                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                        Nos. 15-3702, 15-3703, 15-3704, 15-3705
                                   ______________

                            UNITED STATES OF AMERICA,

                                             v.

                 ROGER ATWOOD, I, Appellant in 15-3702, 15-3703
                 ROGER ATWOOD, II, Appellant in 15-3704, 15-3705

                                     ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                       (D.C. Nos. 1-12-cr-00055-001, -002;
                       D.C. Nos. 1-13-cr-00260-001, -002)
                    District Judge: Hon. Christopher C. Conner
                                 ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    October 4, 2016
                                   ______________

            Before: SHWARTZ, GREENBERG, and ROTH, Circuit Judges.
                          (Filed: December 13, 2016)

                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, Circuit Judge.



       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Appellants Rodger Atwood I and Rodger Atwood II1 appeal their sentences for

various drug convictions, arguing that the District Court committed error and the

Government breached its plea agreements with them. Because the sentences were

properly calculated and there was no breach, we will affirm.

                                               I

       The Atwoods, a father-son team, ran a large marijuana operation in Pennsylvania.

In early February 2012, federal agents executed search warrants at their homes and found

marijuana, drug paraphernalia, firearms, ammunition, and cash.

       Atwood I was charged with state drug offenses and released on bail the same day.

Days later, a federal grand jury in the Middle District of Pennsylvania returned an

indictment (the “First Indictment”) charging the Atwoods with conspiracy to distribute

marijuana, distribution of marijuana, and possession of a firearm in connection with drug

trafficking. Both Atwoods fled to Colorado. They were arrested about three months later

and returned to Pennsylvania to await trial.

       Several months after they were arrested, law enforcement discovered that the

Atwoods had been engaging in undisclosed “side deals,” attempting to purchase drugs to

distribute for their own gain. In one of these deals, the Atwoods ended up negotiating

with a confidential informant. This led to a second indictment in November 2013 for

conspiracy to distribute and possess with intent to distribute cocaine (the “Second

Indictment”).



       1
           We refer to the father as Atwood I and the son as Atwood II.
                                               2
       In October 2013, the Atwoods pleaded guilty to a superseding information

stemming from the marijuana charges in the First Indictment. The plea agreements

resolving the First Indictment contained language concerning sentencing reductions for

acceptance of responsibility under U.S.S.G. § 3E1.1, and departures under U.S.S.G.

§ 5K1.1. In April 2015, the Atwoods pleaded guilty, pursuant to other plea agreements,

to a superseding information related to the cocaine charges in the Second Indictment.

       At their joint sentencing, the Atwoods challenged a number of recommendations

contained in the Pre-Sentence Report (“PSR”). Relevant to this appeal, Atwood I

challenged the enhancement for obstruction of justice under § 3C1.1, and both Atwoods

asserted that they were entitled to a reduction for acceptance of responsibility under

§ 3E1.1. In addition, both Atwoods complained about the § 5K1.1 departure the

Government recommended.

       The District Court overruled Atwood I’s objection to the obstruction enhancement,

finding that the enhancement was warranted because he had fled immediately after his

arrest on state charges and failed to appear for a judicial proceeding in the related state

case, which delayed the federal prosecution.

       The District Court also denied the Atwoods’ request for a reduction for acceptance

of responsibility.2 It noted that the Atwoods continued to engage in extensive criminal

activity after first being indicted, and that they denied significant aspects of the conduct


       2
         While the Government agreed that the Atwoods had accepted responsibility with
regard to the Second Indictment, it argued that the Atwoods’ flight and continued
criminal conduct following the First Indictment demonstrated that they had not accepted
responsibility for their actions related to that indictment.
                                               3
that formed the basis for the conviction under the Second Indictment. The District Court

also observed that, because Atwood I had obstructed justice, he was not entitled to an

exception from the rule that a defendant who obstructs justice is typically denied a

§ 3E1.1 reduction.

       The District Court did, however, grant the Government’s § 5K1.1 departure

motion. The District Court concluded that a three-level reduction, rather than the one-

level departure the Government recommended, balanced the Atwoods’ efforts against

their continued criminal activity.

       After noting that Atwood I was a career offender under U.S.S.G. § 4B1.1, the

District Court sentenced Atwood I to 151 months’ imprisonment on each information, to

be served concurrently, and sentenced Atwood II to 200 months’ imprisonment—100

months on each information, to be served consecutively. The Atwoods appeal.

                                            II3

       The Atwoods argue that the District Court erred by failing to grant them

reductions for acceptance of responsibility, and the Government breached the plea

agreements by failing to advocate for the acceptance of responsibility reduction and not

requesting a greater departure under § 5K1.1. We will address each argument in turn.

                                             A

       The Atwoods first argue that the District Court erred by failing to grant a sentence

reduction for acceptance of responsibility pursuant to § 3E1.1.4 Under § 3E1.1, a


       3
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
                                             4
defendant who adequately accepts responsibility for his criminal conduct is entitled to a

reduction in his offense level. See U.S.S.G. § 3E1.1. “Because the sentencing judge ‘is

in a unique position to evaluate a defendant’s acceptance of responsibility,’ we give great

deference on review to a sentencing judge’s decision not to apply the . . . reduction for

acceptance of responsibility to a particular defendant.” United States v. Barr, 963 F.2d

641, 657 (3d Cir. 1992) (quoting U.S.S.G. § 3E1.1 cmt. n. 5).

       The District Court relied on several grounds for denying the reduction for

acceptance of responsibility, and each is independently sufficient. First, the District

Court properly considered the Atwoods’ conduct prior to their guilty pleas in October

2013. We have not limited consideration of relevant conduct for purposes of assessing

acceptance of responsibility to a certain time period or category of conduct. Rather, any

relevant conduct that occurs from the time the defendant is on notice of the Government’s

interest in his criminal activities may be considered in determining whether he has truly

manifested an acceptance of responsibility. United States v. Ceccarani, 98 F.3d 126, 128

(3d Cir. 1996) (finding a denial of acceptance of responsibility proper where conduct

took place pre-plea but after the defendant was indicted). Here, the Government notified

the Atwoods of its interest in their conduct at the time the search warrants were executed,

and therefore their behavior thereafter may be considered.

       4
         A district court’s interpretation of the sentencing guidelines is subject to de novo
review, but a factual determination as to whether a defendant is entitled to a reduction for
acceptance of responsibility, for example, is reviewed for clear error. United States v.
Ceccarani, 98 F.3d 126, 129 (3d Cir. 1996). A defendant has the burden to demonstrate
by a preponderance of the evidence that he is entitled to the reduction for acceptance of
responsibility. United States v. Harris, 751 F.3d 123, 126 (3d Cir. 2014) (citing United
States v. Boone, 279 F.3d 163, 193 (3d Cir. 2002)).
                                              5
       Such behavior includes Atwood I’s flight, and both Atwoods’ continued criminal

conduct from the time they were first indicted in February 2012 until after their first

guilty plea in October 2013. The commentary to § 3E1.1 states that a court may take into

account whether a defendant voluntarily withdraws from criminal conduct or

associations. See U.S.S.G. § 3E1.1 cmt. n.1. Given this rule, we cannot say the District

Court committed clear error in concluding that the Atwoods’ entitlement to a reduction

for acceptance of responsibility was “outweighed by” their failure to withdraw from

“continued criminal activity.” Ceccarani, 98 F.3d at 129-30 (citation omitted).

       Nor did the District Court clearly err in denying the Atwoods the acceptance of

responsibility reduction based on their denial of certain relevant conduct underlying their

convictions. Their failure to acknowledge such conduct is sufficient to deny them a

reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1 cmt. n.1(A) (noting that

among factors relevant to the acceptance of responsibility determination is “truthfully

admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or

not falsely denying any additional relevant conduct for which the defendant is

accountable”). Thus, we will affirm the District Court’s denial of acceptance of

responsibility.

                                             B

       The Atwoods next assert that the Government breached provisions of the plea

agreements arising out of the First Indictment. The Atwoods contend that the

Government breached terms regarding acceptance of responsibility and downward

departures by failing to advocate for a reduction for acceptance of responsibility and

                                             6
recommending only a one-level downward departure under § 5K1.1.5 These arguments

lack merit.

       In determining whether a plea agreement has been breached, we apply contract

principles and look at whether the Government’s conduct was inconsistent with what was

reasonably understood by the defendant when entering the guilty plea.6 United States v.

Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998). Thus, we must examine whether the

claim of breach is one where “the defendant’s expectations as to his sentence are

predicated on promises [made] by the Government or statements from the court,” or if it

is based on “disappointed but unfounded expectations.” United States v. Badaracco, 954

F.2d 928, 939 (3d Cir. 1992) (citation omitted).

                                              1

       We first address the Atwoods’ argument that the Government breached the

agreements by only recommending a reduction for acceptance of responsibility on the

Second Indictment, and declining to do so for the First Indictment. They assert that the

Government was aware of the conduct underlying the Second Indictment when it entered

the first plea agreements, and despite its promise to support the reduction, it never

intended to do so and thus acted in bad faith.




       5
         “Whether the government’s conduct violates the terms of the plea agreement is a
question of law” subject to plenary review. United States v. Moscahlaidis, 868 F.2d
1357, 1360 (3d Cir. 1989).
       6
         We require the Government to generally “adhere strictly to the bargain it strikes
with defendants” in entering a plea agreement. United States v. Hodge, 412 F.3d 479,
485 (3d Cir. 2005) (citation omitted); Moscahlaidis, 868 F.2d at 1361.
                                              7
       The agreements’ acceptance of responsibility provisions provide for the

Government’s support for an acceptance of responsibility reduction if the Atwoods

adequately demonstrate that they have, in fact, accepted responsibility. The clause has a

condition precedent, namely that the defendant show he has accepted responsibility. If

the condition is not satisfied, the agreements do not require the Government to support a

reduction. Here, the Atwoods did not fulfill the condition precedent as demonstrated by,

among other things, their continual flouting of the law. Nolan-Cooper, 155 F.3d at 236

(contract principles, rather than a “rigidly literal” approach is required in interpreting plea

agreements). Because the Atwoods engaged in criminal conduct after entering their

guilty pleas that is inconsistent with acceptance of responsibility, they failed to satisfy the

condition needed to obtain support for a § 3E1.1 reduction.7 The Government therefore

neither acted in bad faith in entering the agreements nor breached them by opposing the

reduction.

                                               2

       The Atwoods’ argument that the Government breached the plea agreements

arising out of the First Indictment by only recommending a one-level departure under

§ 5K1.1 also fails. The Atwoods essentially argue that the Government’s decision to

advocate only a one-level departure constitutes bad faith.


       7
         As explained above, the District Court had an entirely separate and sufficient
basis for declining to grant an acceptance of responsibility reduction outside of the
Government’s alleged “bad faith” actions, namely the Atwoods’ criminal conduct prior to
their plea, and the ongoing denial of significant relevant conduct. Thus, even if the
Government supported an acceptance reduction, its advocacy would not likely have
changed the outcome.
                                               8
       The agreements here mandate that the Government will seek a departure if the

Government believed the Atwoods provided substantial assistance and fully comply with

their plea agreements. Additionally, the Government explicitly retained the discretion

concerning the amount of departure it would seek. Thus, the agreements contained no

language giving the Atwoods a basis to expect a specific departure recommendation from

the Government. See United States v. Medford, 194 F.3d 419, 423 (3d Cir. 1999) (“[W]e

find no basis for the defendants’ 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.” (internal citation omitted)); see also United States v. Erwin, 765 F.3d 219,

227 (3d Cir. 2014) (finding no due process violation “[b]ecause the record is devoid of

any indication that the Government promised it would specifically request a five-level

downward departure”), cert. denied, 136 S. Ct. 400 (2015). The Government here

complied with its obligations under the agreements by moving for a downward departure,

and we cannot say that its one-level recommendation is outside the “range of

expectations reasonably understood” by the Atwoods when they entered their plea.

United States v. Larkin, 629 F.3d 177, 186, 192 (3d Cir. 2010) (using contractual

approach to analyze plea language and finding that the Government did not breach the

plea by arguing certain enhancements to be applicable). Therefore, the Government did

not breach the agreements.




                                             9
       Furthermore, there is no basis to believe the Government acted in bad faith in

making its one-level recommendation to the District Court.8 Section 5K1.1 requires that

the District Court consider several relevant factors in exercising its discretion to depart

downward, including the truthfulness and completeness of the information provided, and

the nature and extent of assistance given. U.S.S.G. § 5K1.1(a). Thus, the District Court

was permitted to temper its § 5K1.1 analysis with a recognition of the Atwoods’

extensive criminal behavior. United States v. Torres, 251 F.3d 138, 148 (3d Cir. 2001).

It therefore follows that the Government’s reliance on those same factors in fashioning its

recommendation would not constitute bad faith.

       Because the Government fully complied with its obligations pursuant to the plea

agreements and did not act in bad faith, there is no basis to find a breach of the plea

agreements or disturb the District Court’s sentences.

                                             III

       For the foregoing reasons, we will affirm the sentences imposed by the District

Court.9




       8
          Because the Government abided by the terms of the plea agreements, a breach
will generally be found only in cases of bad faith or an unconstitutional motive. See
United States v. Huang, 178 F.3d 184, 189 (3d Cir. 1999) (because the Government had
discretion to decline to make a departure motion, its decision “is reviewable only for bad
faith or an unconstitutional motive”). Neither are present here.
        9
          Atwood I also challenges the District Court’s application of a sentencing
enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. However, we need
not address this argument, because Atwood I is a career offender under U.S.S.G. § 4B1.1,
and such an enhancement would have no impact on his sentence and any error associated
with this issue would be harmless.
                                             10
