
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2083                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 WALTER F. CONNOLLY,                                    a/k/a "SNAKE",                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Jean-Claude  Sakellarios   with  whom   David  I.   Bailinson  and            ________________________                _____________________        Sakellarios & Associates were on brief for appellant.        ________________________            Margaret  D.  McGaughey, Assistant  United  States  Attorney, with            _______________________        whom Jay  P.  McCloskey,  United  States  Attorney,  and  Jonathan  R.             __________________                                   ____________        Chapman,  Assistant  United States  Attorney,  were on  brief  for the        _______        United States.                                 ____________________                                    April 4, 1995                                 ____________________                 BOUDIN, Circuit Judge.  On December  21, 1993, Walter F.                         _____________            Connolly  pleaded  guilty  to  two  counts  of  a  four-count            indictment.   The  indictment related  to the  1992 entry  by            Connolly and  others into  a  home in  Cornish, Maine,  where            Connolly  and his  confederates  believed they  would find  a            cache  of marijuana  to steal.   Based  on a  plea agreement,            Connolly pled guilty  to one count  of conspiring to  possess            marijuana with intent to distribute,  21 U.S.C.    841,  846,            and one count of carrying a firearm during and in relation to            a drug trafficking crime, 18 U.S.C.    924(c).                 The presentence report dated February 22, 1994, proposed            that  the amount of drugs attributed to the conspiracy be set            at 145.1 kilograms (just under 320 pounds); the base  offense            level is 26 for 100 to  400 kilograms of marijuana.  U.S.S.G.               2D1.1(c)(7).     The  report   recommended  a   four-level            enhancement  because  Connolly  was  a  leader or  organizer,            U.S.S.G.      3B1.1(a),  and  a   three-level  reduction  for            acceptance of responsibility, U.S.S.G.   3E1.1.  Connolly had            only one criminal history  point, based on a  Florida assault            conviction,  but also  19  other charges  or convictions  not            counted because of age or other circumstances.                 The  government  moved  for  an   upward  departure  for            uncounted criminal  history.   U.S.S.G.   4A1.2.   Connolly's            counsel countered the government's  motion by saying that the            earlier prosecutor  who negotiated the plea  had promised not                                         -2-                                         -2-            to  move  for an  upward departure.   Connolly  filed various            objections to  the presentence  report, moved for  a downward            departure  based  on diminished  capacity,  and  sought as  a            witness the  homeowner whose  house  had been  invaded.   The            district  court found  that  the  homeowner's  testimony  was            irrelevant because no marijuana had been found and  the issue            was what Connolly had believed would be found.                   After a  delay to determine what  the earlier prosecutor            had said, the district court sentenced Connolly on October 3,            1994.    On  the  issue  of  drug  quantity,  the  government            presented  testimony from an investigator who had interviewed            other cooperating defendants; according to the investigator's            reports  of his  interviews, the  defendants had  expected to            find  at least  eight  40-pound bags  of marijuana,  although            higher figures  were also  reported.  Connolly  testified and            denied  expecting that any marijuana  would be found; he said            that  he had expected  the drugs to  be gone and  that he had            participated only in the hope of finding money.                 The  government  continued  to   press  for  an   upward            departure based  on uncounted criminal history,  arguing that            no promise had  been made  by the earlier  prosecutor not  to            move for an upward  departure.  Defense counsel who  had been            involved in  the plea negotiations reported  that the earlier            prosecutor had  said, "you're lucky  we're not asking  for an            upward  departure," and  then  repeated, when  a protest  was                                         -3-                                         -3-            made,  "we're not going to  do that."   Counsel also reported            that   the  earlier  prosecutor   had  also   made  guideline            computations that showed no such departure.                 The district court then found that the relevant quantity            of marijuana was 145.1  kilograms, reflecting the amount that            the  conspirators  had expected  to  steal;  that the  upward            adjustment of four  levels for leadership, and a downward one            of three  levels for acceptance of  responsibility, were both            proper; and  that a downward departure sought by Connolly for            substance  abuse  was not  warranted.   This  resulted  in an            adjusted offense level of 27 for count I.                 As  to  criminal  history,  the  court  found  that  the            government had not promised to refrain from seeking an upward            departure.  The  court also said that it "would  in any event            have contemplated  departing upward .  . . if  the government            had not so  requested."  The court found that Connolly had an            extensive criminal history reflecting "a lifelong pattern  of            criminality."    The  court  also found  that  a  17-year-old            burglary  conviction, although  remote  in  time,  should  be            counted  under U.S.S.G.    4A1.2  because  it was  similar in            nature to the crime  of conviction.  This added  three points            to Connolly's criminal history, placing him in category III.                 The  resulting guideline range for count I was 87 to 108            months.    The  court  imposed  a  sentence  of  100  months,            deducting  time  already  spent  in pretrial  custody.    The                                         -4-                                         -4-            statutory  minimum  sentence  of  60  months,  to  be  served            consecutively to the  count I sentence, was imposed  on count            II.  18  U.S.C.   924(c).  Connolly has  now appealed to this            court.                   Connolly's first  challenge is  to the district  court's            upward departure based on criminal history.  The first of two            separate  arguments is  that the  government's motion  for an            upward departure was  a breach  of the plea  agreement or  at            least the earlier prosecutor's promise that no such departure            would  be sought.   We  assume arguendo  the accuracy  of the                                           ________            defense's  description  of  what  the  prosecutor  said;  two            lawyers so testified and the government did not squarely deny            it.   Still,  it is difficult  to regard that  statement as a            part of the plea bargain because  of the language of the plea            agreement itself.                 The   agreement  explicitly   sets  forth   the  various            obligations of  the parties, specifies  that the government's            commitment  is to  drop  two  other  counts,  and  says  that            "Defendant  understands that  there are  no further  or other            promises or agreements, either express or implied, other than            those  contained in this Agreement and that none will be made            except  in  writing and  signed  by all  parties."   Further,            neither Connolly nor his counsel  referred to an oral promise            by the government not to move  to depart when, at the Rule 11                                         -5-                                         -5-            hearing,  the  district  court  inquired  whether  any  other            promises had been made.                 What we have, therefore,  is a prosecutor's oral comment            that might or might not be taken as a promise.  But, if taken            as a promise,  it was not included in a later filed agreement            that  purported to be a complete  integration of all promises            made by the government.  Reading the document in full, it  is            hard to  know what  more a  prosecutor could  do to write  an            agreement that negated promises other than those set forth in            the document.   Further, the defense  thereafter confirmed in            open court that no  unwritten promises were part of  the plea            bargain.                 Absent special circumstances, a defendant--quite as much            as the government--is bound by  a plea agreement that recites            that it is a complete statement of the  parties' commitments.            We have said  that there  may be exceptions  to this  general            rule in unusual cases,  Bemis v. United States, 30  F.3d 220,                                    _____    _____________            222 (1st  Cir. 1994),  but Connolly  has  pointed to  nothing            unusual in this case.  The earlier oral representation is not            offered  to  explain  but  rather  to  contradict  the  later            writing.   Nor  is  there any  basis  here for  charging  the            government with deliberate misconduct.                 In  some  cases,  earlier  oral  discussions   with  the            prosecutor may be perfectly legitimate evidence to  interpret            or clarify later  written statements.   This appears to  have                                         -6-                                         -6-            been  the case  in  In re  Arnett, 804  F.2d 1200  (11th Cir.                                _____________            1986),  cited to us by  Connolly.  In  Arnett, the prosecutor                                                   ______            told the defendant orally that the government had no interest            in  forfeiting  his  farm.    The  resulting  plea  agreement            provided  for the defendant to forfeit $3,000 found on him at            the time of  his arrest.   The Eleventh  Circuit held that  a            later  effort by  the government  to forfeit  the farm  was a            breach of the bargain.                 The court  in Arnett  reasoned that the  specific $3,000                               ______            forfeiture provision in the agreement gave the defendant some            basis in the  document for  thinking that this  was the  only            forfeiture to be sought, at least when the document was taken            in  the context  of  the earlier  discussion.   If  the  plea            agreement were read  as the defendant claimed  to read it--to            mean  that  forfeiture was  limited  to  $3,000--then defense                                        _______            counsel  arguably  had  reason  to  think  that  no  separate            reference to the farm was required in  the document or in the            Rule 11 colloquy.                 In this  case, we  do not  see how  any language in  the            written  agreement  can  be  construed,  or  even  reasonably            misconstrued,  as a promise by the government not to move for            a  departure.   The  agreement did  not  commit anyone  as to            sentencing recommendations; indeed, it  specifically provided            that  each side  was  free to  petition for  an "appropriate"            sentence.   The prosecutor's sample guideline calculation was                                         -7-                                         -7-            not  a   part  of   the  agreement,  and   such  illustrative            calculations  appear to be commonplace.  In sum, it would not            be reasonable to read the agreement to establish, or the Rule            11 colloquy to preserve,  a promise by the government  not to            move for a departure.                 It  is worth adding that in this case, unlike Arnett, we                                                               ______            do  not have  an apparent  threat of  unfairness.   While the            forfeiture  in Arnett was  ultimately in  the control  of the                           ______            prosecutor, the  departure decision in this case lay with the            district court.  The  district judge said that he  would have            considered an upward departure based on criminal history even            if the government had  never raised the subject.   The nature            of  Connolly's record,  yet to  be recounted,  amply explains            this  sentiment.   Further, the  presentence report  proposed            that the district court consider such a departure.                 Under ordinary rules these facts might also suggest that            if  the government did  make and  break an  explicit promise,            that breach could still  be deemed harmless.  The  government            urges this as an alternative ground  for affirmance, but does            not try to square  its position with Santobello v.  New York,                                                 __________     ________            404  U.S. 257 (1971), which  appears to remain  the law.  See                                                                      ___            United States v. Canada,  960 F.2d 263, 271 (1st  Cir. 1992).            _____________    ______            Compare Kingsley  v. United  States, 968  F.2d 109,  115 (1st            _______ ________     ______________            Cir. 1992).  We leave  this issue for another day  and decide                                         -8-                                         -8-            this case on the ground that the government did not break any            promise to which it was committed by the final agreement.                 In a  related argument  Connolly says that  the district            court erred  on the  merits  in departing  based on  criminal            history.   Connolly's record of criminal conduct, convictions            and  pending charges  was  lengthy.   Apart from  the Florida            assault   conviction  that  represented  his  first  criminal            history  point, Connolly  had been  convicted for  car theft,            malicious   damage,   larceny,  multiple   assaults,  weapons            offenses and various drug offenses, in addition to other less            serious charges.   For  various  reasons--such as  age--these            convictions  did not  automatically  translate into  criminal            history points.     The guidelines provide that  the district            court   may  depart  upward   wherever  reliable  information            indicates that  "the criminal history category  [in which the            defendant  is initially placed]  does not  adequately reflect            the seriousness  of the defendant's past  criminal conduct or            the  likelihood" of future crime.   U.S.S.G.    4A1.3.  Here,            the district court followed  the guidelines' methodology  for            departures  by  making  an   adjustment  in  the  defendant's            criminal  history category  and then  applying the  guideline            range that corresponded to the new  category.  Id.  The court                                                           ___            determined the  new  criminal history  category  by  awarding            points for a prior armed burglary conviction that  fell about                                         -9-                                         -9-            two  years  beyond  the  15-year  cut-off   period.    Id.                                                                      ___            4A1.2(e)(1).                 In this court, Connolly objects  to the departure on the            ground that the prior conviction was a single incident,  long            in the past, that did not closely resemble the present crime.            But  the district court did not make the adjustment solely on            account  of  the single  prior  conviction but  because  of a            substantial  criminal  career   which,  after  a  period   of            reasonably good behavior, Connolly gave evidence of resuming.            The  17-year-old conviction, bearing some general resemblance            in  type to  the  current  offense,  was  used  simply  as  a            benchmark to measure the departure.                 The district court's  judgment as to  the need for,  and            degree of,  departure based on uncounted  criminal history is            subject to substantial deference  on judicial review.  United                                                                   ______            States v.  Mottram, 34  F.3d 1065 (1st  Cir. 1994).   We have            ______     _______            already noted the defendant's  record and the defendant's two            recent crimes--the recent Florida  assault and the armed drug            offense in this case.  It is unnecessary to embellish matters            by describing in more detail the very dangerous home invasion            in this  case, which  nearly resulted  in several  deaths, or            Connolly's  prior motorcycle-gang affiliations and their role            in this case.                 Connolly's  remaining arguments  relate to  the district            court's  findings as to the  quantity of drugs and Connolly's                                         -10-                                         -10-            leadership role.  Connolly says that these findings rested on            unreliable  hearsay, thus violating  both the  guidelines and            the Sixth Amendment.  He also says that the evidence does not            justify  the findings.    Reliable  hearsay  can be  used  at                                      ________            sentencing, United States v.  Zuleta-Alvarez, 922 F.2d 33, 36                        _____________     ______________            (1990),  cert.  denied,  500  U.S. 927  (1991),  and  whether                     _____________            reliable evidence  supported the  findings here is  tested on            appeal under the "clear error" standard.  Id. at 36-37.                                                      ___                 Since no drugs were  present in the house, the  quantity            attributable  to  Connolly  depended   on  what  he  and  his            confederates  expected to find.   United States  v. Piper, 35                                              _____________     _____            F.3d  611, 615 (1st Cir. 1994).   The views of Connolly's co-            defendants  were assuredly  hearsay,  being  reported in  the            presentence  report  and  by  an  investigating  officer  who            testified.  But  the co-defendants were generally  consistent            in fixing 320 pounds as about the least that Connolly and the            others  expected to find.  The district court was not obliged            to  credit Connolly's own statement that he did not expect to            find any drugs at all.  United States v. Brewster,  1 F.3d 51                                    _____________    ________            (1st Cir. 1993).                 As  for  "leadership,"  Connolly  did  not  concoct  the            offense  but,  at the  behest  of the  original  plotters, he            recruited four  other men into  the venture, claimed  a large            share of the expected profits, and negotiated terms  with the            original plotters.   Other co-defendants pointed  to Connolly                                         -11-                                         -11-            as  giving  orders  to  others  in the  actual  planning  and            execution of the  plan.  Connolly could permissibly  be found            to be a leader or organizer, U.S.S.G.   3B1.1(a).  Again, the            district court was not  required to accept Connolly's denials            or those  of a  close friend,  who gave  rather insubstantial            testimony.                 Affirmed.                 _________                                         -12-                                         -12-
