death departure were based on the same

flawed district court finding that attributed responsibility for the murder of David Wutoh to Mr.

Crawford. In other words, the district court used a singular analysis to justify both the murder

cross-reference and the death departure. Mr. Crawford’s opening brief and opposition to the

government’s motion to dismiss argued that since the murder cross-reference application was

erroneous, the death departure was as well. App. at 158, 168-169, 171, 189, 240-245.

Accordingly, Mr. Crawford did not abandon this claim on appeal.

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Respectfully submitted,

JAMES WYDA

Federal Public Defender

/s/

PARESH S. PATEL

Assistant Federal Public Defender

6411 Ivy Lane, Suite 710

Greenbelt, Maryland 20770

Telephone:

(301) 344-0600

Facsimile:

(301) 344-0019

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