                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-1999

USA v. Huang
Precedential or Non-Precedential:

Docket 98-5393




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Recommended Citation
"USA v. Huang" (1999). 1999 Decisions. Paper 141.
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Filed May 24, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5393

UNITED STATES OF AMERICA

v.

DA PING HUANG,
       Appellant

Appeal from the United States District Court
For the District of New Jersey
D.C. No.: 94-cr-00570-02
District Judge: Honorable Mary Little Cooper,
District Judge

Submitted Under Third Circuit LAR 34.1(a)
March 26, 1999

Before: GREENBERG, ROTH, and ROSENN,
Circuit Judges.

(Filed May 24, 1999)

       George S. Leone
       Shawna H. Yen
       Office of United States Attorney
       970 Broad Street, Room 700
       Newark, NJ 07102
       Counsel for Appellee

       Po W. Yuen
       Yuen & Yuen
       70 Bowery, Suite 205
       New York, NY 10013
       Counsel for Appellant
OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal raises a question of first impression in this
circuit, and apparently the nation, relating to the
enforcement of a cooperative plea agreement in the course
of the sentencing proceedings under the United States
Guidelines. In determining whether the Government
breached its agreement under the plea agreement to move
for a downward departure in the sentencing proceedings
before the United States District Court for the District of
New Jersey, the defendant raised an issue pertaining to the
scope of review to be employed by the sentencing court
when the plea agreement does not contain language
expressly reserving unto the Government the sole discretion
to determine whether the defendant is entitled to a motion
for departure under section 5K.1 of the Guidelines.

The district court concluded that the agreement in this
case must be interpreted as reserving to the Government
the sole discretion to determine, on a subjective basis,
whether defendant's cooperation complied with the
agreement. The court, therefore, held that the Government's
refusal to move for a downward departure was reviewable
only for unconstitutional motive or bad faith. The court
found neither; it held that the Government did not break
the plea agreement by declining to move for a departure,
and that no hearing was necessary to resolve the issue. The
defendant timely appealed.1 We affirm.

I.

A federal grand jury for the District of New Jersey
indicted the defendant Da Ping Huang for conspiracy to
distribute and possess with intent to distribute 700 grams
of heroin in violation of 21 U.S.C. SS 841(a)(1) and 846
_________________________________________________________________

1. The district court had subject matter jurisdiction under 18 U.S.C.
S 3231 and this court has appellate jurisdiction under 28 U.S.C. S 1291
and 18 U.S.C. S 3742.

                               2
(Count I), as well as with the crime of possession with
intent to distribute 700 grams of heroin in violation of 21
U.S.C. S 841(a)(1) and 18 U.S.C. S 2 (Count II).

The defendant pled guilty to Count I pursuant to a plea
agreement. Under the terms of the agreement, the
defendant agreed to cooperate with the Government,
including truthfully disclosing all information concerning all
matters about which the Government inquired. The
agreement also provided that if (1) the defendant fully
complied with the terms of the plea agreement and (2)
provided substantial assistance with respect to one or more
persons who have committed offenses, the Government
would move the sentencing court for a downward departure
pursuant to U.S.S.G. S 5K1.1.

Prior to the defendant's sentencing, the Government
informed him that he failed to honor his obligations under
the plea agreement, and that it would not be moving for a
downward departure in his sentence. The court sentenced
the defendant within the guideline range to a term of 80
months of imprisonment. The defendant appealed to this
court on the basis that the Government breached its
obligation under the plea agreement to move for a
downward departure from the guidelines. This court
remanded the case to the district court to determine
whether the defendant could establish a breach of the plea
agreement.

On remand, the defendant conceded that "the
Government is relieved of its obligations if Da Ping Huang
had breached the Plea Agreement." The defendant applied
for specific performance to have the Government move for
a downward departure of his sentence. Alternatively, he
moved for leave to withdraw his guilty plea if specific
performance were denied. The district court heard
arguments on the defendant's motions. On July 22, 1998,
the district court by written opinion and order denied the
motions.

II.

The Government must adhere to the terms of a plea
agreement because it is well established that the agreement

                                3
itself is part of the inducement for the defendant to enter a
guilty plea. See, e.g., United States v. Moscahlaidis, 868
F.2d 1357, 1361 (3d Cir. 1989). The defendant has the
burden to establish breach of a plea agreement by a
preponderance of the evidence. See United States v. Conner,
930 F.2d 1073, 1076 (4th Cir. 1991). Whether the
Government violated a plea agreement is a question of law
subject to de novo review. See United States v. Roman, 121
F.3d 136, 142 (3d Cir. 1997).

A.

The cooperative plea agreement provided that if Da Ping
Huang "fully complies with this agreement prior to his
sentencing, provides substantial assistance in the
investigation or prosecution of one or more persons who
have committed offenses," the United States will move the
sentencing court under section 5K.1 to depart from the
applied guideline range.2 On appeal, the central question
that concerns us is whether the district court erred in its
interpretation that the plea agreement required the
defendant to satisfy the Government that he complied with
its terms and provided substantial assistance to the
Government in the investigation of one or two persons who
had committed offenses. The defendant contends that the
plea agreement does not involve an existing ambiguous
contractual term which requires construction but"involves
an attempt by the Government to add a term that is
completely absent from the agreement." (Emphasis
_________________________________________________________________

2. In pertinent part, the plea agreement provided:

       [I]f Da Ping Huang fully complies with this agreement and, prior to
       his sentencing, provides substantial assistance in the
investigation
       or prosecution of one or more persons who have committed offenses,
       the United States: (1) will move the sentencing court, pursuant to
       Section 5K1.1 of the Sentencing Guidelines, to depart from the
       otherwise applicable guideline range; (2) may move the sentencing
       court, pursuant to 18 U.S.C. S 3553(e), to impose a sentence lower
       than the statutory minimum term of imprisonment offive years; or
       (3) in the event that the sentencing court declines to depart from
the
       applicable guideline range, will recommend that the sentencing
       court impose the minimum sentence required under the applicable
       guideline range.

                               4
included). The defendant therefore concludes that it is the
court, not the prosecution, that determines the issue of fact
and law, on an objective basis, and that the burden of proof
is on the Government to establish that the defendant did
not comply with his obligations under the agreement. If this
were a case solely of ordinary contract law, there would be
considerable merit to the defendant's contention.

Unfortunately for the defendant, a cooperative plea
agreement in a criminal sentencing proceeding under
current law is not altogether the same as a civil contract
dispute, although civil contract law is important and useful
in its interpretation. United States v. Khan, 920 F.2d 1100,
1105 (2nd Cir. 1990). The agreement must also be
construed in light of the applicable federal statute and
related Sentencing Guidelines. Judge Cooper, in a carefully
analyzed opinion, examined the law pertaining to plea
agreements and focused on the absence in this plea
agreement of any provision in which the Government
expressly reserved the sole discretion to determine whether
the defendant is entitled to a motion for a section 5K.1
departure. The Government concedes that the agreement
contained no such provision. However, it argues, as it did
in the district court, that the plea agreement should be
interpreted similarly to those agreements which expressly
reserves to the Government "sole discretion" in the matters
of 5K.1 motions and the exercise of that discretion by the
Government on a subjective basis. We are constrained to
agree.

The district court interpreted the plea agreement,
particularly its critical portions relating to the
Government's obligation to move for a downward departure
and the defendant's obligation to cooperate, under contract
law standards. It concluded that the agreement is a
completely integrated agreement. Nonetheless, it must be
interpreted in the context of the circumstances under
which it was formulated and general principles of the
interpretation of contracts. See Restatement (Second) of
Contracts S 212(1).

Under the plea agreement, the Government agreed that if
Da Ping Huang fully complies with this agreement, prior to
sentencing, provides substantial assistance, the United

                                5
States "(1) will move the sentencing court, pursuant to
section 5K.1 of the sentencing guidelines to depart from the
otherwise applicable guideline range; (2) may move the
sentencing court, pursuant to 18 U.S.C. S 3553(e) to impose
a sentence lower than the statutory term of imprisonment
of five years; ... ."

Thus, although the agreement did not specifically reserve
to the Government the sole discretion to evaluate whether
the defendant has rendered substantial assistance, it
"contemplate[d] that any downward departure motion must
be made `pursuant to' 18 U.S.C. S 3553(e) and Guidelines
5K1.1." United States v. Rexach, 896 F.2d 710, 714 (2nd
Cir. 1990). The statute and the policy statement of the
Guidelines 5K1.1 both provide for downward departures
when a defendant furnishes substantial assistance. Such
departures may be made upon motion of the Government.
When Congress amended the sentencing statute to add
subsection (e) to 18 U.S.C. S 3553, it limited the district
court's power to impose a sentence below the level
established as a minimum "to motions by the Government
and in accordance with the guidelines and policy
statements issued by the Sentencing Commission."

Thus, the plea agreement was implicitly subject to the
statute and the Sentencing Guidelines and both expressly
lodge the decision to make the motion in the Government's
discretion, regardless of whether the Government expressly
reserved such decision in the plea agreement. See Rexach,
896 F.2d at 913. The negotiations between the parties to
the agreement are consistent with this conclusion. The
district court found that it was undisputed that during the
plea negotiations, the defendant's counsel demanded that if
the Government decided not to move for a downward
departure, it would have to justify that decision in court
under an objective standard. The Government rejected that
proposal.

Thus, the district court had a very limited role in
reviewing the Government's refusal to move for a downward
departure. In United States v. Isaac, 141 F.3d 477 (3d Cir.
1998), this court held that a cooperative plea agreement
providing for a motion for downward departure conditioned
on satisfaction of the obligation does not altogether strip

                               6
the district court of power to review the Government's
performance under the contract. We were persuaded by the
analysis in Rexach that "a district court is empowered to
examine for `good faith' a prosecutor's refusal to file a
S 5K1.1 motion pursuant to a plea agreement that gives the
prosecutor `sole discretion' to determine whether the
defendant's assistance was substantial." 141 F.3d at 483.
This requirement is common in contract law and merely
requires "that the Government's position be based on an
honest evaluation of the assistance provided and not on
considerations extraneous to that assistance." Id. at 484.

We, therefore, agree with the district court and hold that
the Government's decision not to move for a departure is
reviewable only for bad faith or an unconstitutional motive.
Huang has not alleged bad faith or an unconstitutional
motive.

Thus, the district court denied the defendant's request to
review the Government's refusal to move for downward
departure. The court held no hearing because it was
satisfied from the proffer of the defendant at oral argument
that a hearing would provide no significant assistance even
if it were applying the objective standard urged by the
defendant. We see no error in both the court's denial of the
defendant's request for review of the Government's action
and for a hearing.

B.

We turn to the defendant's argument that this court
must reverse the district court's denial of his motion for
leave to withdraw his guilty plea because the plea
agreement expressly provides that it "shall be null and
void" if it is established that he violated any provision thereof.3
We disagree.
_________________________________________________________________

3. The agreement provided:

       Should Da Ping Huang withdraw from this agreement, or should Da
       Ping Huang commit any federal, state or local crime between the
       date of this agreement and his sentencing in this matter, or should
       it be established that Da Ping Huang intentionally has given
       materially false, misleading, or incomplete testimony or
information
       or otherwise has violated any provision of this agreement, this
       agreement shall be null and void.

(emphasis added)

                                7
The defendant presents the remarkable proposition that
when the Government refuses to move for a downward
departure in the sentence because the defendant has not
performed under his plea agreement, he should be
permitted to withdraw his guilty plea. This would reward
the defendant for his breach of the plea agreement and turn
the entire sentencing process in the nation into chaos. It
makes no sense and we reject it. Moreover, we are troubled
by the defendant's failure to seek a withdrawal of his guilty
plea at or prior to his sentencing hearing despite notice
from the Government before the hearing that it would not
be making a section 5K1.1 downward departure motion.
Additionally, the defendant did not seek to withdraw his
guilty plea in his first appeal to this court. Only on
December 3, 1997, by letter brief to the district court before
the status conference on remand did the defendant raise
this remedy for the first time.

Accordingly, we conclude that the defendant's breach of
the plea agreement does not permit him to withdraw his
guilty plea.

III.

Accordingly, for the reasons set forth above, the
judgment of the district court will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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