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


6-10-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3310




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"USA v. Bancroft" (2003). 2003 Decisions. Paper 470.
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                                                      NOT PRECEDENTIAL

            THE UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                            ___________

                            No. 02-3310
                            ___________


                  UNITED STATES OF AMERICA

                                 vs.

                   ROBERT BRUCE BANCROFT,

                                  Appellant.

                            ___________


    ON APPEAL FROM THE UNITED STATES DISTRICT COURT
       FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                    (D.C. Criminal No. 01-cr-00665-2)
           District Judge: The Honorable Eduardo C. Robreno

                            ___________

                      ARGUED MAY 20, 2003


BEFORE: SCIRICA, Chief Judge, NYGAARD, and BECKER, Circuit Judges.


                        (Filed: June 10, 2003)
Robert J. O’Shea, Jr., Esq. (Argued)
Kenney & O'Shea
1818 Market Street
Suite 3520
Philadelphia, PA 19103

             Counsel for Appellant

Ewald Zittlau, Esq. (Argued)
Suite 1250
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

             Counsel for Appellee


                                       ___________

                              OPINION OF THE COURT
                                   ___________


NYGAARD, Circuit Judge.

             Robert Bruce Bancroft appeals his sentence of 228 months for his

involvement in a conspiracy to distribute methamphetamine. The District Court declined

to grant the government's 18 U.S.C. § 3553(e) motion for departure below the mandatory

minimum after the government argued against its own motion during the sentencing

hearing. Bancroft asserts on appeal that the government violated the terms of his plea

agreement by this conduct. We have plenary review over questions of law pertaining to

the interpretation of plea agreements. United States v. Moscahlaidis, 868 F.2d 1357,

1360 (3d Cir. 1989). We will affirm the District Court.

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                                             I.

              Bancroft argues that the government violated the terms of the plea

agreement by making, but then arguing against, the § 3553(e) motion. When determining

if the government violated the plea agreement, we use three steps: “First, what are the

facts of the case, i.e., what are the terms of the agreement and the conduct of the

government; second, whether the conduct of the government violated the terms of the

plea agreement; and third, what is the appropriate remedy if the court concludes that a

violation occurred.” Moscahlaidis, 868 F.2d at 1360.

              Our inquiry regarding the § 3553(e) motion begins with a look at the

language of the agreement and the subsequent actions by the government. The plea

agreement required the government to “[m]ake a motion to allow the Court to depart

below any statutory mandatory minimums pursuant to 18 U.S.C. § 3553(e)” if the

government determined that Bancroft had provided “complete and substantial assistance”

with the investigation. The government, prior to sentencing, filed the § 3553(e) motion

requesting the appropriate departure. At the sentencing hearing, the government

acknowledged the motion and its affect of allowing the sentencing judge to depart, but

then argued against granting the § 3553(e) motion by detailing Bancroft's criminal history

and likelihood of recidivism. With this factual scenario in place, we move to the second

question under Moscahlaidis: did the conduct of the government violate the plea

agreement?



                                              3
              The government was permitted to make any argument it wished once it

fulfilled its obligation to file the bargained-for motions. United States v. Medford, 194

F.3d 419, 423 (3d Cir. 1999). In Medford, we addressed the near identical situation

where the “[d]efendants contend[ed] that the government violated the plea agreement by

filing a downward departure motion and then stating at the sentencing hearing that it did

not recommend a downward departure.” Id. at 422. The language of the plea agreement

in Medford was almost identical to that found in Bancroft’s agreement. Id. at 423 (“[T]he

plea agreement required the government ‘to make a motion to allow the Court to depart

from the Sentencing Guidelines pursuant to Sentencing Guidelines § 5K1.1, if the

government, in its sole discretion, determines that the defendant has provided substantial

assistance.’”). In Medford, we focused on the language merely requiring the government

to file the motion:

              We interpret the plain terms of the plea agreement to require
              only that the government file a § 5K1.1 motion in order to
              give the District Court the power (“to allow the Court”) to
              depart downward under that provision. Contrary to
              defendants' suggestions, the plea agreement did not require
              the government to recommend a downward departure at the
              sentencing hearing; nor did it prohibit the government from
              stating at the sentencing hearing that it did not recommend
              departure. Therefore, when the government filed the 5K1.1
              motion, it complied with the terms of the plea agreement.

Id. Although Medford dealt with a § 5K1.1 motion, the principle announced is

indistinguishable from our case and controls our outcome. Once the government files the




                                             4
motion for departure, it has fulfilled its obligation under the plea agreement and is free to

argue for or against the motion.

              Bancroft's second argument, that he did not “receive from the government

that which was reasonably due to him under the circumstances,” is also resolved by

Medford. Allegations of bad faith were addressed in Medford, where we confronted the

“contention that the government acted in bad faith by failing to make a more concerted

5K1.1 downward departure motion at the time of sentencing,” and found that because the

government fulfilled its obligation to file the motion, there was no bad faith. Id. at 423.

Here, because the government complied with the terms of the plea agreement by filing the

§ 3553(e) motion, its actions were not unreasonable or in bad faith.

                                              II.

              Bancroft makes two other arguments regarding the conduct of the

government in this case. First, he contends that the government did not make the nature

and extent of his cooperation known, in violation of the plea agreement. This argument

has no merit. At the sentencing hearing, the government attorney throughly explained

Bancroft's cooperation. See App. at 44–45.

              Bancroft’s final argument is that the government breached the plea

agreement by altering its sentencing recommendation at the time of sentencing. This

argument is equally unpersuasive. In the sentencing memorandum, the government

recommended “that a substantial sentence of imprisonment be imposed based upon the



                                              5
seriousness of the offense committed, the fact that the defendant had a prior felony drug

offense conviction, and the fact that the defendant is a career offender.” See App. at 39.

No definition of “substantial sentence” was given in the memorandum. At the sentencing

hearing, the government asked for a sentence of 20 years following an explanation of

Bancroft's criminal history and the nature of the current offense. Pursuant to the plea

agreement, the government did not contradict itself by simply defining a “substantial

sentence” to be 20 years at sentencing.

                                            III.

              For the foregoing reasons will we affirm the order of the District Court.




                                             6
_________________________


TO THE CLERK:

           Please file the foregoing opinion.




                                          /s/ Richard L. Nygaard_____________
                                          Circuit Judge




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