                                                      NOT PRECEDENTIAL
                         UNITED STATES COURT OF APPEAL
                             FOR THE THIRD CIRCUIT
                                  _____________

                                      No. 09-1933
                                     _____________

                            UNITED STATES OF AMERICA

                                            v.

                                  IRVINE HODGE, JR.,
                                                  Appellant
                                     _____________

                         On Appeal from the District Court of the
                                      Virgin Islands
                              (D.C. No. 3-99-cr-00006-002)
                         District Judge: Hon. Raymond L. Finch
                                    _______________

                                   Argued May 4, 2010

              Before: SMITH, CHAGARES and JORDAN, Circuit Judges.

                                  (Filed: August 5, 2010)
                                    _______________

David R. Fine [ARGUED]
K&L Gates LLP
17 North Second St. - 18 th Fl.
Harrisburg, PA 17101
       Counsel for Appellant

Ronald W. Sharpe
Nelson L. Jones [ARGUED]
Audrey L. Thomas-Francis
United States Attorney’s Office
5500 Veteran’s Drive - #260
St. Thomas, VI 00802
       Counsel for Appellee
                                     _______________

                                OPINION OF THE COURT
                                    _______________

JORDAN, Circuit Judge.

       Irvine Hodge, Jr. and his brother, Devin Hodge, robbed a jewelry store in St.

Thomas and murdered the store’s owner.1 The brothers pled guilty pursuant to identical

plea agreements, and both received life sentences at a joint sentencing hearing. Devin

appealed his life sentence to our court and prevailed on his argument that the government

breached its plea agreement by implicitly recommending a life sentence despite its

promise not to recommend any specific sentence. United States v. Hodge, 412 F.3d 479

(3d Cir. 2005) (hereinafter “Devin Hodge”). Although Irvine’s lawyer failed to file an

appeal, Irvine successfully obtained collateral relief as a result of his counsel’s

ineffectiveness, thereby permitting him to appeal his sentence. Hodge v. United States,

554 F.3d 372 (3d Cir. 2009) (hereinafter “Irvine Hodge”). Like his brother before him,

Irvine now appeals, contending that the government breached its plea agreement with him

by implicitly recommending a life sentence at the sentencing hearing. Because the

government treated the brothers as a unit, including during its presentations at the

sentencing hearing, we cannot fairly untangle what the government said about Irvine from

what it said about his brother. Thus, we reach the same conclusion in Irvine’s appeal as



  1
  Because the brothers share the same last name, we will refer to them by their first
names.

                                              2
we did in Devin’s and will vacate Irvine’s sentence and remand for proceedings

consistent with this opinion.

I.       Background

         A.    Plea Agreement and Sentencing

         In 1998, Irvine, Devin, and an accomplice, Jason Hull, robbed the “Emerald

Lady,” a jewelry store on St. Thomas, and murdered Larry Davis, the store’s owner. The

three men were charged in a third superseding indictment with first degree murder, in

violation of 18 U.S.C. § 924(j)(1); interfering with commerce by robbery, in violation of

18 U.S.C. § 1951; and tampering with a witness by killing, in violation of 18 U.S.C. §

1512(a). In April 2000, pursuant to a package plea deal,2 Irvine and Devin pled guilty to

first-degree murder. Under the brothers’ identical plea agreements, the government

reserved its right to speak at sentencing, but agreed that it would “make no specific

sentencing recommendation other than to request that the sentence be within the guideline

range.” 3 (App. at 16, ¶ 9.) Hull also pled guilty to the charges in the indictment, although

it appears that his plea agreement was not packaged with the Hodge brothers’ agreements.




     2
   “As their name suggests, package deal plea bargains exist where the government
accepts a defendant’s guilty plea on the condition that his co-defendant(s) also plead
guilty.” Devin Hodge, 412 F.3d at 489.
     3
   In a supplemental plea agreement, Irvine agreed to cooperate and the government
agreed that, if the cooperation was adequate, it would file a motion pursuant to U.S.S.G. §
5K1.1. The government never filed a 5K motion, but Irvine does not take any issue on
appeal with the government’s inaction.

                                             3
       On March 6, 2002, the three co-defendants were sentenced at the same proceeding

in the District Court of the Virgin Islands. After sentencing Hull, the Court turned its

attention to hearing from and about the Hodge brothers, beginning with Irvine. During its

presentation, the government stated that Irvine “had every opportunity to be a positive

influence in this community,” that he had “everything going for him,” but that, regardless,

he inexplicably murdered Larry Davis. (App. at 68.) The prosecutor continued, veering

between remarks directed at Irvine and then at both brothers:

       [I]t makes absolutely no sense that this defendant and his brother would join
       in what happened at that jewelry store. But we’re here now. Larry Davis is
       dead. Ms. Rawlins[, a security guard who was shot during the incident,] is
       traumatized for the rest of her life. ... But I don’t think we will ever
       understand what was in the mind of these two young men, Devin and Irvine
       Hodge. ... I’ve come to the realization, there is no explanation. They
       decided to be lawless. They decided to do these evil acts, and now they
       have to face the consequences of those actions.


(Id. at 69.)

       The prosecutor then responded to statements of remorse Irvine made during his

allocution, again mixing comments that specified Irvine with comments about both

brothers:

       [I]t always amazes me that once a person gets convicted and spends some
       time in jail, pending sentencing, two things happen. They usually find
       religion, and they usually find great remorse. ... Whether the remorse is
       genuine or not, I leave that for a higher power to determine. But at some
       point this defendant [Irvine] has to realize that there are grave consequences
       for your actions. And what’s even more amazing is that it wasn’t the first
       time they had robbed the Emerald Lady Jewelry Store ... . So, not only did
       they victimize [the Davises] a first time by robbing them, they returned
       there a second time, and this time it was even more tragic. So, I ask the

                                          4
       Court to fashion a sentence as fair and as just, and that sends a clear
       message: You may go out with the intention of ... committing a robbery,
       but if someone dies while you’re committing that robbery, there are grave
       consequences to your actions.

(Id. at 69-70.) Immediately thereafter, the Court heard a victim impact statement by

Gwendolyn Rawlins, the security guard at the Emerald Lady who was shot during the

robbery. After explaining how that violent act permanently altered her life, she stated that

“I feel to myself that with the fullness of the law, that these guys should pay for what they

have done.” (Id. at 71.)

       Before sentencing Irvine, the Court asked for allocution regarding Devin,

explaining that “[it] would like to ... impose sentence after hearing both allocutions ... .”

(Id.) Obviously concerned that the brothers might be losing their individual identities in

the Court’s eyes, Devin’s counsel expressed his “hope [that,] by [the Court’s] hearing

both allocutions, ... the Court is not fixed on a predisposition to sentence these brothers

equally.” (Id.) The Court responded: “Not necessarily. That’s why I want to hear both of

them.” (Id.)

       Devin’s counsel then presented his sentencing position, focusing on Devin’s

rehabilitation since the incident. Devin personally expressed his remorse and requested,

in light of his rehabilitation, “another chance to be part of society again” because he

“[could] be a productive citizen in this community.” (Id. at 83.) The government

responded by saying, “[o]nce again, we’re faced with an argument that, well, he has

turned his life around.” (Id. at 84.) From there, the prosecutor questioned how “someone


                                               5
that evil, [could] have complete transformation in a four-year period” and whether “it [is]

genuine.” (Id. at 86.) He also asked “does the community at large have to wonder, once

his sentence is completed and he’s released back into the community, whether it’s a

genuine change or not?” (Id.) The government continued:

       We ask the Court to fashion a sentence that is fair, that is just, but that is
       also fair and just to Linda Davis [Larry’s widow], to Larry Davis, to
       Gwendolyn Rawlins and their families. Because Devin Hodge had his
       chance to be a positive influence in the community. Larry Davis was a
       positive influence in this community. He doesn’t get a second chance. His
       family doesn’t get a second chance. Gwendolyn Rawlins’ [sic] life has
       been completely traumatized. She doesn’t have a second chance. She has
       to live with the scars and with the injuries inflicted by the events. Once
       again, Mrs. Rawlins has asked to speak to the Court, but I ask the Court to
       fashion a sentence that is fair and just to the victims in this case.

(Id. at 86-87.) Ms. Rawlins then addressed the Court a second time, again expressing her

“hope that he [Devin] bear[s] the full penalty of the law.” (Id. at 88.)

       Thereafter, the Court addressed both brothers, indicating that it wanted them to

know what Linda Davis had written to the Court. The Court read into the record a letter

from Ms. Davis, in which she said that “[t]he people of St. Thomas need to be outraged

enough to put a stop to terrorism and acknowledge the value of Larry’s life,” and she

paraphrased a familiar quotation, saying, “for evil to triumph, good men need do

nothing.” (Id. at 91.) Speaking directly to the brothers, the Court added, “to the extent

that it has any relevance to you two young men – I don’t know it – but there seems to be

an environment in St. Thomas, in particular, where the community is doing nothing and




                                              6
allowing evil to triumph.” (Id.) The Court then sentenced both brothers, simultaneously,

to life sentences:

       [H]aving taken into consideration everything that’s been said today,
       everything I know about the case and the terms of the plea agreement, I
       have no alternative in my mind, and in good conscience, but to sentence
       each of you to life in prison.


(Id. at 92.)

       B.      Devin’s Appeal

       Devin timely appealed from the judgment of sentence, arguing that the government

breached its plea agreement by implicitly recommending a life sentence, despite having

agreed not to recommend a specific sentence.4 Devin Hodge, 412 F.3d at 484. We

agreed. First we concluded “that a reasonable person would have understood the plain

language of Devin’s plea agreement to mean that the government would not make any

specific sentencing recommendation.” Id. at 486-87. Next, we held that, based on the

prosecutor’s comments at the sentencing hearing:

       The government broke its promise. The prosecutor asked “whether the
       community at large [had] to wonder, once [Devin’s] sentence is completed
       and he’s released back into the community, whether [he made] a genuine
       change or not.” The plain implication of that statement was that Devin
       should not be released back into the community. The prosecutor added that
       Devin “had his chance to be a positive influence in the community.” The
       plain implication of that statement was that Devin should not be given
       another chance to be a positive influence in the community. The prosecutor


  4
   Devin also argued that his plea colloquy was deficient because the Court was unaware
that his plea was linked to Irvine’s plea, however, we rejected that argument. Devin
Hodge, 412 F.3d at 480.

                                        7
       stated that the murder victim did not get a second chance to be a positive
       influence in the community and urged the Court to “fashion a sentence that
       is fair and just to the victims in this case.” The plain implication of that
       statement was that a fair and just sentence for Devin would deny him a
       second chance. In short, “[o]nly a stubbornly literal mind would refuse to
       regard the Government’s commentary as communicating a [specific
       recommendation] on sentencing.” By recommending a “life sentence in all
       but name,” the government breached its agreement with Devin.


Id. at 487 (alterations in original) (footnote and citations omitted). In so reasoning, we

pointed out that Ms. Rawlins’s request that Devin “bear the full penalty of the law” only

emphasized the prosecutor’s effort to equate a sentence that is fair to the victims with a

life sentence. Id. at 487 n.9. Accordingly, we vacated Devin’s sentence and remanded

“for the District Court to determine whether to grant specific performance or allow

withdrawal of the guilty plea.” 5 Id. at 487.

       C.     Irvine’s § 2255 Petition

       Unlike Devin, Irvine failed to timely appeal his sentence. Irvine moved for

collateral relief pursuant to 28 U.S.C. § 2255, claiming that the government breached its

plea agreement with him and that his failure to appeal that issue was a result of his

counsel’s ineffectiveness. Irvine Hodge, 554 F.3d at 374, 379. The District Court denied

Irvine’s motion and Irvine appealed that denial. Id. at 376-77.




  5
    On remand, Devin withdrew his plea but again pled guilty on November 22, 2006,
after which he was sentenced to 450 months imprisonment. United States v. Hodge, 276
F. App’x 120, 121 (3d Cir. 2008).

                                                8
       We held that counsel was ineffective in failing to appeal Irvine’s sentence. Id. at

381. We noted that counsel was clearly ineffective if Irvine had instructed him to appeal

and counsel failed to do so. Id. at 380. However, we concluded that, regardless of

whether Irvine had so instructed his counsel, Irvine had still established ineffective

assistance because, “any rational defendant in his position would want to appeal.” Id.

Indeed, citing to Devin Hodge, we noted that “[t]he plausibility of one of [Irvine’s]

arguments for vacatur of his sentence is demonstrated by the fact that Devin, who

received an identical plea agreement in a joint plea arrangement, and then, at a joint

sentencing hearing, received an identical sentence, successfully argued that the

government had breached the plea agreement by implicitly requesting a life sentence.”

Id. at 380 n.11; see also id. at 381 (explaining that “[Irvine] had nonfrivolous arguments

that the government had breached its plea agreement with him” in light of “the parallels

between his case and Devin’s”). Accordingly, we “vacate[d] [Irvine’s] sentence and

remand[ed] the case for the re-entry of that sentence so that he [would have] the

opportunity to file a direct appeal.” Id. at 382 (footnote omitted). On remand, the District

Court, in accordance with our instructions, reimposed the same life sentence on Irvine.

This timely appeal followed.




                                              9
II.    Discussion 6

       Irvine asserts that he is entitled to vacatur of his sentence and remand because the

government breached its plea agreement with him by implicitly recommending that he be

given a life sentence. “[W]hether the government violated the terms of a plea agreement

is a question of law subject to plenary review that may be raised on direct appeal despite

the defendant’s failure to raise the issue at sentencing.” United States v. Queensborough,

227 F.3d 149, 156 (3d Cir. 2000). “We have made clear that the government has an

obligation to adhere strictly to the terms of the bargain it strikes with defendants.” Id.

(quotations omitted). “In determining whether the government has violated the terms of

the plea agreement, we ask ‘whether the government’s conduct is consistent with the

parties’ reasonable understanding of the agreement.’” Id. (quoting United States v.

Roman, 121 F.3d 136, 142 (3d Cir. 1997)).

       As in Devin’s case, in which we construed the identical plea agreement, “a

reasonable person would have understood the plain language of [the defendant’s] plea

agreement to mean that the government would not make any specific sentencing


  6
    The District Court possessed jurisdiction over this case pursuant to 48 U.S.C. § 1612.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Irvine filed his appeal on April 1,
2009, even though the District Court did not enter its amended judgment on the docket
until April 7, 2009. Although Irvine’s appeal was premature, we have jurisdiction
because the appeal ripened upon the District Court’s entry of judgment. See United States
v. Console, 13 F.3d 641, 649 n.3 (3d Cir. 1993) (“[Defendant] appealed on the day of the
sentencing but before the judgment was entered. We nevertheless have jurisdiction.”);
see also F ED. R. A PP. P. 4(b)(2) (“A notice of appeal filed after the court announces a
decision, sentence, or order – but before the entry of the judgment or order – is treated as
filed on the date of and after the entry.”).

                                             10
recommendation.” Devin Hodge, 412 F.3d at 486-87. Irvine argues that the government

breached that agreement by implicitly requesting a life sentence through statements it

made at the joint sentencing hearing. The government responds that any statements it

made at sentencing concerning Devin did not “automatically extend[]” to Irvine because

the two were addressed in separate presentations. (Appellee’s Ans. Br. at 13.)

       This would certainly be a simpler case if the government had in fact dealt with the

brothers independently, but it did not. Instead, it treated the Hodge brothers as being

effectively indistinguishable. From the outset, the prosecution approached the brothers as

a single criminal unit. The government sought a package plea deal, tying the brothers’

cases together, and entered into identical plea agreements with both of them. More

importantly for our purposes, the prosecutor treated the brothers in a virtually identical

manner at sentencing.

       During the government’s comments about Irvine, the prosecutor focused on the

brothers as a twosome, repeatedly referring to the “evil” acts that “they” had committed.

Specifically, the government stated that “[i]t makes absolutely no sense that this

defendant [Irvine] and his brother would join in what happened at that jewelry store,” “I

don’t think we will ever understand what was in the mind of these two young men, Devin

and Irvine Hodge,” “[t]hey decided to be lawless,” and “[t]hey decided to do these evil

acts, and now they have to face the consequences of those actions.” (App. at 68-69

(emphasis added).) The government also noted that the brothers’ joint criminal activity

was not the first time that “they” had robbed the Emerald Lady, explaining that the

                                             11
charged theft was the second time “they” had robbed the store and that “this time [the

result] was even more tragic” than the first. (Id. at 70.) According to the prosecutor, this

repeated lawless conduct necessitated a sentence that reflected the “grave consequences”

of those actions. (Id.) By repeatedly referring to the brothers jointly, the prosecutor

strongly implied that the two should be treated identically for sentencing purposes. By

frequent repetition of the word “they,” the prosecutor signaled to the Court that the two

brothers were equally culpable and that statements made as to one brother were equally

applicable to the other.

       After hearing the government’s presentation as to Irvine, the District Court decided

to hear about Devin before sentencing either of the brothers. The prosecutor began his

comments about Devin by stating “once again, we’re faced with an argument that ... he

has turned his life around,” (Id. at 84,) thus tying the government’s perspective on Devin

back to what it had said about Irvine. Furthermore, although the government identified

Devin by name, the overall gist of its comments about both brothers was that the Court

should send a message that the brothers had exhausted their opportunities to be positive

members of the community. (See id. at 69 (describing both defendants’ acts as “evil”); id.

at 86 (describing Devin as “evil”).) While speaking about Devin, the prosecutor again

referred to both of the brothers’ acts, using the same language and themes that he had just

used in his presentation regarding Irvine, namely, that the brothers should be given a

sentence that reflected the severe harm done to the victims and the demand for

retribution.

                                             12
       The government’s treatment of the brothers as a unit evidently had its intended

effect, because instead of sentencing them separately, the Court heard the defense

allocutions and government rebuttals as to both brothers prior to sentencing either, and

then the Court took “into consideration everything that’s been said” when simultaneously

sentencing them both to life imprisonment. (Id. at 92.)

       Because the prosecutor treated the brothers as being the same for sentencing

purposes, we cannot un-mix the sentencing comments the government made about the

two.7 See United States v. Hall, 515 F.3d 186, 200-01 (3d Cir. 2008) (acknowledging

that, where husband and wife were both charged with identical criminal offense arising

from the same conduct, prosecutor’s statements as to wife necessarily referred to husband

as well). Accordingly, we have considered the government’s presentations as to both

brothers in determining whether it breached the plea agreement with Irvine.

       That being so, our decision on the question of breach has been informed by the

result in Devin Hodge.8 Again, the theme of the government’s sentencing comments was


  7
    We emphasize that we are not suggesting that the government may not at the same
time address a district court with sentencing positions as to multiple defendants in a case.
There may be good reasons for the government to discuss several defendants as a group.
Furthermore, if a prosecutor, at sentencing, distinguishes among defendants who are
guilty of the same conduct, he or she will not be said to have breached a plea agreement
with one defendant by virtue of statements directed to another defendant, even if those
statements could apply to the first defendant. However, when a prosecutor treats
defendants as in essence indistinguishable, the problems affecting the sentencing of one
defendant may well affect the sentencing of another, as is the case here.
  8
   Irvine also argues that Devin Hodge mandates the result here because Devin Hodge
constitutes the law of the case as a prior appeal of a co-defendant who was sentenced at

                                             13
that the Hodge brothers are evil individuals who had exhausted their opportunities to be

positive influences in the community. (See App. at 68 (“[Irvine] had every opportunity to

be a positive influence in this community”); id. at 86 (“Devin Hodge had his chance to be

a positive influence in the community. ”).) As was the case with Devin, “[t]he plain

implication ... was that [Irvine] should not be given another chance to be a positive

influence in the community,” in other words, that he should be incarcerated for life.

Devin Hodge, 412 F.3d at 487. The government focused on the brothers’ “evil” acts and

asked the Court to craft a “fair” and “just” sentence that reflects the impact of those

actions on the victims, whose lives were either taken from them or changed forever. (See

App. at 69 (“They decided to do these evil acts, and now they have to face the

consequences of those actions.”); id. at 70 (asking, after noting the “tragic” result of the

brothers crimes, that the Court “fashion a sentence as fair and as just” and which sends a

message that there are “grave consequences to your actions” if someone dies while you

commit a robbery); id. at 87 (asking the Court, after noting that Larry Davis “doesn’t get a



the same proceeding. Our circuit has recognized that, for the law of the case doctrine to
apply, the same parties must have been involved in the earlier decision. See In re W.R.
Grace & Co., 591 F.3d 164, 174 (3d Cir. 2009) (refusing to consider prior opinion as law
of the case because that opinion “did not involve the same parties and issues, as is
required for application of the law of the case doctrine” (footnote omitted)); see also
United States v. Dexter, 165 F.3d 1120, 1124 (7th Cir. 1999) (“We acknowledge that
because [defendant] was not a party to the merits decision in the original appeal [by his
co-defendant] he is not precluded from raising the same arguments anew that were raised
by [his co-defendant].”). When two defendants appeal separately and their cases are not
consolidated, they cannot both be said to be parties to each other’s appeals. Accordingly,
we reject Irvine’s argument that the law of the case doctrine applies here.

                                             14
second chance” and that Gwendolyn Rawlins’s “life has been completely traumatized” to

“fashion a sentence that is fair and just to the victims in this case.”).) The totality of the

comments implicitly requested a life sentence for both brothers, in violation of the plea

agreement.9 See Devin Hodge, 412 F.3d at 487 (concluding that “‘[o]nly a stubbornly

literal mind would refuse to regard the Government’s commentary as communicating a

[specific recommendation] on sentencing’” (quoting United States v. Crusco, 536 F.2d

21, 26 (3d Cir. 1976) (alteration in original)); see also id. (“By recommending a life

sentence in all but name, the government breached its agreement with Devin.” (quotations

and internal citation omitted)).

III.   Conclusion

       Because, at sentencing, the government consistently spoke of Irvine and Devin as

indistinguishable, we cannot accept its contention that the brothers should be treated

differently on the question of whether the government breached their identical plea

agreements. Accordingly, we will vacate Irvine’s sentence and remand for the District

Court to determine whether to grant specific performance or allow withdrawal of his

guilty plea.




  9
    We are focused here solely on what the prosecutor was permitted by the plea
agreement to say. We express no opinion regarding the propriety of the sentence that
Irvine actually received. In remedying a breach of the plea agreement, we imply nothing
about what Irvine’s sentence ought to be. The District Court is of course free on remand
to consider that the culpability and hence the sentence to be borne by each brother may be
different.

                                              15
