                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 11-3373
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                     ERIC MOODY,

                                        Appellant
                                      ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 1-10-cr-00192-002)
                      District Judge: Honorable Sylvia H. Rambo
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 18, 2012

               Before: SCIRICA, AMBRO and FISHER, Circuit Judges.

                                  (Filed: June 12, 2012)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Pursuant to a written plea agreement, Eric Moody (“Moody”) pled guilty to

conspiracy to manufacture and utter fictitious obligations, in violation of 18 U.S.C. § 371.

The District Court sentenced Moody to a term of 27 months’ imprisonment. Moody
appeals, arguing that the Government breached the terms of the plea agreement. We will

affirm.

                                                I.

          We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

          On June 16, 2010, a grand jury returned a five-count indictment against Moody

and two other individuals, following a federal investigation into counterfeit checks and

currency. The indictment charged Moody with engaging in a conspiracy to manufacture

and utter fictitious obligations of an organization and counterfeit obligations of the

United States in violation of 18 U.S.C. § 371, as well as the manufacture and utterance of

such instruments in violation of 18 U.S.C. §§ 514(a)(1)-(2) and 471. The Government

offered Moody a plea agreement, and on October 5, 2010, the federal public defender

emailed the U.S. Attorney: “[Moody] is going to sign plea agreement, you should get it

next week, is that okay? And will you give him credit for coop with state attorney

general office?” The U.S. Attorney responded the same day: “If he cooperated, I’ll give

him credit. Just let me know who he spoke to and what he did.” On October 12, 2010,

Moody entered into a plea agreement with the Government under which he agreed to

plead guilty to one count of conspiracy to manufacture and utter fictitious obligations, in

violation of 18 U.S.C. § 371. The plea agreement stated that:


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       “The defendant has agreed to cooperate with the United States. Upon
       completion of the cooperation, if the United States believes the defendant
       has provided ‘substantial assistance’ pursuant to [18 U.S.C. § 3553(e) or
       U.S.S.G. § 5K1.1] and has fully complied with the terms of this Agreement,
       the United States may request the Court to depart below any applicable
       mandatory minimum range only, any guideline range only, or both, when
       fixing a sentence for this defendant.”

It also contained a list of grounds upon which the Government would decline to seek a

downward departure, such as if Moody breached any terms of the agreement. The

District Court held a plea hearing on December 9, 2010, and accepted Moody’s guilty

plea. During the plea colloquy, Moody indicated that he understood the plea agreement.

       According to the Presentence Investigation Report (“PSR”), Moody’s total offense

level was 13, his criminal history category was VI, and the resulting Guidelines range

was 33 to 41 months. Neither party objected to this report.

       On August 10, 2011, Moody sent the District Court a letter explaining the

assistance he had provided to the Pennsylvania Office of the Attorney General beginning

in March of 2010, after he was arrested on state felony drug charges. The Government

responded that it would not move for a downward departure, because it “would not make

sense to give [Moody] a double benefit” and, furthermore, Moody’s cooperation with

state officials was not related to the federal counterfeit investigation.

       At sentencing on August 15, 2011, the District Court considered the substantial

assistance issue in detail. Moody’s counsel argued that the Government had violated the

terms of the plea agreement by refusing to move for a downward departure despite its


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promise to do so if Moody provided substantial assistance to the state attorney general.

The U.S. Attorney responded that the Government had only intended to give Moody

credit if he cooperated as a result of his federal arrest, but not if he cooperated as a result

of a separate, unrelated state arrest.

       The District Court did not rule on whether the United States had violated the plea

agreement, but varied from the 33 to 41 month Guidelines range and sentenced Moody to

27 months’ imprisonment. In doing so, it stated that it had “taken into consideration the

fact that there may have been a misunderstanding between defense counsel and

government counsel concerning a 5K1.” Moody timely filed his notice of appeal.

                                              II.

       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291. “Whether the government breached the

plea agreement is a question of law which this Court reviews de novo.” United States v.

Swint, 223 F.3d 249, 252 (3d Cir. 2000).

                                              III.

       Moody argues that the Government breached the terms of the plea agreement

when it failed to move for a downward departure pursuant to U.S.S.G. § 5K1.1. Plea

agreements are contractual in nature, so we apply contract law to determine whether the

plea agreement was breached. See United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d

Cir. 1998). We require the Government to strictly comply with the terms of the


                                               4
agreements in order to “preserve the integrity of our constitutional rights.” United States

v. Larkin, 629 F.3d 177, 186 (3d Cir. 2010). “In determining whether the plea agreement

has been breached, courts must determine ‘whether the government’s conduct is

inconsistent with what was reasonably understood by the defendant when entering the

plea of guilty[,]’” Nolan-Cooper, 155 F.3d at 236 (quoting United States v. Badaracco,

954 F.2d 928, 939 (3d Cir. 1992)), and we will not “rely upon a ‘rigidly literal’ approach

to the construction of the terms of the plea agreement.” Id. Because the plea agreement

did not require the Government to move for a downward departure, and Moody could not

reasonably construe the plea agreement to contain such a requirement, we agree with the

District Court that the Government did not breach the terms of the plea agreement.

       Moody contends that the Government was required to move for a downward

departure based on the substantial assistance he provided to Pennsylvania authorities.

However, the plea agreement places no such limitations on the Government’s discretion.

The plea agreement lists certain grounds upon which the Government will most certainly

decline to move for downward departure, but even where such grounds do not exist, the

plea agreement grants the Government discretion to determine whether to move for

downward departure. Paragraph 12 of the plea agreement, entitled “Substantial

Assistance,” provides that “if the United States believes the defendant has provided

‘substantial assistance’ . . . the United States may request the Court to depart below any

applicable mandatory minimum range . . . when fixing a sentence for the defendant.”


                                             5
The plea agreement also includes a standard merger, or integration clause, providing that

the agreement as written is “the complete and only Plea Agreement . . . [and] supersedes

all prior understandings, if any, whether written or oral . . . .” Thus, the plain language of

the plea agreement grants the Government the sole discretion to decide whether to move

for a downward departure pursuant to U.S.S.G. § 5K1.1.

       Moody argues that even if the plea agreement itself did not actually require the

Government to move for a downward departure, he reasonably understood the plea

agreement to include such a requirement based on the October 5 email exchange. Moody

argues that, based on this email exchange, he reasonably believed that he would get credit

for cooperating with the state attorney general, and the Government cannot now back out

of this agreement and refuse to give Moody “credit” for doing so.

       Moody’s argument fails for several reasons. First, it was unreasonable for Moody

to believe that the Government would be required to depart downward based on this

email exchange, because the plea agreement’s merger clause made clear that the plea

agreement represented the complete and only agreement to which the parties would be

held. Second, Moody’s email requesting “credit” for cooperation with state authorities

failed to explain that such cooperation was the result of a previous unrelated arrest rather

than the result of the bargained-for exchange implicit in the plea agreement. Moody

could not reasonably expect that the Government would credit him once it understood the

details of his cooperation, and it is unreasonable for him to believe that his convenient


                                              6
omission could thus bind the Government. Finally, the reply email only stated that

Moody would be credited “[i]f he cooperated,” a contingent statement that clearly left the

Government with the discretion to determine whether Moody “cooperated” under the

terms of the plea agreement. To the extent that Moody believed the reply email obligated

the Government to “credit” him regardless of the facts or circumstances of the

cooperation, such a belief was clearly unreasonable. In sum, the Government did not

breach the terms of the plea agreement because its conduct was not “inconsistent with

what was reasonably understood” by Moody based on the October 5 email or the terms of

the plea agreement itself.

                                            VI.

       For the reasons set forth above, we will affirm the sentence of the District Court.




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