     Case: 16-40255   Document: 00513916982        Page: 1   Date Filed: 03/17/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 16-40255                             FILED
                                                                       March 17, 2017

consolidated w/ 16-40256
                                                                        Lyle W. Cayce
                                                                             Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

JAMES ROBERT KIRKLAND,

             Defendant - Appellant




                Appeals from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      James Robert Kirkland appeals his sentence for attempting to use a
means of interstate commerce to persuade, induce, entice, or coerce a minor to
engage in sexual activity for which any person can be charged with a criminal
offense, in violation of 18 U.S.C. § 2422(b). Kirkland pleaded guilty to the
offense pursuant to a plea agreement that required the Government to
recommend a sentence at the low end of the applicable guidelines range of 262–
327 months. At sentencing, however, rather than recommend the low end of
the guidelines range, the Government aggressively argued for a high-end
sentence; Kirkland did not object to this apparent breach of the plea
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agreement. The district court ultimately imposed a midrange sentence of 300
months of imprisonment. On appeal, Kirkland argues that the Government’s
breach of the plea agreement constituted reversible plain error.          For the
reasons that follow, we agree and therefore vacate the sentence and remand
for resentencing before a different district court judge.
                                        I
      In September 2015, an undercover detective, posing as the mother of
fictitious 11- and 14-year-old daughters, placed an advertisement on Craigslist
soliciting sexual partners for the fictitious girls. Kirkland, who at that time
was on supervised release following his 2010 conviction for failing to register
as a sex offender, responded to the advertisement and, over the course of
multiple email communications, expressed his desire to engage in sexual
conduct with the fictitious minors. After exchanging numbers and several text
messages with the detective, Kirkland made plans to meet the fictitious mother
at a mall in Corpus Christi, Texas. Kirkland arrived at the mall at the agreed
upon time and was arrested. Police found condoms and packets of lubricant
in his possession. After his arrest, Kirkland confessed that he intended to have
sexual intercourse with the fictitious minors.
      Kirkland was subsequently indicted on one count of attempting to use a
means of interstate commerce to persuade, induce, entice, or coerce a minor to
engage in sexual activity for which any person can be charged with a criminal
offense, in violation of § 2422(b). The United States Probation Office also
charged Kirkland with a violation of the conditions of his supervised release
and sought revocation.
      Kirkland pleaded guilty to the § 2422(b) offense pursuant to a plea
agreement.     Under the agreement, the Government was required to
recommend that Kirkland receive “a sentence of imprisonment at the low end
of the guideline[s] range.” The Government also reserved the right to set forth
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its version of the facts at sentencing, dispute the relevant provisions of the
guidelines, and to be released from its obligations under the agreement if
Kirkland committed any additional crimes after signing the agreement.
      The probation officer’s presentencing report (PSR) calculated a
guidelines range of 262–327 months of imprisonment, to which the
Government did not object and which the district court ultimately adopted.
The PSR also described Kirkland’s criminal history, which included a 1999
North Carolina conviction for indecent liberties with a child, involving
Kirkland’s fondling of his eleven-year-old niece. Because of this conviction’s
age, it was not assigned criminal history points. Kirkland’s criminal history
also included North Carolina convictions for failure to register as a sex
offender, bank robbery, and “unlawful concealment of two bags of candy,” and
a federal conviction for failure to register as a sex offender. The probation
office also submitted a sentencing recommendation, recommending that
Kirkland be sentenced to 300 months of imprisonment.
      At sentencing, the district court asked several times for the
Government’s recommended sentence as to the § 2422(b) offense. Despite its
obligation under the plea agreement to recommend the low end of the
guidelines range, the Government recommended the high end, 327 months of
imprisonment. In support of its recommendation, the Government presented
the testimony of Special Agent Heath Hardwick. Agent Hardwick described,
in great detail, Kirkland’s 1999 North Carolina conviction for indecent liberties
with a child, allegations of prior conduct of similar nature that did not result
in criminal proceedings, and Kirkland’s instant § 2422(b) offense.           The
Government also strongly argued in support of its recommendation for a
sentence at the high end of the guidelines range, citing the circumstances of
Kirkland’s offense, his prior criminal history, and the underrepresentation of
his criminal history in his criminal history category calculation.
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         When the district court and Kirkland discussed what sentence was
appropriate, Kirkland focused somewhat angrily on the Government’s request
for a sentence at the high end of the range and equated the requested
327-month term to a life sentence. Kirkland’s counsel argued on his behalf for
a below-guidelines sentence of 151 months. However, Kirkland and his counsel
did not object to the Government’s apparent breach of its obligation to
recommend the low end of the guidelines range.
         The district court sentenced to Kirkland to 300 months of imprisonment
as to the § 2422(b) offense, stating, “That is midpoint in the guideline range.
It also happens to be the recommended sentence from the United States
Probation Office, which, frankly, happens to coincide with my own independent
decision.” The district court explained its reasons for the sentence, including
Kirkland’s criminal history, the instant offense conduct, and the need to
protect the public.
         With respect to his supervised release, Kirkland pleaded true to a
violation of the terms. The probation office recommended twelve months of
imprisonment to be served consecutive to the § 2422(b) sentence, but the court
sentenced Kirkland to a consecutive term of twenty-four months. Kirkland
appealed his § 2242(b) sentence as well as his revocation sentence, and these
appeals were consolidated. However, Kirkland has abandoned any challenge
to his revocation sentence.
                                        II
         Kirkland challenges only the Government’s breach of the plea
agreement. Because Kirkland failed to object to the Government’s breach
before the district court, we review his challenge for plain error. See Puckett
v. United States, 556 U.S. 129, 133–34 (2009). Under this standard, we apply
a four-prong test to determine whether we have discretion to remedy a forfeited
error:
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       First, there must be an error that has not been intentionally
       relinquished or abandoned. Second, the error must be plain—that
       is to say, clear or obvious. Third, the error must have affected the
       defendant’s substantial rights, which in the ordinary case means
       he or she must show a reasonable probability that, but for the
       error, the outcome of the proceeding would have been different.
       Once these three conditions have been met, the court of appeals
       should exercise its discretion to correct the forfeited error if the
       error seriously affects the fairness, integrity or public reputation
       of judicial proceedings.
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (citations and
internal quotation marks omitted).
       The Government concedes that it erred by breaching the plea agreement
and that the error was clear or obvious. 1 However, the Government disputes
that this error affected Kirkland’s substantial rights or seriously affects the
fairness, integrity, or public reputation of judicial proceedings. For the reasons
that follow, we conclude that Kirkland has made a sufficient showing as to both
of these requirements.
       A. Effect on Substantial Rights
       In the context of sentencing, “[a]n error affects an appellant’s substantial
rights when there is a reasonable probability that, but for the error, he would
have received a lesser sentence.” United States v. Williams, 821 F.3d 656, 657–
58 (5th Cir.) (internal quotation marks omitted), reh’g denied, 833 F.3d 449
(5th Cir. 2016). The Government’s breach of its promise to recommend a lesser
sentence affects a defendant’s substantial rights unless the record indicates
that that the district court would have imposed the same sentence regardless
of the Government’s breach. See, e.g., id. at 658 (Government’s breach of plea


       1 The Government’s concession is correct. The plea agreement required the
Government to recommend a sentence at the low end of the guidelines range, but the
Government did not comply. We have previously found such a breach to be a clear or obvious
error. See United States v. Williams, 821 F.3d 656, 657–58 (5th Cir.), reh’g denied, 833 F.3d
449 (5th Cir. 2016).
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agreement affected defendant’s substantial rights where there was no
indication that the district court would have imposed the same sentence had
Government complied with the agreement); United States v. Bellorin-Torres,
341 F. App’x 19, 20–21 (5th Cir. 2009) (similar); United States v. Villarreal-
Rodriguez, 356 F. App’x 759, 761 (5th Cir. 2009) (similar). This principle
reflects both the applicable legal standard, under which a defendant need only
show a “reasonable probability” that the breach affected his sentence, see
Williams, 821 F.3d 656, 657–58, and the common sense understanding of the
important role the Government’s recommendation plays in sentencing, cf.
United States v. Navarro, 817 F.3d 494, 500 (7th Cir. 2016) (“[T]he Supreme
Court long ago recognized the importance of the government’s recommendation
on the sentence imposed.” (citing Santobello v. New York, 404 U.S. 257, 262
(1971)).
        In Williams, the plea agreement required the Government to recommend
a sentence at the bottom of the guidelines range, but the Government failed to
make the recommendation at sentencing, without objection from the
defendant.     821 F.3d at 657.    The district court ultimately sentenced the
defendant to the top of the guidelines range. Id. Reviewing for plain error, we
concluded that the Government’s breach affected the defendant’s substantial
rights because there was “no indication the district court would have been
unmoved by the Government’s recommendation for a lower sentence.” Id. at
658.
        The Government’s breach of its plea agreement with Kirkland is even
worse than its breach of the agreement in Williams. Here, the Government
did not merely remain silent, in breach of its promise to urge a low-end
sentence; rather, the Government aggressively argued for the high end of the
guidelines range. Thus, we must consider not only the possibility that the
district    court   would   have   been       influenced   by    the   Government’s
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recommendation for a low-end sentence but also the possibility that the district
court was influenced by the Government’s recommendation of, and argument
for, a high-end sentence.    In two unpublished decisions involving similar
circumstances, we concluded that the Government’s actions affected the
defendants’ substantial rights. See Bellorin-Torres, 341 F. App’x at 21; United
States v. Onwuka, 71 F.3d 878, 878 (5th Cir. 1995) (unpublished).
      The Government argues that the record in this case indicates that its
breach did not affect the district court’s sentence, and it points in support to
the district court’s consideration of the PSR, the guidelines range, the various
recommendations the court received, and the relevant sentencing factors. The
Government also highlights the district court’s statement that the 300-month
sentence it imposed was the “midpoint in the guideline range” and “also
happens to be the recommended sentence from the United States Probation
Office, which, frankly, happens to coincide with [the court’s] own independent
decision.”   On this basis, the Government asserts that there is sufficient
evidence that the district court would have imposed the same exact sentence
regardless of the Government’s breach. We cannot accept this contention.
      It is certainly true that the district court considered the relevant
circumstances and did not consider itself bound by the Government’s
recommendation.      After all, the court did not adopt the Government’s
recommendation for a high-end sentence but, instead, imposed a midrange
sentence. The district court also showed that it was willing to sentence above
any recommendation where it deemed fit, as it did with regard to the
revocation of Kirkland’s supervised release. However, the fact that the court
exercised independent judgment—which it must do in every case—does not
mean that the court did not also consider and give weight to the Government’s
recommendation. Indeed, the district court asked the Government for its
recommendation several times.
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      Moreover, the Government did not merely recommend a high-end
sentence but also strongly argued and presented testimony in support of that
recommendation, recounting in great detail the graphic and sexually explicit
facts involved in Kirkland’s offense of conviction and a prior offense and
emphasizing his criminal history and his violation of the conditions of his
supervised release. The testimony and argument by the Government filled
more than nine pages of the sentencing transcript. Therefore, the district court
may have been influenced not only by the Government’s recommendation, but
also by Government’s passionate emphasis of aggravating factors in support of
that recommendation, which brought public safety concerns to the forefront.
Cf. Navarro, 817 F.3d at 501 (the Government’s breach of the plea agreement
by arguing for an upward departure affected the defendant’s substantial rights
because it “focused the district court’s attention” on the relevant application
note, “with the weight of the [G]overnment’s recommendation behind it”).
      In sum, the record does not indicate that the district court would have
imposed the same 300-month sentence had the Government complied with its
obligations and recommended a low-end sentence instead of recommending
and arguing for a high-end sentence. See Williams, 821 F.3d at 658; Bellorin-
Torres, 341 F. App’x at 20–21; Villarreal-Rodriguez, 356 F. App’x at 761;
Onwuka, 71 F.3d at 878.       Accordingly, the Government’s breach affected
Kirkland’s substantial rights because there is a reasonable probability that,
but for the breach, he would have received a lesser sentence.
      B. Serious Effect on the Fairness, Integrity, or Public Reputation of
         Judicial Proceedings
      In the fourth prong of the plain-error analysis, we ask whether the
forfeited error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Molina-Martinez, 136 S. Ct. at 1343. This prong is not
automatically satisfied once the other three prongs are met. United States v.

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Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc). “However, the
Supreme Court has instructed that ‘the discretion conferred by Rule 52(b)
should be employed in those circumstances in which a miscarriage of justice
would otherwise result.’” Id. (quoting United States v. Olano, 507 U.S. 725,
736 (1993)).
      Whether a plain error would lead to a miscarriage of justice if left
uncorrected is determined “on a case-specific and fact-intensive basis.” Puckett
v. United States, 556 U.S. 129, 142 (2009). Nevertheless, the courts have
recognized that the Government’s breach of a plea agreement constitutes a
particularly egregious error that, in the absence of strong countervailing
factors, seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See, e.g., id. at 142–43 (stating that “when the Government
reneges on a plea deal, the integrity of the system may be called into question”
but noting that “there may well be countervailing factors in particular cases”);
Williams, 821 F.3d at 658 (concluding, without additional discussion, that “the
Government’s failure to fulfill its promise affects the fairness, integrity, and
public reputation of judicial proceedings” (alteration and internal quotation
marks omitted)); United States v. Whitney, 673 F.3d 965, 974 (9th Cir. 2012)
(“[I]n the absence of clearly countervailing factors, the government’s breach of
the parties’ plea agreement must be considered a serious violation of the
integrity of the plea bargain process and the judicial system.”); United States
v. Swanberg, 370 F.3d 622, 629 (6th Cir. 2004) (“[V]iolations of the plea
agreement on the part of the government . . . directly involve 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.”
(Internal quotation marks omitted)).
      This rebuttable presumption that the Government’s meaningful breach
of a plea agreement satisfies the fourth prong of the plain-error test appears to
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be based, in large part, on the inherent unfairness involved in the
Government’s     inducement     of   the    defendant’s   waiver   of   important
constitutional rights by making promises that it ultimately does not keep. See
United States v. Goldfaden, 959 F.2d 1324, 1328 (5th Cir. 1992) (“Defendants
. . . give up constitutional rights in reliance on promises made by prosecutors,
implicating the Due Process Clause once the court accepts their pleas. The
failure of the Government to fulfill its promise, therefore, affects the fairness,
integrity, and public reputation of judicial proceedings.” (Citation omitted))
abrogated on other grounds as recognized in United States v. Puckett, 404 F.3d
377, 384–85 (5th Cir. 2007); see also, e.g., Whitney, 673 F.3d at 974 (discussing
the Government’s inducement of the defendant’s waiver of important rights);
Swanberg, 370 F.3d at 629 (the Government’s breach of the plea agreement
serves to violate the defendant’s constitutional rights).
      It is important to highlight the rebuttable nature of this presumption.
In Puckett, the Supreme Court “emphasized that a per se approach to plain-
error review is flawed,” and stated that “countervailing factors in particular
cases” may warrant affirmance in the face of a meaningful plain error. 556
U.S. at 142–43 (some internal quotation marks omitted). The Court saw the
particular defendant in Puckett as a good example of such a case. Id. at 143.
Under Puckett’s plea agreement, the Government was to inform the district
court that it agrees that Puckett qualified for a three-level reduction in his
offense level for acceptance of responsibility. Id. at 131. Puckett’s sentencing
was delayed and did not take place for almost three years after the district
court accepted his plea. Id. at 132. During that time, Puckett engaged in
additional criminal activity. Id. At sentencing, the Government opposed the
reduction in Puckett’s offense level on that basis and thereby breached its
obligation under the plea agreement. See id. In discussing the fourth prong of
the plain-error test, the Court stated, “Given that [Puckett] obviously did not
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cease his life of crime, receipt of a sentencing reduction for acceptance of
responsibility would have been so ludicrous as itself to compromise the public
reputation of judicial proceedings.” Id. at 143 (emphasis in original).
      We find no similarly strong countervailing factors in the instant case. As
it did in the district court, the Government points on appeal to the disturbing
facts of Kirkland’s offense of conviction and to his equally disturbing criminal
history. The Government also suggests that Kirkland has benefited from the
“fortuitous operation” of the guidelines, which prevented Kirkland’s 1999
conviction from earning additional criminal history points.       However, the
Government was aware of the nature of Kirkland’s offense, his criminal
history, and the operation of the guidelines when, in the face of all of these
factors, it agreed to recommend the low end of the guidelines range in exchange
for Kirkland’s guilty plea and his surrender of his constitutional rights. As
Kirkland notes in his brief, the deplorable nature of his offenses is “precisely
why he bargained for the government’s statement that, notwithstanding those
facts, a sentence at the bottom of the advisory range was sufficient in light of
all the applicable sentencing factors.” The Government cannot extract benefits
from a defendant who it knows has committed bad acts and later argue that it
should not be held to its bargain because the defendant has committed those
bad acts. Additionally, we note that a sentence at the low end of the guidelines
range would have been presumptively reasonable. See United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006) (“[A] sentence within a properly calculated
Guideline range is presumptively reasonable.”). Thus, unlike in Puckett, there
would be nothing inherently objectionable in Kirkland’s receipt of the benefit
of his plea agreement. Cf. 556 U.S. at 143.
      In this light, we believe that denying Kirkland the benefit of his bargain
would be manifestly unjust and therefore conclude that the Government’s
breach of the plea agreement satisfies the fourth prong of the plain-error test.
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                                     III
      The Government’s breach of its obligations under its plea agreement
with Kirkland satisfies all four prongs of the plain error test and therefore
constitutes reversible plain error. See Molina-Martinez, 136 S. Ct. at 1343.
When we conclude that the Government’s breach of a plea agreement
constitutes reversible error, a defendant can choose one of two remedies: “[1]
specific performance of the plea agreement and resentencing before a different
judge, or [2] withdrawal of the guilty plea.”    Williams, 821 F.3d at 658.
Kirkland requests specific performance of the plea agreement at a
resentencing before a different district court judge. Accordingly, we VACATE
Kirkland’s sentence and REMAND for resentencing before a different judge.




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