                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-2-1997

USA v. Gilchrist
Precedential or Non-Precedential:

Docket
97-7224




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Recommended Citation
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Filed December 2, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-7224

UNITED STATES OF AMERICA

v.

WILLIAM GILCHRIST,
Appellant

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Crim. No. 96-CR-0094)

Argued: July 25, 1997

Before: BECKER, MANSMANN, Circuit Judges, and

HOEVELER, Senior District Judge.*

(Filed December 2, 1997)

       MOREY M. MYERS, ESQUIRE
       DANIEL T. BRIER, ESQUIRE
        (ARGUED)
       Myers, Brief & Kelly, L.L.P.
       108 N. Washington Avenue
       Scranton, PA 18503

       THOMAS J. HANLON, ESQUIRE
       416 Jefferson Avenue
       Scranton, PA 18510

       Attorneys for Appellant
_________________________________________________________________

*Honorable William M. Hoeveler, Senior United States District Judge for
the Southern District of Florida, sitting by designation.




       DAVID M. MARASCH, ESQUIRE
       United States Attorney
       LORNA N. GRAHAM, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       309 Federal Building
       Scranton, PA 18501
       Attorneys for Appellee

OPINION OF THE COURT

HOEVELER, Senior District Judge,

William Gilchrist appeals from a final judgment of
conviction and sentence requesting that we vacate his
sentence and permit him to withdraw the guilty plea he
entered pursuant to a Rule 11(e)(1)(C) binding plea
agreement. We find that the imposition of the additional
condition of supervised release breached the plea
agreement, but we will remand for the district court to
determine whether to impose the sentence of the plea
agreement or to permit Gilchrist to withdraw his plea.

I.

Appellant was charged with engaging in commercial
bribery in violation of the Travel Act and conspiring to
violate the Travel Act. Gilchrist, who operated a trucking
company, was charged with paying kickbacks to Donald
Finke, the transportation manager of Welch Foods, in order
to continue doing business with Welch.

Following discussions with the government, Gilchrist
agreed to plead guilty to a lesser charge, misprision of a
felony, 18 U.S.C. S 4. He negotiated and executed a binding
plea agreement with the Government pursuant to Rule
11(e)(1)(C) of the Federal Rules of Criminal Procedure.
According to this agreement Mr. Gilchrist was to be
sentenced to a nine month term of incarceration and a one
month period of home confinement. The plea agreement
also called for the imposition of a $10,000 fine and a $50

                                2



assessment. The nine month prison term was greater than
that provided for in the Guidelines for a violation of 18
U.S.C. S 4 (the applicable range for this offense is 0-6
months). Appellant agreed to this upward departure from
the Guidelines in exchange for the government's dismissal
of its two count indictment against him. Under the
indictment the Appellant faced a possible penalty of 10
years incarceration and $500,000 in fines, as well as a term
of supervised release and assessments, if he were convicted
of both offenses. Appellant's Appendix at 17a. The parties
further agreed that, if the district court rejected the
stipulated sentence or imposed a more severe penalty, Mr.
Gilchrist would be entitled to withdraw from the Plea
Agreement and plead anew.
The district court accepted Mr. Gilchrist's guilty plea on
December 11, 1996. Sentencing was scheduled for April
pending completion of his pre-sentence investigation report.
At the April 22, 1997 sentencing, the district court imposed
a sentence of 9 months incarceration, a $10,000fine, a $50
assessment and a one year period of supervised release,
including one month home confinement. Mr. Gilchrist did
not object to the court's sentencing at the hearing.

On April 30, 1997 Mr. Gilchrist filed a motion in the
district court to correct sentence pursuant to Fed.R.Crim.P.
35(c). Supplemental Appendix, at 10-26. In its response the
Government agreed that the court's sentence was not in
line with the plea agreement and suggested that the period
of supervised release be limited to one month. Appellant's
Appendix at 39a. However, the district court did not rule on
the motion within the seven day period following the
imposition of Gilchrist's sentence, and thus no longer had
authority to correct an excessive sentence pursuant to
Fed.R.Crim.P. 35(c). On May 1, 1997, Gilchrist filed a
Notice of Appeal. He moved for expedited disposition on his
appeal on May 14, 1997. This motion was granted and his
sentence imposed by the district court was stayed.

In his appeal Gilchrist argues that the sentence imposed
by the district court is more severe than that stipulated to
by the parties in the plea agreement. He further asserts
that the district court's imposition of such a sentence
resulted in the breach of the plea agreement. Therefore,

                                3



Gilchrist contends that the case should be remanded to the
district court to afford him the opportunity to withdraw his
guilty plea and plead anew pursuant to the remedial
provision in the plea agreement.

In response the government argues that because home
detention may only be imposed as a special condition of
supervised release, both parties reasonably expected the
district court to impose a period of supervised release
pursuant to the plea agreement which provided for one
month home detention. Moreover, the government asserts
that, assuming the court's imposition of supervised release
resulted in a breach of the plea agreement, the case should
be remanded to the district court in order to afford it the
opportunity to correct any error and fashion an appropriate
remedy.

II.
The plea agreement at issue was executed pursuant to
Fed.R.Crim.P. 11(e)(1)(C) which authorizes the government
and the defendant to "agree that a specific sentence is the
appropriate disposition of the case." Such a plea agreement
may be distinguished from one executed pursuant to
Fed.R.Crim.P. 11(e)(1)(B) where the government makes a
recommendation, or agrees not to oppose the defendant's
request, for a particular sentence, with the understanding
that such recommendation or request shall not be binding
on the court. At the time the plea is offered the court may
accept or reject an 11(e)(1)(C) plea agreement, or may defer
its decision until there has been an opportunity to consider
the presentence investigation report. Fed.R.Crim.P. 11(e)(2).
If the plea agreement is rejected, the court must afford the
defendant an opportunity to withdraw his guilty plea.
Fed.R.Crim.P. 11(e)(4); U.S.S.G. S 6B1.3. If the plea
agreement is executed pursuant to Fed.R.Crim.P.
11(e)(1)(B), the court shall advise the defendant that if the
court does not accept the recommendation the defendant
nevertheless has no right to withdraw his plea.
Fed.R.Crim.P. 11(e)(2). Under the specific provisions of the
plea agreement in the instant case, both parties were
afforded an opportunity to withdraw from the agreement.
The agreement states:

                                4



       If at sentencing the court fails to accept the
       stipulations of the parties, or imposes a sentence
       greater than that agreed to by the parties then the
       parties have the right to withdraw from this agreement
       and withdraw any guilty plea entered pursuant to this
       agreement.

Plea Agreement, P 5 (emphasis added).

III.

The first question with which this Court is faced is
whether or not the sentence imposed by the district court
is "greater than that agreed to by the parties." There can be
little argument as to this point. The plea agreement clearly
stated that the parties agreed that the appellant would be
sentenced to a term of nine (9) months incarceration, 1
month home detention, and a $10,000 fine. Plea agreement
P 5. At sentencing the district court imposed a sentence of
nine months incarceration, twelve months of supervised
release, one month of home detention and a $10,000 fine.1
Regardless of the intentions of the district court, the
sentence imposed was clearly greater than that set out in
the plea agreement. It is well settled that supervised release
constitutes punishment. United States v. Dozier, 1997 WL
401318 (3d Cir. (N.J.)) 8. In Dozier this Court explained:

       Supervised release is punishment; it is a deprivation of
       some portion of one's liberty imposed as a punitive
       measure for a bad act. A defendant on supervised
       release is subject to various terms and conditions
       which restrict his freedom and make him vulnerable to
_________________________________________________________________

1. Presumably, the district court believed that it was carrying out the
terms of the plea agreement when it imposed its sentence. During the
sentencing hearing the court initially recited the sentence as it appeared
in the plea agreement. However, at the time the sentence was imposed
the court included the twelve month period of supervised release. That
the court believed it was following the plea agreement is further
evidenced by Appellant's Judgment and Commitment. While the court
included the necessary information to ensure the imposition of one year
of supervised release in the "supervised release" section of the document,
under "Additional Reasons for Departure from the Guideline Range" it
listed the sentence exactly as it appeared in the plea agreement.

                                5



       further punishment should he violate them. Such
       subsequent punishment may again include more
       imprisonment and more supervised release.

Id. Thus, on its face, a sentence including a twelve month
period of supervised release is greater than that agreed to
by the parties.

We next must determine whether or not the imposition of
a sentence including a twelve month period of supervised
release resulted in a breach of the plea agreement. Plea
agreements are contractual and therefore are to be
analyzed under contract law standards. United States v.
Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989). "In
determining whether a plea agreement has been broken,
courts look to `what was reasonably understood by[the
defendant] when he entered his plea of guilty.' " United
States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)
(quoting United States v. Crusco, 536 F.2d 21, 27 (3d Cir.
1976). The government asserts that a period of home
detention may only be imposed as a special condition of
either supervised release or probation. See U.S.S.G.
S 5F1.2. Therefore, the government maintains that when
Appellant entered into a plea agreement providing for one
month home detention, the imposition of a period of
supervised release was, or should have been, within his
reasonable expectations.

Assuming, without deciding, that the government's
contention that home detention may not be imposed
without a corresponding period of supervised release or
probation is correct, we still find that the twelve month
period of supervised release imposed by the district court
was not within the reasonable expectations of the
appellant. The government asserts that U.S.S.G. S 5D1.2
(a)(3) mandates the imposition of a one-year period of
supervised release for a Class E felony such as misprision.2
However, for a term of incarceration lasting less than one
year, such as that in the instant case, the imposition of a
term of supervised release is discretionary. U.S.S.G.
_________________________________________________________________

2. Under U.S.S.G. S 5D1.2(a)(3) if a period of supervised release is
ordered, the length of such term is one year for a defendant convicted of
a Class E felony, such as misprision. (emphasis added).

                                6



S 5D1.1(b). Moreover, Rule 11 limits the discretion afforded
the district court under the Sentencing Guidelines. An
11(e)(1)(C) plea agreement, once accepted, binds the district
court notwithstanding departures from the applicable
guidelines. U.S.S.G. S 6B1.2(c) (authorizing sentencing
court to accept Rule 11(e)(1)(C) plea agreement if agreed
sentence is within applicable guideline range or departs
from applicable guideline range for justifiable reasons).

Furthermore, the record in this case demonstrates that
the imposition of a twelve month period of supervised
release was neither express nor implied. The plea
agreement itself makes no mention of supervised release.
Similarly, the stipulated sentence presented to the district
court at the change of plea hearing was silent as to
supervised release. Finally, the government did not refer to
any period of supervised release in its presentation of the
plea agreement to the court at sentencing. Based on the
record before this court we find that the imposition of a
twelve month period of supervised release was beyond the
reasonable expectations of appellant. Therefore, by
imposing a sentence greater than that to which the parties
agreed, the district court, although perhaps inadvertently,
caused the plea agreement to be breached.

IV.

The second question we must address is whether to
afford appellant the opportunity to withdraw his guilty plea
and replead, or to remand the case to the district court to
allow it the opportunity to fashion an appropriate remedy.
The government is correct in noting that the well-settled
rule in this Circuit is that where a plea agreement has been
breached, the district court, not the defendant, is to decide
in the first instance whether to grant specific performance
of the plea agreement or withdrawal of the guilty plea. See
e.g., United States v. Torres, 926 F.2d 321, 327 (3d Cir.
1991); United States v. Moscahlaidis, 868 F.2d 1357, 1363
(3d Cir. 1989); United States v. Martin, 788 F.2d 184, 188
(3d Cir. 1986); United States v. American Bag & Paper
Corp., 609 F.2d 1066, 1068 (3d Cir. 1979).

In its brief the government places particular emphasis on

                                7



our opinion in American Bag. In that case the defendant
corporation pleaded nolo contendere to a single-count
indictment charging a violation of the Sherman Act, 15
U.S.C. S 1 (1976), pursuant to an 11(e)(1)(B) plea
agreement. The agreement called for the government to
recommend a fine of $500,000 to be paid in annual
installments of $50,000. Id. at 1067. The contract further
provided that "if [the court] should for any reason
determine not to follow the government's recommendation,
the corporation would be afforded the opportunity to
withdraw the plea of nolo contendere." Id. at 1067. While
both parties satisfied their obligations under the agreement,
the district court in addition to imposing the recommended
fine also imposed interest on the unpaid balance at 6% per
annum. Because the plea agreement was silent on the
matter of interest, the defendant appealed the sentence
arguing that the imposition of interest constituted a breach
of the plea agreement, and therefore the corporation was
entitled to withdraw its plea. This Court remanded the
matter to the district court for clarification regarding
whether it had intended to reject the plea agreement or not.3
On remand the district court refused to vacate the sentence
and allow defendant to withdraw its guilty plea, and
instead, vacated the interest portion of the judgment. The
defendant's subsequent appeal to this Court claiming it was
entitled to a withdrawal of the guilty plea despite the fact
that the district court had vacated the interest portion of
the sentence was denied. This Court affirmed the district
court's election to delete the offending portion of its
sentence and rejected defendant's claim of entitlement to
withdrawal of the plea.

Appellant correctly points out that the plea agreement in
American Bag was executed pursuant to 11(e)(1)(B), while
the agreement in the instant case was executed pursuant to
11(e)(1)(C). However, upon closer examination the two
_________________________________________________________________

3. The initial panel in American Bag remanded the case to the district
court to consider Defendant's Motion to Correct which had been filed
after the filing of the notice of appeal, but before the appeal had been
heard. In its original motion, Defendant asked the court to vacate the
interest portion of its judgment, but did not move for withdrawal of its
plea. Upon remand American Bag argued for withdrawal of its plea.

                                8



agreements are very similar, and therefore the American
Bag decision is indeed instructive. While nominally the plea
agreement in American Bag was an 11(e)(1)(B) agreement,
the inclusion of a provision allowing the defendant
corporation the opportunity to withdraw its plea if the court
did not follow the government's recommendation, in effect,
converted the plea contract into an 11(e)(1)(C) agreement.

In essence, the parties in American Bag, as they would
pursuant to an 11(e)(1)(C) plea agreement, presented a
stipulated sentence to the district court: American Bag
would enter a plea of nolo contendere, cooperate fully with
the government, and pay a fine of $500,000 in $50,000
annual installments. The parties further agreed that if the
court did not accept this "stipulated" sentence, American
Bag would be free to withdraw its plea. Thus, the parties
granted to defendant the same ability to withdraw a plea
provided in Rule 11(e)(1)(C) by including a withdrawal
provision in their plea agreement. Moreover, both the
district court and this Court appear to have treated the plea
agreement as if it had been executed pursuant to
11(e)(1)(C). The district court acknowledged the withdrawal
provision contained in the agreement when it stated: " `(If)
the court believes that the recommended sentence is
inadequate, the court will allow the entry of a plea of nolo
contendere to be withdrawn on behalf of American Bag &
Paper Corporation.' " Id. at 1067 (quoting the district court).
Similarly, this Court observing that the record was unclear
as to whether the district court was affirmatively rejecting
the plea agreement, remanded the case for clarification.4 Id.
at 1068. Had this Court ignored the plea withdrawal
_________________________________________________________________

4. It is interesting to note that in the instant case Gilchrist also filed
a
Rule 35(c) motion seeking to correct the sentence imposed by the district
court. Like the defendant in American Bag, Gilchrist did not move to
withdraw his plea in his Rule 35(c) motion, but rather sought an order
conforming his sentence to the provisions of the plea bargain. It is
particularly worth noting that in support of his motion to correct
Gilchrist relies on this Court's opinion in American Bag. See Defendant's
Memorandum of Law in Support of Motion to Correct Sentence Pursuant to
Fed.R.Crim.P. 35(c), Supplemental Appendix, at 24. However, following the
filing of his notice of appeal, Gilchrist moved to withdraw his Rule 35
motion.

                                9



provision and read the agreement in American Bag as a
traditional 11(e)(1)(B) plea agreement, it would have been
under no obligation to remand the case to the district
court. It could have instead interpreted the district court's
imposition of interest as an authorized modification of the
sentence recommended by the government in the plea
agreement.

As noted above the record in the instant case suggests
that it is unclear whether the district court intended to
reject the terms of the plea agreement as proposed by the
parties. In American Bag we concluded that:

       [w]hen, as here, the court does not intend to reject the
       terms of a plea bargain but, nevertheless, imposes a
       sentence allegedly inconsistent with the terms of that
       plea bargain, it appears consistent with the provisions
       of Fed.R.Crim.P. 11(e)(4), to allow the district court, in
       the first instance, the opportunity to correct its own
       error. Thus the district court, upon appropriate motion,
       may choose to conform the sentence to the terms of the
       plea bargain or allow withdrawal of the plea.

In spite of the fact that the plea agreement in the instant
case was executed pursuant to 11(e)(1)(C) as opposed to
11(e)(1)(B), for the reasons stated above, we still find the
reasoning in American Bag applicable.5
_________________________________________________________________

5. Appellant relies on the Sixth Circuit's opinion in United States v.
Mandell, 905 F.2d 970 (6th Cir. 1990). In that case the defendant
entered a plea of guilty pursuant to a plea agreement specifying a precise
range and a stipulation including an agreed upon offense level. Mandell's
plea agreement, like that in the instant case, included a provision
authorizing the defendant to withdraw his plea if the sentencing court
departed from the stipulations of the parties. Mandell, 905 F.2d at 971.
The sentencing court accepted the plea, but upon review of the
presentence report, increased the offense level. The Sixth Circuit held
that the plea agreement had been breached. The court noted that
generally a breached plea agreement was remedied by either specific
performance or by allowing the defendant to withdraw the plea. The
Mandell court concluded that the agreement itself provided for the
remedy of withdrawal of the plea, and therefore under the circumstances
the option of specific performance entitled the defendant to the same
remedy as withdrawal. Id. The court further determined that the

                                10
V.

Upon consideration of the record, we will vacate the
judgment and sentence of the district court. The matter
shall be remanded to the district court to determine
whether the appropriate remedy is to require specific
performance of the agreement or permit the appellant to
withdraw his plea. Unless the court can, and is disposed to,
impose the sentence agreed to by the parties in accordance
with applicable statutes and guidelines, appellant should
be afforded the opportunity to withdraw his plea and plead
anew.
_________________________________________________________________

agreement did not provide Mandell with the right to have his sentence
determined at the stipulated offense level under a theory of specific
performance. Consistent with our opinion in American Bag, we leave the
initial determination of whether Gilchrist is entitled to specific
performance of his plea agreement, and thus the sentence to which he
stipulated, to the district court.

                                11



BECKER, Circuit Judge, concurring dubitante.

I join in the majority opinion insofar as it vacates the
judgment of the district court, but I have problems with its
instructions on remand. The majority orders that the
matter

       be remanded to the district court to determine whether
       the appropriate remedy is to require specific
       performance of the agreement or permit the appellant
       to withdraw his plea. Unless the court can, and is
       disposed to, impose the sentence agreed to by the
       parties in accordance with applicable statutes and
       guidelines, appellant should be afforded the
       opportunity to withdraw his plea and plead anew.

In my view, this discussion does not give the district court
adequate guidance as to what might constitute a proper
sentence within the framework of the plea bargain.

The majority has properly concluded that the sentence of
twelve months supervised release violated the plea
agreement.1 Perhaps the majority has in mind that the
district court on remand might reduce the term of
supervised release to one month conditional on one month
home confinement. While that would be a legal sentence, I
think that it would breach the plea bargain.
The majority's analysis, however, suggests that such a
sentence could be imposed on remand. It reasons that
_________________________________________________________________

1. The district court's decision to include a twelve month term of
supervised release in Gilchrist's sentence is not the non-sequitur that it
appears to be at first glance. Although under U.S.S.G. S 5D1.1(b) the
imposition of a term of supervised release is discretionary where the
term of incarceration is less than one year, under U.S.S.G. S 5D1.2(a)(3)
if a period of supervised release is ordered, the length of such term is
one year for a defendant convicted of a Class E felony. When this is
coupled with the fact that home detention may only be imposed as a
condition of probation or supervised release, see U.S.S.G. S 5F1.2, it
appears entirely possible that the District Court felt that it was
required
to impose a one year term of supervised release in order to effectuate the
plea agreement. In fact, it was not so required since under U.S.S.G.
S 6B1.2, the court may accept an 11(e)(1)(C) plea agreement if it departs
from the guideline range "for justifiable reasons."

                                12



       Plea agreements are contractual and therefore are to be
       analyzed under contract law standards. United States
       v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989).
       "In determining whether a plea agreement has been
       broken, courts look to `what was reasonably
       understood by [the defendant] when he entered his
       plea of guilty.' " United States v. Arnett, 628 F.2d 1162,
       1164 (9th Cir. 1979) (quoting United States v. Crusco,
       536 F.2d 21, 27 (3d Cir. 1976)). The government
       asserts that a period of home detention may only be
       imposed as a special condition of either supervised
       release or probation. See U.S.S.G. S 5F1.2. Therefore,
       the government maintains that when Appellant entered
       into a plea agreement providing for one month home
       detention, the imposition of a period of supervised
       release was, or should have been, within his reasonable
       expectations.

I am unsure that the underlined statement is correct. I
have substantial reservations about importing into a plea
bargain a kind of punishment that the parties did not
appear to contemplate.2 Here neither the government nor
the defense apparently considered the possibility of
supervised release. Perhaps they thought that home
detention could be free-standing. At all events, they did not
mention supervised release in the plea agreement.

Perhaps the parties reasonably should have expected that
home confinement carried with it supervised release. While
contract standards may generally apply, I believe that
courts must be more circumspect in divining the
reasonable expectations of a defendant who enters into a
plea agreement than we might be in the case of a contract
that does not implicate an individual's liberty interest.
Indeed, if courts construed plea agreements narrowly, as I
think they should, the message would be clear that
_________________________________________________________________

2. As the majority correctly points out, it is well settled that
supervised
release constitutes punishment. See Maj op. at 5. For a list of the
recommended conditions of supervised release, which can convert
otherwise legal activities like wandering into an unsavory bar, talking
with felons or other disreputable characters, or drinking too much into
grounds for re-incarceration, see U.S.S.G. S 5B1.4.

                                13



"expectations" such as the one at issue in this case must
appear in the text of the agreement.

I would also be troubled if the majority has in mind that
the district court might sentence Gilchrist to one month
home confinement without supervised release. While the
majority declines to reach this question, I believe that such
a sentence would be illegal. Under U.S.S.G. S 5F1.2 home
detention "may be imposed as a condition of probation or
supervised release". I read this as clearly indicating that
home detention is not a free-standing sentence and thus
that the District Court is without authority to impose it on
Gilchrist as such.3

Notwithstanding these comments, I am not sufficiently
sure that the majority is wrong that I style this opinion a
dissent, which would require me to vote to remand with
directions to vacate the plea of guilty and permit the
defendant to go to trial.4 I therefore concur dubitante.

A True Copy:
Teste:

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

_________________________________________________________________

3. If, of course, the district court were simply to impose the nine month
prison term and the fine and assessment but with no supervised release
and no home confinement, there would be no problem. And, obviously,
there would be no problem if the court permits Gilchrist to withdraw his
plea.
4. It seems clear that Gilchrist believes that the government no longer
can prove a case against him at trial. I presume that a key witness has
"gone south" on the government.

                                14
