                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-2004

USA v. Rivera
Precedential or Non-Precedential: Precedential

Docket No. 02-3067




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"USA v. Rivera" (2004). 2004 Decisions. Paper 744.
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                                                                           PRECEDENTIAL

           UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                         No. 02-3067


                             UNITED STATES OF AMERICA

                                              v.

                                      ISAAC RIVERA,
                                               Appellant




                            SUR PETITION FOR REHEARING


Present:      SCIRICA, Chief Judge, SLOVITER, NYGAARD, ALITO, ROTH,
              McKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH,
              CHERTOFF, and FISHER, Circuit Judges, and OBERDORFER, District
              Judge*


       The petition for rehearing filed by *Appellee, USA, in the above-entitled case

having been submitted to the judges who participated in the decision of this court and to

all the other available circuit judges of the circuit in regular active service, and no judge

who concurred in the decision having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having voted for rehearing by the court




   *
    Hon. Louis F. Oberdorfer, Senior District Judge for the District of Columbia, sitting
by designation, as to panel rehearing only.
en banc, the petition for rehearing is denied.1 Judges Chertoff and Fisher would have

granted rehearing en banc. Judge Chertoff files a separate dissent.

                                            By the Court,


                                            /s/ Dolores K. Sloviter
                                            Circuit Judge

*AMENDED April 16, 2004
Dated:  April 15, 2004
tyw/cc: Clayton A. Sweeney Jr., Esq.
        Norman J. Gross, Esq.
        George S. Leone, Esq.




   1
    A separate Opinion of the Panel Sur Denial of Rehearing is issued regarding the
denial of the petition for rehearing in order to address the issues raised in the dissent.
                  Opinion of the Panel sur Denial of Rehearing en banc

OBERDORFER, District Judge.

       De novo review is appropriate in this case because of our precedents in United

States v. Queensborough, 227 F.3d 149, 156 (3d Cir. 2000), and United States v.

Moschalaidis, 868 F.2d 1357, 1360 (3d Cir. 1989), and because of the principles

articulated in the panel opinion. While our decision in United States v. Thornton, 306

F.3d 1355 (3d Cir. 2002), employed a plain error standard, that opinion never

acknowledged that the precedents Queensborough and Moschalaidis used plenary review,

nor did it explain why it broke with those precedents. This Circuit has long held that if its

cases conflict, the earlier is the controlling authority and the latter is ineffective as

precedents. Gluck v. United States, 771 F.2d 750, 753 (3d Cir. 1985). Further, United

States v. Vonn, 535 U.S. 55, 66 (2002), does not “effectively undercut” our earlier

precedents on the issue of the standard of review for a claim of breach of plea agreement.

Vonn addressed only Rule 11 errors. Because breach of plea agreement is not an issue

addressed by Rule 11, Vonn’s holding does not apply to Rivera’s claim. Perhaps most

significantly for the purposes of our consideration of en banc review, even if we granted

rehearing and overruled our prior precedents, both the applicable standard of review and

the outcome of the case would remain unchanged. As discussed further below, Rivera

was entitled to de novo review on additional grounds independent from the rule applied in

Queensborough and Moschalaidis.



                                                1
       Under Fed. R. Cr. P. 51, “[a] party may preserve a claim of error by informing the

court – when the court ruling or order is made or sought – of the action the party wishes

the court to take, or the party’s objection to the court’s action and the grounds for that

objection.” Rule 51 “relieves a party of the need to renew an objection to an instruction if

the party’s objection has been made clear to the district court.” Moore’s Fed. Prac. 3d §

51.03. Compliance with Rule 51 does not require “surgical precision.” Id. (quoting

Exxon Corp. v. Amoco Oil Co., 875 F.2d 1085, 1090 (4th Cir. 1989)).

       In Rivera’s case, both the United States and the sentencing judge were on notice

from Rivera’s objections to the Presentence Report, filed by him with the court before,

and not ruled upon until, the sentencing hearing, that he viewed the adoption of the

probation officer’s recommended departure from the plea agreement as “repugnant to

[the] plea agreement.” Defendant’s Objections to the Presentence Report dated April 18,

2002 (Appendix at 132(a)). Accordingly, Rivera adequately (albeit not expertly)

preserved his claim. Cf. Government of Virgin Islands v. Joseph, 964 F.2d 1380 (3d Cir.

1992) (defendant preserved his objection to admissibility of shooting victim’s hearsay

statement, even though defendant did not interpose contemporaneous objection, where

defendant’s counsel made written pretrial motion to exclude statement, district court

conducted hearing after start of trial, and district court made definitive ruling with no

suggestion that it would reconsider the issue); United States v. Mejia-Alarcon, 995 F.2d

982 (10th Cir. 1993) (defendant’s motion in limine preserved objection to use of prior



                                              2
food stamp conviction evidence, where defense counsel adequately argued issue of

whether prior conviction was admissible other crimes evidence, motion in limine

presented evidentiary issue akin to question of law, and district court's ruling was

definitive). Although (as noted in footnote 4 of the opinion) the rule from our decisions

in Queensborough and Moschalaidis made it unnecessary for the panel to address the

foregoing question of the alternative ground for de novo review of his claim for breach of

plea agreement, Rivera effectively preserved the right to de novo review on that

alternative ground as well.

CHERTOFF, Circuit Judge, dissenting

       I respectfully dissent from the Court’s denial of the Government’s petition for

rehearing en banc.

       The panel opinion declines to subject Appellant’s claim to the “plain error”

standard of review under Rule 52 of the Federal Rules of Criminal Procedure. That Rule

provides that where, as here, appellant failed to raise a legal challenge in the district

court, we review under the standard set forth in United States v. Olano, 507 U.S. 725

(1993). The panel decision is driven by language in United States v. Queensborough, 227

F.3d 149, 156 (3d Cir. 2000) and in United States v. Moscahlaidis, 868 F.2d 1357, 1360

(3d Cir. 1989).

       I am not convinced that we need to read our earlier decisions to compel that an

alleged breach of a plea agreement is reviewed de novo even if appellant never



                                               3
complained in the district court. Indeed, our decision in United States v. Thornton, 306

F.3d 1355, 1357 (3d Cir. 2002), employed a plain error standard in reviewing a claim that

the district court violated a plea agreement. The distinction between a district court

violation of a plea agreement and a prosecutor’s violation of a plea agreement is too

fragile to support a difference in the standard of review.

       More important, whatever the precedential effect of Queensborough and

Moscahlaidis, I believe they have been substantially undercut by the later decision of the

Supreme Court in United States v. Vonn, 535 U.S. 55 (2002). There, the Supreme Court

held that an error not raised during the course of a guilty plea is reviewed for plain error,

as opposed to the lower harmless error standard. The logic of Vonn is fatal to the

decision here. As in Vonn, de novo review in this context would invite a defendant to

stay silent about an error at the time it could be cured by the district judge, while waiting

“to see if the sentence later struck him as satisfactory.” 535 U.S. at 73.

       Finally, the weight of well-reasoned authority in other circuits continues to mount

on the side of reviewing alleged breaches of plea agreements under the plain error rule.

These cases are most recently canvassed in the decision of In re Sealed Case, 356 F.3d

313 (D.C. Cir. 2004).

       Because I believe that we should not continue to perpetuate an erroneous standard

of review, I would vote to rehear this matter en banc.




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