                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1625




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No: 02-1625
                                      ___________

                           UNITED STATES OF AMERICA

                                              v.

                                DOUGLAS JOHNSON,

                                                   Appellant
                                  _________________

                    On Appeal From the United States District Court
                        for the Middle District of Pennsylvania

                District Court Judge: The Honorable Thomas I. Vanaskie
                              (D.C. Criminal No. 00-cr-59)

                                   ________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    July 10, 2003

                     Before: NYGAARD, SMITH, Circuit Judges,
                             and IRENAS,* District Judge.

                            (Opinion Filed: July 29, 2003)
                             _______________________
                          _____________________________

                               OPINION OF THE COURT
                              ________________________

_______________
      *Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
SMITH, Circuit Judge:

I.     INTRODUCTION

       Appellant Douglas Johnson was indicted for one count of interstate transport of a

stolen motor vehicle, in violation of 18 U.S.C. § 2312, and one count of transport of a

minor in interstate commerce with intent to engage in sexual activity, in violation of 18

U.S.C. § 2423. Johnson pleaded guilty to Count 1 of the indictment, pursuant to a plea

agreement, and was sentenced to 100 months imprisonment. On appeal, Johnson argues

that the District Court erred in enforcing the plea agreement and refusing to permit

Johnson to withdraw his guilty plea, and in departing upward from the applicable

Sentencing Guidelines range. We agree with the District Court that Johnson’s plea

agreement is enforceable and that, pursuant to the agreement, Johnson waived his right to

appeal his sentence. Therefore, we will affirm the District Court’s denial of Johnson’s

motion to withdraw his guilty plea, and dismiss Johnson’s appeal of his sentence for lack

of jurisdiction.

II.    FACTS AND PROCEDURAL HISTORY

       Because we write only for the parties, who are familiar with the facts of this case,

we recite only those facts relevant to the disposition of this appeal. Johnson was indicted

for stealing a truck in Central Pennsylvania and driving it to California, as well as for

transporting a female minor across state lines for the purposes of engaging in sexual

activity under circumstances that would violate Pennsylvania law.

                                              2
        On the eve of trial, Johnson entered into a plea agreement in which he agreed to

plead guilty to Count 1 of the indictment, interstate transport of a stolen motor vehicle.

Pursuant to the plea agreement,

        the parties agree[d] to recommend as follows:
        A. An upward departure to an offense level [of] 24 and criminal history
        category 6 is appropriate. The resultant guideline range is imprisonment for
        a term of 100 to 125 months.
        B. The Government will recommend imprisonment for a term of 100
        months.

The plea agreement noted Johnson’s understanding that “none of these recommendations

are binding upon either the Court or the United States Probation Office.” In addition, the

plea agreement stated that Johnson could not withdraw his guilty plea simply because the

Court imposed a sentence with which he was dissatisfied, or because the Court declined

to follow any of the recommendations contained in the plea agreement. Finally, Johnson

waived his right to appeal his sentence. The agreement noted that

        [t]he defendant is aware that Title 18, United States Code, Section 3742
        affords a defendant the right to appeal the sentence imposed.
        Acknowledging all of this, the defendant knowingly waives the right to
        appeal any sentence imposed within the statutory maximum, or the manner
        in which that sentence was determined, on the grounds set forth in Title 18,
        United States Code, Section 3742, or any other grounds.

The parties deleted the following provision from the plea agreement by striking it out and

initialing it:

        At the sentencing, the United States will be permitted to bring to the Court’s
        attention, and the Court will be permitted to consider, all relevant
        information with respect to the defendant’s background, character, and
        conduct including the conduct that is the subject of the charges which the

                                              3
       United States has agreed to dismiss, and the nature and extent of the
       defendant’s cooperation, if any. The United States will be entitled to bring
       to the Court’s attention and the Court will be entitled to consider any failure
       by the defendant to fulfill any obligation under this agreement.

       At the guilty plea hearing, the Assistant U.S. Attorney reiterated the key terms of

the plea agreement, namely: (1) the parties jointly agreed to recommend that an upward

departure is appropriate, and that the government would recommend a 100 month

sentence; and (2) Johnson waived his right to appeal in the plea agreement. Johnson

confirmed that he had listened to the Assistant U.S. Attorney’s statements, and responded

that [the plea agreement] “is a recommendation, but we’ll go by whatever the Court

does.” During his colloquy with the Court, Johnson acknowledged that he had reached an

agreement with the government regarding his criminal history category and the

appropriate Sentencing Guidelines range. The Court also noted that “I understand that

you’ve waived your right to appeal your conviction and sentence,” and Johnson

responded in the affirmative.

       Johnson appeared for sentencing on January 31, 2002. At that hearing, the

government informed the Court that, just that day, it had received a letter indicating that

Johnson was prepared to go on the record as denying that he ever had sexual relations

with the victim. The government acknowledged that it had been “advised that whether or

not this is a contested fact does not affect the guideline calculation in this case.”

Consequently, the government noted that the Court need not hold a fact-finding hearing

on that issue. Counsel for the defense agreed that whether Johnson had engaged in sexual

                                               4
relations with the victim “was not a factor in increasing the guideline” range.

Nevertheless, defense counsel argued that the Court should either “reject[] the plea

agreement, or in the alternative, reject[] the recommendation [contained in the plea

agreement] for the upward departure.”

       The essence of defense counsel’s argument seemed to be a belief that, although his

client had agreed to the terms of the plea agreement, the 100-125 month Guidelines range

agreed upon in the plea agreement was improperly predicated on Johnson’s alleged

misconduct with the victim. Counsel asserted that the Court should reject the plea

agreement because any consideration of Johnson’s alleged misconduct with the victim

constituted a violation of the plea agreement by the government, entitling Johnson to

withdraw his plea. In the alternative, counsel argued that even if the District Court did

not reject the plea agreement, any upward departure, which would result in a sentence of

between 100 and 125 months, would result in a “tremendously disproportionate”

sentence. He also claimed that there was “no legal basis” for an upward departure,

because, aside from the plea agreement, Johnson did not have notice of the reason for the

departure.

       The District Court responded as follows:

               [T]he plea agreement didn’t need to specify the reasons for that
       upward departure, at the time, because it seemed it was an agreed-upon
       matter.
               I will tell you that free from the plea agreement itself, and if I have to
       give you notice, we’ll adjourn this proceeding and we’ll bring you back
       after you’ve had an opportunity to be prepared to respond to it, but I think

                                               5
       Mr. Johnson’s criminal history seriously understates the severity of his
       criminal record, even though he’s at the highest level. It certainly doesn’t,
       in my judgment, provide any confidence as to the likelihood that he will not
       commit another crime, in fact, I think it seriously understates that fact,
       given his record.
               And independent of the plea agreement itself, I would depart
       upward, on the basis of that factor or I’d consider it. So I’m prepared to
       adjourn this sentencing proceeding, give you formal notification that I
       consider an upward departure in the guideline range on that ground
       appropriate, in addition to any other arguments the government wants to
       make, with respect to appropriateness of the upward departure.
               If the Government wants to ask me to consider departing upward on
       the issue of whether the relevant conduct included sex with a 14-year-old,
       and if the Government wants to put on evidence, then, the Government will
       have the opportunity to do that. I will not consider that, without evidence
       being presented.

Following this statement by the Court, Johnson requested additional time to prepare a

response to whether an upward departure was warranted because his criminal history

category seriously under-represented the seriousness of his prior criminal record. The

Court agreed, and postponed Johnson’s sentencing. When defense counsel asked the

government whether it intended to ask for an upward departure “on the basis of the

[female minor] issue,” the government responded that it would “be asking for an upward

departure on the basis of the plea agreement.” The government was not certain whether it

would present testimony by the victim, but agreed to give the defense seven days notice if

it intended to present evidence on that question.

       At the sentencing proceeding on February 26, 2002, the Court heard arguments on

the withdrawal of plea issue. Defense counsel asserted that, under contract law

principles, the Court had discretion to allow the withdrawal of a plea agreement where the

                                             6
other party has breached. Specifically, counsel argued that the government’s “bringing up

the other conduct involving the minor was a violation of the plea agreement because their

ability to do that was taken out when paragraph 14 was eliminated from the agreement at

the time of the plea.” The government asserted that it had not brought the defendant’s

misconduct with the victim into the case. Noting that the sexual misconduct with the

victim “is a matter which the Court, independent of the parties, has statutory authority to

consider,” the government asserted that it had “not breached the plea agreement in that

respect and therefore there would be no grounds for Mr. Johnson to withdraw his plea.

       The Court then reviewed the transcript of the January 31, 2002 proceeding to

determine whether the government had breached the plea agreement by indicating that

one basis for the upward enhancement was Johnson’s conduct with a minor. The Court

determined that there was “no basis for concluding that the government breached the plea

agreement at the proceeding,” and that therefore, Johnson should not be allowed to

withdraw from the plea agreement on that ground. Defense counsel presented no other

arguments in support of withdrawal of the plea. The victim was in court on the

sentencing date, and the government indicated that she was prepared to testify if the Court

wished. However, the government reiterated on the record that Johnson’s conduct with

the victim was not a basis for the government’s sentencing recommendation. The Court

proceeded to impose a sentence of 100 months without hearing the testimony of the

victim.



                                             7
III.   JURISDICTION

       The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291 to review Johnson’s appeal of the District Court’s

denial of Johnson’s request to withdraw his guilty plea. We lack jurisdiction to hear the

merits of Johnson’s appeal regarding the length of his sentence.

IV.    STANDARD OF REVIEW

       Whether the government’s conduct violated the terms of the plea agreement is a

question of law and our review is plenary. United States v. Moscahlaidis, 868 F.2d 1357,

1360 (3d Cir. 1989). We examine the legality of the waiver provision in Johnson’s plea

agreement de novo. United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).

V.     ANALYSIS

       A.     The District Court’s refusal to permit Johnson to withdraw his guilty plea
              was proper

       Johnson contends that the District Court erred in denying his request to withdraw

his guilty plea, asserting that the government breached the plea agreement by urging the

Court to consider conduct relating to Johnson’s interactions with the minor victim. If the

government breaches a plea agreement, the case must be remanded either for resentencing

or withdrawal of the defendant’s guilty plea. Moscahlaidis, 868 F.2d at 1360 (citing

Santobello v. New York, 404 U.S. 257 (1971). Upon review of the record, we conclude

that the government did not improperly urge the Court to consider Johnson’s conduct with

the victim.

                                             8
       The government’s statement on January 31, 2002 that it had received a letter

indicating that Johnson was prepared to deny having had sexual relations with the victim

did not constitute a breach. The government explicitly stated that any conduct by Johnson

with the victim did not affect the Guidelines calculation, and defense counsel agreed. At

that hearing, the District Court explicitly stated that it would not depart upward on the

basis of Johnson’s alleged relations with the victim unless the government presented

evidence on that issue. The government never presented evidence on that issue. The

government clearly stated that it was basing its request for an upward departure on the

language of the plea agreement itself, and also on the defendant’s prior criminal record.

We are satisfied that the government did not breach the plea agreement, and that the

District Court properly accepted and enforced that agreement. 1



  1
    Although he concurs in the judgment, Judge Irenas emphasizes his dissatisfaction
with the procedure followed by the District Court. It is clear that the parties agreed to a
substantial upward departure in the plea agreement, but the basis for that upward
departure is murky. The parties did not consider U.S.S.G. § 4A1.3, which deals with the
adequacy of the defendant’s criminal history category, although the District Court
indicated that a departure under that provision might be appropriate. However, the 100
month sentence agreed to in the plea agreement was significantly larger than the 15-21
months Johnson would have received for Count I alone (assuming he received credit for
acceptance of responsibility).
        Judge Irenas concedes that it is entirely possible that Johnson decided to enter into
the plea agreement because he could eliminate a large risk on Count II by accepting an
increased sentence on Count I. By having Count II dismissed, Johnson also avoided
being subject to Megan’s Law registration. But because one of the primary motivations
for the Sentencing Guidelines was to promote truth in sentencing, Judge Irenas believes
that a plea agreement which provides for a substantial upward or downward departure
from a sentencing range which would apply to the facts admitted by the defendant in his
plea colloquy should set forth with specificity the basis for the departure. Because most

                                              9
                  B.    Johnson’s waiver of his right to appeal deprives this Court of jurisdiction
                        to review the length of his sentence

       Having decided that the plea agreement is enforceable and that Johnson did not have a right

to withdraw his plea, we lack jurisdiction to consider whether the District Court abused its

discretion in departing upward when sentencing Johnson. It is undisputed that Johnson’s plea

agreement contains a waiver of his right to appeal his sentence. “Waivers of appeals, if entered into

knowingly and voluntarily, are valid, unless they work a miscarriage of justice.” Khattak, 273 F.3d

at 563. At sentencing, the District Court fully complied with Federal Rule of Criminal Procedure 11

and determined that Johnson’s plea was entered into knowingly and voluntarily. Having reviewed

the record, we find no evidence of injustice in Johnson’s sentencing. Because Johnson has not

proven that his plea was not knowing or voluntary or that the waiver worked an injustice, we find

that the waiver-of-appeal is valid, and that we lack jurisdiction to review the length of Johnson’s

sentence. Accordingly, we will dismiss this portion of the appeal and affirm the judgment of the

District Court.

VI.    CONCLUSION

       For the foregoing reasons, the judgment of the District Court will be affirmed.




          plea agreements provide that sentencing recommendations or agreements by the parties
          are not binding on the court, a clear statement of the reasons for a proposed departure
          would assist the district court in making a decision with respect to acceptance of the plea
          agreement and the imposition of an appropriate sentence.


                                                  10
TO THE CLERK:
     Please file the foregoing Opinion.

                                          By the Court:


                                          /s/ D. Brooks Smith
                                          Circuit Judge

Date: July 29, 2003




                                          11
