                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-3-2005

USA v. Wells
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1263




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Recommended Citation
"USA v. Wells" (2005). 2005 Decisions. Paper 1481.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1481


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                                                               NOT PRECEDENTIAL


                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _______________

                                      No. 04-1263
                                   ________________

                            UNITED STATES OF AMERICA
                                      v.

                                 VIVIAN WELLS,
                                           Appellant
                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                                 (D.C. No. 02-cr-00945)
                      District Judge: Honorable William H. Walls
                    _______________________________________

                         Submitted Under Third Circuit LAR 34.1(a)
                                 February 8, 2005
               Before: BARRY, FUENTES and BECKER, Circuit Judges

                                  (Filed: March 3, 2005)


                               _______________________

                                      OPINION
                               _______________________


BECKER, Circuit Judge.

       This is an appeal by Vivian Wells from a judgment in a criminal case entered

pursuant to a bargained for plea of guilty. While all but one of the issues raised on appeal
present sentencing issues which, because of problems related to United States v. Booker,

— U.S. —, 125 S. Ct. 738 (2005),1 require remand for resentencing in accordance with

this Court’s protocols, Wells raises one arguably non-Booker issue that we will deal with.

Because the parties are fully familiar with the background facts and procedural history,

we limit our discussion largely to our ratio decidendi.

       Wells and her brother Benye were charged in a 17-count indictment with various

offenses arising out of an identity theft scheme. Pursuant to a written plea agreement,

Wells pleaded guilty to count 1 of the indictment, charging her with conspiracy to

produce false identification documents, 18 U.S.C. § 1028(a)(1), and with fraudulently

using one or more unauthorized access devices to obtain things of value aggregating

$1,000 or more, 18 U.S.C. § 1029(a)(2), all in violation of 18 U.S.C. § 371, the general

conspiracy law.

       The plea agreement reserved Wells’ (and the government’s) right to argue at

sentencing about the applicability of U.S.S.G. § 3B1.2 (mitigating role). The relevant

provisions are as follows:

               Except as otherwise provided in this agreement, this Office reserves
       its right to take any position with respect to the appropriate sentence to be
       imposed on Ms. Wells by the sentencing judge, to correct any
       misstatements relating to the sentencing proceedings, and to provide the
       sentencing judge and the United States Probation Office [with] all law and
       information relevant to sentencing, favorable or otherwise, including
       information provided by Ms. Wells before and after signing this agreement.

  1
   The District Court made factual findings regarding the amount of loss and the number
of victims, and denied several proposed downward departures.

                                             2
       ...

               This Office and Ms. Wells agree to stipulate at sentencing to the
       statements set forth in the attached Schedule A, which hereby is made a
       part of this plea agreement. . . . To the extent that the parties do not
       stipulate to a particular fact or legal conclusion, each reserves the right to
       argue the existence of and the effect of any such fact or conclusion upon
       the sentence.2

       The government made comments at sentencing concerning two sentencing

adjustments under U.S.S.G. § 2B1.1(b) that, as we read the agreement, were authorized

under its plain language.3 Nothing that we can find in the plea agreement precluded the

government from commenting on these adjustments, and the government expressly

reserved the right to take any position on any sentencing issue not specifically addressed

in the agreement. The plea agreement contained no stipulation to the appropriate offense

level that could be implicated by the government’s comments. Wells nonetheless submits


  2
   The agreement also contains a merger clause, making it fully integrated. The clause
provides:
      This agreement constitutes the full and complete agreement between Ms.
      Wells and this Office and supersedes any previous agreement between
      them. No additional promises, agreements, or conditions have been entered
      into other than those set forth in this letter, and none will be entered into
      unless in writing and signed by the parties.
  3
   The two adjustments are: (1) the two-level upward adjustment of U.S.S.G.
§ 2B1.1(b)(2)(A), for more than 10 but fewer than 50 victims; and (2) the two-level
upward adjustment of former U.S.S.G. § 2B1.1(b)(9) (now § 2B1.1(b)(10)), for
involvement in the offense of the possession or use of device-making equipment, the
unauthorized transfer or use of any means of identification unlawfully to produce or
obtain any other means of identification, or the possession of five or more means of
identification that unlawfully were produced from another means of identification.
However, the government took no official position on the conclusions of the Probation
Office on the two adjustments unmentioned in the plea agreement or its stipulations.

                                              3
that the District Court erred in not ruling that the government breached the agreement in

arguing for § 2B1.1 enhancements not contained in the plea agreement.

       The essence of Wells’ argument is that the plea agreement, in which the parties

reserved their right to argue “about the applicability of § 3B1.2 (mitigating role)” at

sentencing “reflects an implicit understanding that no other enhancements were

considered by the parties to be applicable.” We have, however, rejected attempts by

defendants to claim that the government breached an “implicit” understanding in a plea

agreement. See United States v. Medford, 194 F.3d 419, 423 & n.4 (3d Cir. 1999). This

result is buttressed by the merger clause of the agreement. See supra note 3. In sum,

because the plea agreement contained no stipulation whatsoever concerning the

challenged adjustments, and because the government expressly reserved the right to take

any position on a sentencing issue not otherwise addressed in the agreement, the

government’s comments were proper, and there was no breach.

       Appellant challenges her sentence under United States v. Booker, — U.S. —, 125

S. Ct. 738 (2005). Having determined that the sentencing issues appellant raises are best

determined by the District Court in the first instance, we will vacate the sentence and

remand for re-sentencing in accordance with Booker.

       We will affirm the judgment of conviction, vacate the sentence, and remand to the

District Court for re-sentencing.




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