
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-2071                                    UNITED STATES,                                      Appellee,                                          v.                                   CRAIG J. CLARK,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                      ____________________                      and John R. Gibson,* Senior Circuit Judge.                                           ____________________                                 ____________________            Kevin E. Buchholz with  whom McDonough & Lindh,  P.A. was on brief            _________________            ________________________        for appellant.            Peter E. Papps,  First Assistant United States Attorney, with whom            ______________        Paul M. Gagnon, United States Attorney, was on brief for appellee.        ______________                                _____________________                                     May 18, 1995                                _____________________        _____________________        *Of the Eighth Circuit, sitting by designation.                      STAHL, Circuit Judge.  Defendant-appellant Craig J.                      STAHL, Circuit Judge.                             _____________            Clark appeals from his sentence, claiming that the government            breached  its plea agreement  with him.   Agreeing, we remand            for resentencing.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      On  June  1,  1994,   Clark  waived  his  right  to            indictment  and pleaded  guilty  to  a two-count  information            stemming  from  a  kidnapping.    Count  I charged  him  with            conspiracy to interfere with commerce by threats or violence,            in  violation of 18 U.S.C.    1951, and  Count II charged him            with interference with commerce  by threats or violence, also            in violation of 18 U.S.C.   1951.  The written plea agreement            contained the following stipulation:                        The  Government agrees  that it  will not                      oppose a three (3) level reduction in the                      defendant's Adjusted  Offense Level under                      the Sentencing Guidelines, based upon the                      defendant's   prompt   recognition    and                      affirmative   acceptance    of   personal                      responsibility for the offense.                      After accepting  Clark's guilty plea,  the district            court ordered  a presentence  investigation and report  to be            issued   by   the   probation  office.      The   Presentence            Investigation  Report indicated  that during  the presentence            interviews  of Clark's  co-defendants, the  probation officer            learned that, prior to the arraignment and the change-of-plea            proceedings, Clark  had attempted to  induce two  of his  co-            defendants  to lie to the court and state that the kidnapping                                         -3-                                          3            victim had been involved in the extortion scheme.  Because of            this activity, the probation officer concluded that Clark had            attempted  to obstruct  justice  and recommended  a two-level            increase in his Adjusted Offense Level pursuant to U.S.S.G.              3C1.1.   Defense counsel objected to  the probation officer's            conclusions.                      Prior to Clark's sentencing hearing, the government            submitted  to  the court  a  sentencing  memorandum outlining            proposed  guideline  adjustments  to  be taken  in  light  of            Clark's  alleged  obstruction  of  justice.    The memorandum            contained a  two-page  discussion  about  whether  Clark  was            entitled   to  an   acceptance-of-responsibility  adjustment.            Clark  objected  to the  government's  sentencing memorandum,            contending  that it  breached  the plea  agreement.   Defense            counsel filed  a motion to withdraw  Clark's plea, explaining            to  the  court that  when  the  government  breaches  a  plea            agreement, the  court may either  compel specific performance            on  the plea agreement or allow the defendant to withdraw his            plea.   The court denied Clark's motion to withdraw his plea,            stating first that  the government had not breached  the plea            agreement, second that it would not be influenced by what the            government recommended, and third  that it would not consider            the acceptance-of-responsibility portion of  the government's            sentencing  memorandum.     After  denying   the  three-level            downward  adjustment  for acceptance  of  responsibility, the                                         -4-                                          4            court imposed a  two-level upward adjustment for  obstruction            of justice and sentenced Clark to 188 months.                                           II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Standard of Review            ______________________                      Clark  and  the  government   disagree  as  to  the            appropriate  standard  of  review, Clark  claiming  that  our            review is de novo and the government, despite citing cases to                      __ ____            the contrary in other parts of its brief, flatly stating that            it is for clear  error.  As we have  previously acknowledged,            see  United States v.  Gonzalez-Perdomo, 980 F.2d  13, 16 n.2            ___  _____________     ________________            (1st Cir. 1992), in some cases we have stated that our review            is de  novo, while  in other  cases we have  stated that  our               __  ____            review is  for clear  error.   Compare id.  at 16  (de novo);                                           _______ ___          __ ____            Kingsley  v. United States, 968 F.2d 109, 114 (1st Cir. 1992)            ________     _____________            (de  novo); United States v.  Atwood, 963 F.2d  476, 478 (1st             __  ____   _____________     ______            Cir.  1992) (de novo); United States v. Canada, 960 F.2d 263,                         __ ____   _____________    ______            269 (1st Cir. 1992)  (de novo) with United States  v. Tilley,                                  __ ____  ____ _____________     ______            964  F.2d 66, 71 (1st Cir. 1992) (clear error); United States                                                            _____________            v.  Kurkculer, 918 F.2d 295,  298 n.5 (1st  Cir. 1990) (clear                _________            error); Panzardi-Alvarez v. United  States, 879 F.2d 975, 987                    ________________    ______________            (1st Cir. 1989)  (clear error), cert.  denied, 493 U.S.  1082                                            _____  ______            (1990); United  States v.  Giorgi, 840  F.2d 1022,  1028 (1st                    ______________     ______            Cir. 1988) (clear error); United States v.  Gonzalez-Sanchez,                                      _____________     ________________            825 F.2d 572, 578 (1st Cir.) (clear error), cert. denied, 484                                                        _____ ______                                         -5-                                          5            U.S. 989 (1987); United States v. Khoury, 755 F.2d 1071, 1073                             _____________    ______            (1st Cir. 1985) (clear  error).  We take this  opportunity to            clarify the appropriate standard of review and to explain why            the two different standards stated in many of these cases are            not in conflict.                      Cases involving plea agreements  allegedly breached            by  the  government  present  two  separate  issues  for  our            consideration, one  factual, the  other legal.   First, there            are  the factual questions of what the terms of the agreement            are  and  what  the government's  conduct  was.   See,  e.g.,                                                              ___   ____            Giorgi,  840   F.2d  at   1028-29   (looking  to   reasonable            ______            expectations of parties to  determine whether ambiguous  plea            agreement  foreclosing prosecution  for  "any  criminal  acts            related  to  thefts  or  hijackings  of  vans"  barred  later            prosecution for arson  or mail fraud) (emphasis  eliminated);            accord Bemis v.  United States,  30 F.3d 220,  223 (1st  Cir.            ______ _____     _____________            1994) (remanding  to district  court to make  factual finding            whether  government promised  as  part of  plea agreement  to            secure  defendant's entry  into witness  protection program).            If  disputed, these factual  questions are to  be resolved by            the district court,  and we will review  the district court's            determinations only for clear error.  See Giorgi, 840 F.2d at                                                  ___ ______            1028.  Second,  there is  the legal question  of whether  the            government's conduct breached the plea agreement.  See, e.g.,                                                               ___  ____            Atwood,  963  F.2d at  479  (government did  not  breach plea            ______                                         -6-                                          6            agreement  requiring it  to  offer its  views on  defendant's            cooperation at defendant's request  when defendant did not so            request).     Because   whether   the  government's   conduct            constituted  a breach  is a  question of  law, our  review is            plenary.  Id. at 478.                      ___                      Here, we are not faced with disputed facts.   Thus,            we  must determine  only the  legal question  of  whether the            government's undisputed conduct breached the  plea agreement,            which we review de novo.                            __ ____            B.  Legal Principles            ____________________                      In Santobello v. New York, 404 U.S. 257 (1971), the                         __________    ________            Supreme  Court  declared  that  "when a  plea  rests  in  any            significant  degree   on  a  promise  or   agreement  of  the            prosecutor,  so  that it  can  be  said  to  be part  of  the            inducement or consideration, such promise must be fulfilled."            Id.  at 262.  Because  plea bargaining requires defendants to            ___            waive fundamental constitutional rights, we  hold prosecutors            engaging in plea bargaining to "the most meticulous standards            of both promise and performance."  Correale v. United States,                                               ________    _____________            479  F.2d  944,  947  (1st  Cir.  1973).   As  we  stated  in            Kurkculer, "[t]he  government must  keep its promises  or the            _________            defendant  must be released from  the bargain."   918 F.2d at            297.                      We  are  guided  in  our  interpretation  of   plea            agreements  by  general  principles  of contract  law.    See                                                                      ___                                         -7-                                          7            Atwood, 963 F.2d  at 479; Giorgi,  840 F.2d at  1025.  As  we            ______                    ______            explained in Gonzalez-Sanchez,                         ________________                      When a defendant has entered into a  plea                      agreement with the government,  the court                      must  ensure that  he  receives  what  is                      reasonably due him  under the  agreement.                      Contractual  principles apply  insofar as                      they are relevant in determining what the                      government "owes" the  defendant.  If the                      defendant  lives up  to  his end  of  the                      bargain, the government  is bound to  its                      promises.            825  F.2d at 578 (footnotes omitted).  See also United States                                                   ___ ____ _____________            v.  Baldacchino, 762 F.2d 170, 179 (1st Cir. 1985) ("Though a                ___________            matter of  criminal jurisprudence, plea bargains  are subject            to contract law principles  insofar as their application will            insure the defendant what is reasonably due him.").            C.  Did the Government Breach?            ______________________________                      We  think  that the  government  breached its  plea            agreement in this  case.   As part of  the consideration  for            defendant's guilty plea, the  government agreed not to oppose            a  three-level  reduction for  acceptance  of responsibility.            Nonetheless,  the  government  effectively  opposed   such  a            reduction with its sentencing memorandum, in which it stated:                      While  the  government  is  cognizant  of                      th[e] fact that it agreed not to oppose a                      three   level   downward  departure   for                      acceptance  [of  responsibility]  in  the                      plea  agreement, it  must be  stated that                      the  Government  was   unaware  of   this                      information indicative  of obstruction at                      the  time  of   the  plea   negotiations.                      Although the government can not now close                      its  eyes  to  the   defendant's  blatant                      attempts  to  obstruct justice,  it would                                         -8-                                          8                      suggest  to  the  court  that  its  prior                      representations  in  the  plea  agreement                      restrict a more vigorous argument  on the                      issue  of the  loss of  an acceptance  of                      responsibility  award.    The  government                      relies on the court's sound discretion in                      resolving  this   issue,  although  there                      appears  to  be  nothing  "extraordinary"                      about  the present case  that would bring                      it within the narrowly drawn exception of                      U.S.S.G.   [3E1.1 application note 4].1                      We hold that the  government opposed an acceptance-            of-responsibility adjustment with this sentencing memorandum;            formal opposition  was not necessary.   Cf. United  States v.                                                    ___ ______________            Garcia, 698 F.2d 31,  37 (1st Cir. 1983) ("`A  plea agreement            ______            is not an appropriate context for the Government to resort to            a   rigidly   literal   approach  in   the   construction  of            language.'") (quoting United States  v. Bowler, 585 F.2d 851,                                  _____________     ______            854 (7th Cir. 1978)); Canada, 960  F.2d at 269 ("While it can                                  ______            be  argued that  the government  stopped short  of explicitly            repudiating  the agreement,  Santobello  prohibits  not  only                                         __________            explicit repudiation of the government's assurances, but must            in  the interests  of  fairness be  read  to forbid  end-runs            around them.") (quotation omitted).   Despite stating that it            could not present  "a more vigorous argument" because  of the            plea agreement,  the government made clear  its position that                                            ____________________            1.  U.S.S.G.   3E1.1 deals with adjustments for acceptance of            responsibility.    Application  note  4 provides:    "Conduct            resulting  in  an  enhancement under   3C1.1  (Obstructing or            Impeding  the Administration of Justice) ordinarily indicates            that the  defendant has  not accepted responsibility  for his            criminal conduct.  There may, however, be extraordinary cases            in which adjustments under both   3C1.1 and 3E1.1 may apply."                                         -9-                                          9            no reduction was appropriate.  Cf.  United States v. Voccola,                                           ___  _____________    _______            600 F. Supp. 1534, 1539 (D.R.I. 1985) (Selya, J.) (finding no            breach when prosecutor "did not  attempt to do by indirection            what he was barred from doing directly").  By stating that it            was unaware of the alleged obstruction at the time it entered            into  the plea  agreement, the  government indicated  that it            would not have  made this  plea agreement had  it known  then            what it  knows  now.2   The government's  "references to  the            agreement were grudging and  apologetic," Canada, 960 F.2d at                                                      ______            269, despite our rule that "it is improper for the prosecutor            to inject material reservations  about the agreement to which            the government has committed itself," id. at 270.  Cf. United                                                  ___          ___ ______            States v. Tursi, 576  F.2d 396, 399 (1st Cir.  1978) (finding            ______    _____            no breach  where prosecutor "issued no  equivocal comments").            Not only  did  the  government  suggest that  it  thought  no            acceptance-of-responsibility  adjustment was  appropriate, it            also argued that there  was nothing "extraordinary" about the            case to bring it within the U.S.S.G.   3E1.1 application note            4   exception    allowing   an   acceptance-of-responsibility            adjustment  even  when  there  has  been  an  obstruction  of            justice.                                              ____________________            2.  At no time has the government argued that it was released            from the  plea agreement  because Clark himself  breached the            plea agreement by obstructing justice.                                         -10-                                          10                      In arguing that  its sentencing memorandum did  not            breach the  plea agreement, the government  relies on another            portion of the plea agreement, which reads:                      The defendant also  understands that  the                      Government   and    the   United   States                      Probation  Office  will  (a)  advise  the                      Court of any  additional, relevant  facts                      that   are   presently   known   or   may                      subsequently come to their attention; (b)                      respond  to questions from the Court; (c)                      correct  any  inaccuracies  in  the  pre-                      sentence  report;  (d)  respond   to  any                      statements made by  the defendant or  his                      counsel to a probation officer or  to the                      Court; and (e) may address the Court with                      respect  to an appropriate sentence to be                      imposed in this case.            Based  on  this  language,  the government  argues  that  its            sentencing memorandum "did not  contain a request for relief,            but merely stated facts."  We do not agree.  While it is true            that the government had not only the ability  but the duty to            draw  facts to the court's attention, see Canada, 960 F.2d at                                                  ___ ______            270  n.7 ("It is necessary  at all times  that the government            `level'  with   the  court  as  to  the   correct  facts  and            calculations  relevant  to guideline  sentencing."); Voccola,                                                                 _______            600 F. Supp. at 1538 ("Under virtually all circumstances, the            government has the  duty to disclose  to the court  pertinent            factual  information  in  its  possession."),  we  think  the            government did more in this case.  Rather than merely drawing            facts and law to the court's  attention, or answering factual            or legal questions posed by the court, the government instead            indicated  that it  opposed an  adjustment for  acceptance of                                         -11-                                          11            responsibility and effectively  argued against it by  stating            that this was not an "extraordinary" case.                      Unquestionably,  the  government's  promise not  to            oppose  an  acceptance-of-responsibility  adjustment   was  a            significant  factor  in  defendant's decision  to  accept the            agreement.  Thus, by opposing an acceptance-of-responsibility            adjustment, the government made  a significant and deliberate            breach of the plea agreement with defendant.   Therefore, the            district court's  holding that the government  did not breach            the plea agreement must be reversed.            D.  Was the Breach Harmless?            ____________________________                        "[A] prosecutorial  failure to fulfill  a promise            or  to make a proper promise is not rendered harmless because            of judicial refusal to  follow the recommendation or judicial            awareness of  the impropriety."   Correale, 479 F.2d  at 949.                                              ________            Thus,  even  if,  as  in  this  case,  the  sentencing  judge            indicates that the prosecutor's breach  had no effect on  the            defendant's sentence,  the defendant  is still entitled  to a            remedy.3    See Santobello,  404 U.S.  at 262  (remanding for                        ___ __________                                            ____________________            3.  Of course, minor deviations  from the plea agreement will            not mandate  resentencing.  This is  because minor deviations            do not affect  the consideration due the  defendant under the            plea agreement.   Cf. Santobello,  404 U.S. at  262 ("when  a                              ___ __________            plea  rests  in  any  significant  degree  on  a  promise  or            agreement of the  prosecutor, so  that it can  be said to  be            part of the inducement or consideration, such promise must be            _______________________________________            fulfilled") (emphasis added);  Panzardi-Alvarez, 879 F.2d  at                                           ________________            986  ("The government  may  not breach  any  term of  a  plea            agreement  which induced  the  defendant to  plead  guilty.")                       _____________            (emphasis added).   See Correale, 479 F.2d at 947 ("we do not                                ___ ________                                         -12-                                          12            remedy  even  though   sentencing  judge  "stated  that   the            prosecutor's recommendation did not influence him and we have            no reason to doubt that").  As we explained in Correale,                                                           ________                      The   reason  [the   government's  breach                      cannot be harmless] is obvious; it is the                      defendant's   rights   which  are   being                      violated  when  the  plea   agreement  is                      broken or meaningless.   It is his waiver                      which must be voluntary and knowing.   He                      offers  that waiver  not in  exchange for                      the  actual  sentence  or impact  on  the                      judge,    but   for    the   prosecutor's                      statements  in court.   If  they  are not                      adequate, the waiver is ineffective.            479 F.2d at 949.                      In  this case,  despite  finding no  breach by  the            government,  the  district court  stated  that  it would  not            consider the  government's sentencing  memorandum.   That the            district court  did not even consider  the breaching material            (as  opposed to  just not  being influenced  by it)  will not            defeat the need for Clark to be resentenced.  We confronted a            similar  situation  in  Kurkculer,  in  which  the prosecutor                                    _________            initially  suggested   sentencing  in  accordance   with  the            presentence  report   but  then,  after  learning  that  such            recommendation breached  the  plea agreement,  withdrew  that            recommendation and  substituted the one promised  in the plea                                            ____________________            go  so  far as  to  say  that  minor  and harmless  slips  by            prosecutors  will void a plea  bargain").  In  this case, the            government does not contest that its promise not to oppose an            acceptance-of-responsibility  adjustment  was  part   of  the            consideration for Clark's guilty plea.                                         -13-                                          13            agreement.    We  held  that  the   defendant  needed  to  be            resentenced, explaining,                      The Court in Santobello nowhere suggested                                   __________                      that  a mere withdrawal  of the offending                      recommendation  with substitution  of the                      agreed recommendation would  have been  a                      sufficient remedy.  While no such attempt                      was made in  Santobello, its futility  is                                   __________                      suggested by the Court's comment that "at                      this stage  the prosecution is  not in  a                      good   position   to   argue   that   its                      inadvertent   breach   of  agreement   is                      immaterial.  .  . .  That  the  breach of                      agreement was inadvertent does not lessen                      its impact."             Kurkculer, 918 F.2d at  302 (quoting Santobello, 404  U.S. at            _________                            __________            262) (alteration in Kurkculer).  Thus, even if the government                                _________            had withdrawn  its sentencing  memorandum, Clark would  still            have been  entitled to a remedy.  That the district court did            not consider the government's breaching sentencing memorandum            is irrelevant to the question of whether Clark is entitled to            a remedy.            E.  Remedy            __________                      In  Santobello, the  Supreme  Court indicated  that                          __________            there are two  ways to  remedy the government's  breach of  a            plea  agreement:   giving the  defendant "the  opportunity to            withdraw his plea of guilty," or "specific performance of the            agreement."  404 U.S.  at 263.  In unusual  circumstances, we            have  also crafted other remedies.  See Correale, 479 F.2d at                                                ___ ________            950 (using  equitable powers  to remand with  instructions to            impose  a specific  sentence  because such  sentence was  the                                         -14-                                          14            "only  just  remedy  and   the  only  one  which   could  now            approximate specific  enforcement  of the  agreement").    If            specific  performance  is  a  sufficient  remedy,  then   the            defendant   must  be   resentenced  by  a   different  judge.            Kurkculer, 918 F.2d at 298.            _________                      The  choice  of  remedy  is normally  left  to  the            discretion of the sentencing court.  See Santobello, 404 U.S.                                                 ___ __________            at  263.  This  court, however,  has "repeatedly  expressed a            preference  for  specific  performance  of  the agreement  by            __________            resentencing before  a different judge  rather than  vacating            pleas," Kurkculer,  918 F.2d  at 300 (emphasis  in original),                    _________            for "[o]nce that  is done,  a defendant `will  obtain all  he            says  he  was promised,'"  id.  (quoting  McAleney v.  United                                       ___            ________     ______            States, 539 F.2d 282, 286 (1st Cir. 1976)).            ______                      Although Clark sought to withdraw his plea prior to            sentencing, he does not do so on appeal.  Rather, he requests            only  specific performance.   In similar cases,  we have held            that  "specific performance  by resentencing  is all  that is            required," id. at 302, for                       ___                      [s]pecific performance . .  . is a lesser                      burden on the  government and  defendant.                      Further, permitting  a judge to  vacate a                      plea over defendant's objection on breach                      by the prosecution allows  the government                      to back out of  its agreement at will and                      obtain  a new trial.   Given nothing more                      than   the   prosecutor's   breach,   the                      circumstances  do  not  "require"  a  new                      trial.                                         -15-                                          15            Id.  See also Canada, 960 F.2d at 271 ("Here Canada seeks and            ___  ___ ____ ______            we grant [specific  performance].   We do not  find that  the            circumstances of  this case  demand the  greater remedy  of a            withdrawn plea absent defendant's request for such relief.").            Thus,  we  remand  this  case   with  orders  that  Clark  be            resentenced by a different judge.                                         -16-                                          16                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      Because we  find that the  government breached  its            plea agreement with Clark,  we remand for resentencing before            another judge.   In light of our  holding that Clark  must be            resentenced, we  need not reach Clark's  other assignments of            error.4                      Remanded for further proceedings in accordance with                      Remanded for further proceedings in accordance with                      ___________________________________________________            this opinion.            this opinion.            _____________                                            ____________________            4.  Clark  argues  that  the  district  court  erred  in  not            construing certain statements in  the light most favorable to            him, in finding that  he obstructed justice, and  in applying            the  preponderance-of-the-evidence  standard  instead of  the            reasonable-doubt   standard   to   determine  whether   Clark            obstructed justice.                                         -17-                                          17
