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


2-9-2004

USA v. Rivera
Precedential or Non-Precedential: Precedential

Docket No. 02-3067




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                PRECEDENTIAL                    Counsel for Appellant
   UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT                          Clayton A. Sweeney, Jr. (Argued)
                                                       P.O. Box 55441
                 No. 02-3067                           Philadelphia, PA 19127-5441

                                                Counsel for Appellee
   UNITED STATES OF AMERICA
                                                       Christopher J. Christie
                      v.                                      United States Attorney
                                                       George S. Leone
              ISAAC RIVERA,                                   Chief, Appeals Division
                         Appellant                     970 Broad Street, Room 700
                                                       Newark, N.J. 07102-2535

  ON APPEAL FROM THE UNITED                            Norman Gross (Argued)
    STATES DISTRICT COURT                                    Assistant United States
     FOR THE DISTRICT OF                                     Attorney
         NEW JERSEY                                    United States Courthouse
                                                       401 Market Street, Fourth Floor
       District Court Judge:                           Camden, N.J. 08101-2098
       Honorable Jerome B. Simandle

           (D.C. No. Cr. 01-373-05)
                                                      OPINION OF THE COURT

       Argued: December 4, 2003

Before: SLOVITER and ALITO, Circuit             OBERDORFER, Senior District Judge:
Judges, and OBERDORFER,* District
Judge.                                                  Isaac Rivera appeals from his
                                                sentence after he pled guilty pursuant to
   (Opinion Filed: February 9, 2004)            a plea agreement with the United States.
                                                For the reasons stated below, we hold
                                                that the government breached that
                                                agreement and vacate the sentence. We
       *                                        then follow the well-established
         The Honorable Louis F.
                                                procedure of remanding to the district
Oberdorfer, Senior District Judge for the
                                                court for resentencing.
District of Columbia, sitting by
designation.

                                            1
                    I.                                    The dispute on appeal focuses on
                                                  the provisions of the plea agreement
        From approximately June 2000              addressing sentencing, in particular a
until on or about June 5, 2001, Rivera 1          section titled “Stipulations.” App. at
led a drug trafficking conspiracy that            60(a). That section stated that the United
imported kilogram-quantities of cocaine           States and Rivera “agree to stipulate at
powder from his suppliers in Puerto               sentencing to the statements set forth in
Rico, converted some of that powder into          attached Schedule A.” Id. Schedule A,
cocaine base, and distributed the cocaine         in turn, provided in its first sentence that
and cocaine base in Camden, New                   the United States and Rivera “agree to
Jersey. On October 9, 2001, a federal             stipulate at sentencing to the statements
grand jury returned a two-count                   set forth below, subject to the conditions
indictment against Rivera. Count One              in the attached plea agreement.” Id. at
charged him with conspiracy to distribute         64(a). Schedule A also stated that the
and to possess with intent to distribute          base Offense Level was 38. By way of
more than 50 grams of cocaine base and            adjustment, however, Rivera would
more than five kilograms of cocaine               receive a two-level Offense Level
powder in violation of 21 U.S.C. § 846.           reduction if his “acceptance of
Count Two charged possession with                 responsibility continue[d] through
intent to distribute more than 500 grams          sentencing.” Id. He was to receive an
of cocaine in violation of 21 U.S.C. §            additional one-level decrease if the
841(a)(1). On November 7, 2001, Rivera            Offense Level set by the district court
and the United States entered into an             was 16 or greater. Id. Section 5, the
agreement which provided, among other             provision focused on by the parties on
things, that Rivera would plead guilty to         appeal, stated, “In accordance with the
Count One of the indictment and the               above, the applicable guidelines total
United States would dismiss Count Two.            offense level is 35.” Id. (emphasis
                                                  supplied).

                                                         The plea agreement also stated
       1                                          some conditions: that the “sentence to be
               The underlying criminal
                                                  imposed upon Isaac [Rivera] is within
indictment named Rivera as Isaac Burgos
                                                  the sole discretion of the sentencing
a/k/a Isaac Bonilla a/k/a Isaac Rivera. At
                                                  judge” and that the government “cannot
the change of plea hearing, by the
                                                  and does not make any representation or
consent of both parties, the district court
                                                  promise as to what guideline will be
granted a motion to deem changed all
                                                  found applicable . . . or what sentence
pleadings and documents to reflect that
                                                  Isaac [Rivera] will ultimately receive.”
the defendant (now appellant)’s true
                                                  App. at 59(a). The plea agreement
name is Isaac Rivera, with Burgos and
                                                  further stated that “[e]xcept as otherwise
Bonilla listed as aliases.

                                              2
provided in this agreement, [the United           The court asked: “Does the government
States] reserves its right to take any            take any position with regard to role in
position with respect to the appropriate          the offense?” App. at 29(a). By way of
sentence to be imposed on [Rivera] by             allocution, the prosecutor responded, “we
the sentencing judge.” Id. at 59(a)-60(a).        stand by the probation officer’s
                                                  conclusions. . . . The notion that
       On February 10, 2002, the United           because Schedule A refers to a specific
States Probation Office advised the               offense level . . . perhaps it’s a little bit
prosecution, Rivera, and the court that           of poor draftsmanship. . . . Schedule A
Rivera’s leadership “role in the                  is . . . silent [] as . . . to any other upward
conspiracy warrants a four level increase,        or downward adjustments.” Id. at 29(a)-
pursuant to [USSG] § 3B1.1(a).”                   30(a).
Presentence Report at 10. Accordingly,
the report called for an Offense Level of                 Ruling orally from the bench at
39, while recognizing that “a 4+                  the sentencing hearing, the district court
adjustment [] is contrary to the plea             stated:
agreement, in that the plea agreement
specifies a total offense level of 35.” Id.              the parties recognized at
at 19. On April 18, 2002, Rivera filed                   the time of their stipulation
objections in which he stated regarding                  that there may be other
the recommendation that the Offense                      Guidelines that have a
Level be set at 39: “such an application is              bearing upon what the
repugnant to the defendant’s plea                        appropriate sentence
agreement.” App. at 132(a).                              should be, and that they
                                                         had not reached agreement
        The United States’ attorney                      as to any other Guidelines,
replied to Rivera’s objections by filing a               and . . . The parties do
letter brief with the district court. The                reserve their rights to argue
letter argued that Rivera’s assertion                    mitigating or aggravating
“constitutes a clear misapplication of the               circumstances that are not
Plea Agreement,” and that, regarding the                 covered by their
defendant’s role within the conspiracy,                  stipulations. . . . The
“the United States is not precluded from                 probation department has
arguing that the defendant is deserving of               proposed that there be a
a role enhancement.” Id. at 143(a).                      four point enhancement for
Rivera did not file a response to the                    the defendant’s leadership
government’s letter.                                     role in the conspiracy. The
                                                         parties’ stipulation is silent
       On July 19, 2002, the district                    as to any adjustment for
court conducted the sentencing hearing.                  role. The parties’

                                              3
       stipulation does not                      applicable offense level.2 Our analysis of
       constitute an agreement                   that argument proceeds in three parts.
       that there shall be no role               We first discuss the standard of review,
       adjustment.                               then the merits of Rivera’s claim that the
                                                 United States breached the plea
       But even if it is interpreted             agreement, then the issue of remedy.
       as at least a silent
       agreement that the proper                 A.     Standard of Review
       Total Offense Level is 35
       as Paragraph 5 of the                            The threshold question is the
       stipulations recites, the                 applicable standard of review. We
       Court nonetheless has to                  conclude that our review is de novo. The
       look at the facts of the case
       and to determine whether
       the Sentencing Guidelines                        2
                                                                Rivera raises five
       indicate that any role
                                                 additional arguments: that (1) the district
       adjustment, either upward
                                                 court erred in failing to hold that the
       or downward, is
                                                 government breached its duty to consider
       appropriate in this case.
                                                 all of Rivera’s cooperation under USSG
                                                 § 5K1.1; (2) 21 U.S.C. §§ 841(B)(1)(A)-
Id. at 27(a)-28(a) (emphasis supplied).
                                                 (B) are facially unconstitutional with
                                                 respect to cocaine and cocaine base; (3)
       The district court ultimately
                                                 USSG § 3B1.1(a) is unconstitutional
adopted the factual findings and
                                                 under Apprendi v. New Jersey, 530 U.S.
recommendations of the Presentence
                                                 466 (2000), because it increases a
Report and, accordingly, set the
                                                 mandatory minimum sentence upon
applicable Offense Level to 39 and
                                                 judicial fact-finding under a
sentenced Rivera to a 324 months term
                                                 preponderance of the evidence standard
of imprisonment and supervised release
                                                 of proof; (4) USSG § 3B1.1 is
of five years. This appeal followed.
                                                 unconstitutional under Apprendi and
                                                 Ring v. Arizona, 536 U.S. 584 (2002),
                    II.
                                                 because it authorizes punishment beyond
                                                 the facts established by the offense of
       Rivera’s principal argument is that
                                                 conviction or stipulations; and (5) that
the United States’ allocution breached
                                                 applying 18 U.S.C. § 3742 (g)(2) on
the plea agreement by advocating to the
                                                 remand would violate the constitutional
sentencing judge that the four-level
                                                 separation of powers doctrine. We
enhancement recommended by the
                                                 resolve the appeal on the issue of breach
Presentence Report be added to the
                                                 of plea agreement and do not reach these
                                                 additional arguments.

                                             4
United States argues that Rivera failed to                 The government argues that our
raise the issue below. It cites United             statement in Queensborough is not
States v. Thornton, 306 F.3d 135, 137              controlling because we ultimately held
(3d Cir. 2002), for the proposition that           that there was no error and because it is
Rivera’s claim for breach of plea                  not made clear in that decision whether
agreement by the United States is                  the defendant made any argument that
therefore subject to the “plain error              the plain error standard of review should
standard of review on appeal.” Aple’s              apply. This reading of Queensborough is
Br. at 19. However, Thornton involved a            too narrow: in adopting a “plenary”
defendant’s claim that a district court            framework of review, rather than the
violated the plea agreement by                     discretionary four-plus step plain error
considering evidence that the plea                 review of United States v. Olano, 507
agreement had stipulated would be                  U.S. 725 (1993), and its progeny, we did
excluded for the purposes of sentencing.           not reserve the question of what standard
See 306 F.3d at 1357. In contrast, in a            of review controlled. Nor did we qualify
case where the defendant, like Rivera,             our statement that the applicable review
claimed breach of the plea agreement by            was “plenary” in any way. Our law
the prosecution, and the defendant                 defines “plenary” as de novo. See Dixon
“concede[d] that he did not raise this             Ticonderoga Co. v. Estate of O’Connor,
objection in the district court,” this court       248 F.3d 151, 161 (3d Cir. 2001).
has stated, without qualification, that            Accordingly, even if Rivera’s objection
“whether the government violated the               to the Presentence Report did not
terms of a plea agreement is a question of         effectively raise the issue before the
law subject to plenary review.” United             district court, 4 our review must be de
States v. Queensborough, 227 F.3d 149,
156 (3d Cir. 2000) (emphasis supplied)
(citing United States v. Moschahlaidis,            See 227 F.3d at 156; see also United
868 F.2d 1357, 1360 (3d Cir. 1989)).               States v. Peterson, 225 F.3d 1167, 1170
Accord, e.g., United States v. Lawlor,             n.2 (10th Cir. 2000) (collecting cases on
168 F.3d 633, 636 (2d Cir. 1999); United           either side of the circuit split).
States v. Courtois, 131 F.3d 937, 938 &                   4
                                                                  We note, parenthetically,
n.2 (10th Cir. 1997). 3
                                                   that the United States and the sentencing
                                                   judge were on notice from Rivera’s
                                                   objections, filed before the sentencing
       3
              As we observed in                    hearing, that Rivera viewed the adoption
Queensborough, a number of other courts            of the probation officer’s recommended
of appeals have reviewed claims that the           departure from the plea agreement’s
government breached a plea bargain not             stipulated 35 Offense Level (or an
raised before the district court under a           allocution or sentence adopting that
clearly erroneous or plain error standard.         recommendation) as “repugnant to [the]

                                               5
novo.5                                           Nolan-Cooper, 155 F.3d 221, 236 (3d
                                                 Cir. 1998). Third, the United States has
        Well-established, additional             an obligation to “‘adhere strictly to the
principles confirm the propriety of de           terms of the bargain it strikes with
novo review of Rivera’s claim. First,            defendants.’” Queensborough, 227 F.3d
“[b]reach of a plea agreement by a               at 156 (quoting Moschahlaidis, 868 F.2d
prosecutor [] strikes at public confidence       at 1361). “Because the defendant, by
in the fair administration of justice and,       entering into the plea, surrenders a
in turn, the integrity of our criminal           number of h[is] constitutional rights,
justice system in which a vast number of         ‘courts are compelled to scrutinize
cases are resolved by plea agreement.”           closely the promise made by the
Dunn, 247 F.3d at 463. Second, because           government in order to determine
they relieve the government of the need          whether it has been performed.’”
to prepare and conduct a trial, “[p]lea          Nolan-Cooper, 155 F.3d at 236 (quoting
agreements, though arising in a criminal         United States v. Hayes, 946 F.2d 230,
context, are analyzed under contract law         233 (3d Cir. 1991)). Fourth, in
standards.” United States v.                     determining whether the plea agreement
                                                 has been breached, we must determine
                                                 “whether the government’s conduct is
plea agreement.” Thus the judge must             inconsistent with what was reasonably
have known, or is chargeable with                understood by the defendant when
knowledge, that Rivera thought that a 39         entering the plea of guilty.” United
Offense Level was contrary to the plea           States v. Badaracco, 954 F.2d 928, 939
agreement. The availability of de novo           (3d Cir. 1992) (internal quotation marks
review on appeal regardless of whether           omitted). Finally, “[i]n view of the
Rivera formally objected to the                  government’s tremendous bargaining
government’s advocacy makes it                   power, we will strictly construe the text
unnecessary for us to pursue the question        against it” as the drafter of plea
of whether this indirect notice entitles         agreements to the extent the agreement
Rivera to de novo review on independent          is ambiguous. United States v. Baird,
grounds.                                         218 F.3d 221, 229 (3d Cir. 2000).
         5                                       Accordingly, the United States may not
              According to the
                                                 rely upon a ‘rigidly literal’ approach to
government, extending de novo review
                                                 the construction of the terms of the plea
“to areas outside the breach context
                                                 agreement.” Nolan-Cooper, 155 F.3d at
would eviscerate the contemporaneous
                                                 236 (citing Moschahlaidis, 868 F.2d at
objection requirement.” Aple’s Br. at 36.
                                                 1361).
However, our statement of the applicable
standard of review in Queensborough
was limited to the plea bargain context
and the important concerns it implicates.

                                             6
B.     Merits of Rivera’s Claim for                       The government advances five
       Breach of Plea Bargain                     (closely related) arguments in favor of
                                                  the district court’s interpretation of the
        Rivera’s argument that the                plea agreement, none of which we find
government breached the plea agreement            persuasive. The government’s most
is straightforward and persuasive. The            forceful argument is that the provision in
plea agreement stated: “In accordance             the plea agreement – that “except as
with the above, the applicable guidelines         otherwise provided in this agreement,
total offense level is 35.” 6 The statement       [the United States] reserves its right to
by the United States’ attorney that “we           take any position with respect to the
stand by the probation officer’s                  appropriate sentence to be imposed on
conclusions,” App. at 29(a) – which               Isaac [Rivera] by the sentencing judge” –
included the recommendation that the              permitted the government to advocate a
Offense Level should be 39 – was                  role enhancement. However, this
inconsistent with the stipulation entered         argument, based on the broadly worded
into by the United States that the                exception, runs counter to, and is
applicable Offense Level would be 35.             therefore trumped by, the specific
By, in effect, endorsing the Probation            stipulation in the agreement. See Corbin
Office’s recommendation of an Offense             on Contracts § 24.23 (revised ed. 1998)
Level of 39, the government breached its          (“If the apparent consistency is between
agreement that the stipulated applicable          a clause that is general and broadly
Offense Level would be 35.7                       inclusive in nature and one that is more
                                                  limited and specific in its coverage, the
       6
                                                  more specific should . . . be held to
               Given this language, it is         prevail over the more general term”); see
difficult to understand how the district          also Restatement (Second) of Contracts §
court arrived at the conclusion that there        203. Because the Offense Level was
may have been a “silent agreement that            specifically stipulated to, whereas the
the proper Total Offense level is 35.”            government’s right to advocate a role
App. at 25(a) (emphasis supplied).
       7
               The possibility that the
district court might have adopted the             doctrine that the government must adhere
probation officer’s findings and                  to its bargain in the plea agreement is so
recommendations even had the                      fundamental that even though the
government not urged their adoption is            government’s breach is inadvertent and
not relevant to the question of breach.           the breach probably did not influence the
To be entitled to remand, Rivera need             judge in the sentence imposed, due
only show that the United States                  process and equity require that the
breached its agreement. See                       sentence be vacated.”) (internal
Nolan-Cooper, 155 F.3d at 236 (“the               quotations omitted).

                                              7
enhancement was not, the government’s              Level at 16 or higher).
endorsement of an enhancement that
would raise the Offense Level above the                    Third, and relatedly, the
stipulated level contravened the plea              government asserts that the position of
agreement. Moreover, to the extent there           paragraph 5 in Schedule A, coming
is ambiguity caused by the “little bit of          immediately after the paragraphs which
poor draftsmanship” conceded by the                established the components of the
prosecutor, we must construe the                   calculation set forth in that paragraph,
agreement against the government as                “suggests that ¶ 5 was intended to
drafter. See Baird, 218 F.3d at 229.8              explain and justify those . . . provisions,
                                                   rather than to bind a Total Offense Level
        Second, the government argues              [of] 35 for all purposes.” Aple’s Br. at
that an interpretation that binds it to the        40 (emphasis supplied). We agree, as
stipulation in Paragraph 5 renders                 mentioned, that the “Stipulations”
“superfluous” the language in Paragraph            section’s function was, in part, to explain
5 that the stipulation to the Offense Level        the calculation of the applicable Offense
being 35 was “in accordance with the               Level. However, this does not make the
above.” Aple’s Br. at 40. Nor is this              stipulation non-binding. To the extent
argument persuasive. The foregoing                 the United States, as the drafting party,
language may be fairly construed as                desired to qualify the stipulation, it could
having independent, non-“superfluous”              have included such language. But it did
meaning: it explains the steps by which            not. And, again, to the extent that this
the stipulation reduced the Offense Level          provision is ambiguous – and it is at least
from 38 to 35 (two-level reduction for             ambiguous – we construe the provision
acceptance of responsibility; one level            as effecting a binding obligation on the
reduction if the court set the Offense             government. Cf. Baird, 218 F.3d at 229.

                                                           Next, argues the government, the
       8                                           district court’s construction of the plea
               Perhaps recognizing that
                                                   agreement should be upheld because
the provision at issue here created at least
                                                   “there is no controlling judicial authority
ambiguity on the question of the
                                                   . . . which has held, even at this time, that
government’s ability to, consistent with
                                                   language similar to that in this plea
the plea agreement, advocate for
                                                   agreement forbade the government from
enhancements not specified in the
                                                   advocating [] a role enhancement.”
agreement, the government concedes that
                                                   Aple’s Br. at 39. We reject this
“[t]he United States Attorney’s Office
                                                   argument. That the construction of this
has subsequently re-drafted its form
                                                   plea agreement’s stipulation language, or
cooperating plea agreement to omit any
                                                   language similar to it, has not apparently
stipulation regarding the Total Offense
                                                   been analyzed in a published opinion is
Level.” Aple’s Br. at 26 n.8.

                                               8
no bar to our analysis of the agreement.          enhancement. See App. at 131(a).
Significantly, the government identifies
no authority, controlling or otherwise,           C.     Remedy
that has sanctioned role advocacy where
the plea agreement was silent regarding                   The final issue concerns what
role enhancement and affirmatively                remedy is appropriate. “When the
stipulated a particular Offense Level.            government breaches a plea agreement,
                                                  the general rule is to remand the case to
        Finally, the government urges us          the district court for a determination
to draw an inference adverse to Rivera            whether to grant specific performance or
from his failure to object before the             to allow withdrawal of the plea.”
district court to the statement in the            Nolan-Cooper, 155 F.3d at 241. “It is
government’s letter brief concerning an           also the rule in this circuit that if specific
enhancement for role. The government              performance is the applicable remedy,
cites language from a recent opinion by           the defendant must be re-sentenced by a
a sister circuit court that the appellant’s       different district judge than the one who
“failure to object at sentencing [that the        presided over the now-vacated original
government breached the plea                      sentence.” Id.9 Consistent with this
agreement] is but further evidence that           Circuit’s practice, the parties agree that if
his expectations of the government were           we find, as we have, a breach of the plea
satisfied.” United States v. Werner, 317          agreement, the case should be remanded
F.3d 1168, 1170 (10th Cir. 2003).                 for resentencing before a different judge.
However, we are reluctant to draw any             See Aplt’s Br. at 48; Aple’s Br. at 50
such inference from silence without               n.20; Nolan-Cooper, 155 F.3d at 241 (in
more. Further, the government’s                   remanding for reassignment and
argument is not supported by the record.          resentencing, explaining that “‘[s]pecific
Far from being satisfied, Rivera firmly           performance is feasible and is a lesser
objected to the probation officer’s               burden on the government and
recommendation of an Offense Level of             defendant’”) (quoting United States v.
39 as being “repugnant to the                     Kurkuler, 918 F.2d 295, 302 (1st Cir.
defendant’s plea agreement.” Although             1990)). Accordingly, we will vacate the
not a challenge to the government’s               sentence imposed and remand the case to
advocacy of a role enhancement, this              the district court for resentencing before
objection, filed in the district court
subsequent to the execution of the plea
agreement, but over three months before                  9
                                                                 By directing resentencing
sentencing, suggests quite clearly that
                                                  by a different District Judge, we do not
Rivera did not accept the theory that the
                                                  suggest that the original District Judge
plea agreement authorized the
                                                  could not resentence appropriately. We
government to advocate for a role
                                                  are merely following our prior opinions.

                                              9
a different judge.

                     III.

        “It is very well to say that those
who deal with the Government should
turn square corners. But there is no
reason why the square corners should
constitute a one-way street.” Federal
Crop Ins. Corp. v. Merrill, 332 U.S. 380,
387-88 (1947) (Jackson, J., dissenting).
For the reasons set forth above, we hold
that the United States breached the plea
agreement, VACATE the sentence, and
REMAND to the district court for
reassignment to a different judge and
resentencing.




                                             10
