                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                                                         JUN 16 1998
                                    PUBLISH
                                                                      PATRICK FISHER
                   UNITED STATES COURT OF APPEALS                               Clerk

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                     No. 97-1094

 FREDERICK BRYE,

       Defendant-Appellant.




                   Appeal from United States District Court
                         for the District of Colorado
                            (D.C. No. 96-CR-59-S)


Nancy Holton, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with her on the brief), Denver, Colorado, for the appellant.

John M. Hutchins, Assistant United States Attorney (Henry L. Solano, United
States Attorney, and Craig F. Wallace, Assistant United States Attorney, with him
on the brief), Denver, Colorado, for the appellee.


Before HENRY, BARRETT, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge.
      Defendant Frederick Brye entered into a plea agreement and pleaded guilty

to being a felon in possession of ammunition, a violation of 18 U.S.C. § 922(g).

He was sentenced to sixty months’ imprisonment and three years’ supervised

release. He appeals his sentence, contending the government breached the plea

agreement and the district court erred in denying a downward departure for pre-

indictment delay. We conclude the government did breach the plea agreement and

remand for resentencing. We dismiss for lack of jurisdiction defendant’s claim

that the court erred in denying a downward departure.

                                         I.

      Defendant and his brother Bond Brye had a heated argument on June 14,

1993, concerning Bond’s relationship with defendant’s girlfriend. Bond

purportedly struck and threatened to kill defendant. Defendant telephoned Fidel

Garner around 8:00 p.m. and asked him to bring “his .45.” He again called

Garner around 10:45 p.m. and told him he needed the gun because Bond had

kicked him, shot at him, threatened to kill him, and chased him with a gun. The

government had a Title III wiretap on Garner’s telephone line, which was

unknown to either Garner or defendant, and intercepted both of the conversations.

Based on this information, the police stopped defendant’s car and found a .45

pistol and two rounds of Winchester Silver Tip ammunition inside the car.

      Sometime later in 1993, defendant was taken into state custody for


                                        -2-
violation of state law where he remained until early 1996. He was not charged in

federal court with being a felon in possession of a firearm until February 14,

1996. Based on the long delay between the time the offense was committed and

the date of the indictment, defendant moved to dismiss the indictment for

excessive pre-indictment delay. The court denied the motion because defendant

could not establish the government intentionally delayed seeking an indictment to

gain a tactical advantage. Immediately before trial began on October 7, 1996,

defendant entered into a plea agreement and pleaded guilty to being a felon in

possession of ammunition.

      Prior to sentencing, defendant filed a motion for downward departure from

the recommended sentencing guidelines because (1) he committed the offense

while under coercion and duress,   1
                                       (2) the government’s pre-indictment delay

prejudiced his defense, and (3) the totality of the circumstances justified a

downward departure. The court ultimately denied defendant’s request for



      1
         There is no question that Bond was an extremely dangerous person.
Defendant argued Bond’s dangerous nature forced defendant to obtain a gun to
protect himself and he committed the offense while under “duress.” Defendant
presented evidence at sentencing that Bond had attempted to strangle their sister
and had shot at their mother during the same time period that Bond had threatened
defendant. The taped conversations between Garner and defendant also clearly
indicated defendant was afraid of Bond. The police observed defendant being
chased by an unidentified black male in the area around defendant’s house and
defendant’s mother’s house on the date of the offense. Bond committed suicide
on September 27, 1993, apparently suffering from mental illness.

                                            -3-
downward departure.

                                               II.

       Defendant argues the government violated the plea agreement because the

prosecutor opposed downward departure during sentencing. “Whether

government conduct has violated a plea agreement is a question of law which we

review de novo.”     United States v. Hawley , 93 F.3d 682, 690 (10th Cir. 1996).

       Where the government obtains a guilty plea predicated in any significant

degree on a promise or agreement of the prosecuting attorney, such promise must

be fulfilled to maintain the integrity of the plea.   See Santobello v. New York ,

404 U.S. 257, 262 (1971);     United States v. Hand , 913 F.2d 854, 856 (10th Cir.

1990); see also United States v. Peglera , 33 F.3d 412, 414 (4th Cir. 1994)

(“Because a government that lives up to its commitments is the essence of liberty

under law, the harm generated by allowing the government to forego its plea

bargain obligations is one which cannot be tolerated.”). To determine whether a

breach has, in fact, occurred, we apply a two-step process: (1) we examine the

nature of the government’s promise; and (2) we evaluate this promise in light of

the defendant’s reasonable understanding of the promise at the time the guilty

plea was entered.    United States v. Rockwell Int’l Corp.   , 124 F.3d 1194, 1199

(10th Cir. 1997), cert. denied 118 S. Ct. 1559 (1998).

       We apply general principles of contract law to define the nature of the


                                              -4-
government’s obligations in a plea agreement.      Hawley , 93 F.3d at 692; see Doe

v. United States , 51 F.3d 693, 701 (7th Cir. 1995) (“Plea agreements are

contracts, which means that the first place to look in determining the extent of the

government’s promises under the [] agreement is the language of the agreement

itself.”). Accordingly, we determine the government’s obligations by reviewing

the express language used in the agreement.     See United States v. Courtois , 131

F.3d 937, 939 (10th Cir. 1997) (“We agree with the other circuits that have

considered this issue and have found that whether a plea agreement unequivocally

obligates the government to provide defendant with the opportunity to provide

substantial assistance turns on the specific language of the agreement.”);

Rockwell , 124 F.3d at 1200; United States v. Vargas , 925 F.2d 1260, 1266-67

(10th Cir. 1991); United States v. Easterling , 921 F.2d 1073, 1079 (10th Cir.

1990). We will not allow the government to rely “upon a ‘rigidly literal

construction of the language’ of the agreement” to escape its obligations under

the agreement.   Hand , 913 F.2d at 856 (quoting   United States v. Shorteeth , 887

F.2d 253, 256 (10th Cir. 1989)). As with the interpretation of any contract, we

also apply the maxim that the agreement should be construed against its drafter.

Hawley , 93 F.3d at 690.   2




      2
         It is not entirely clear who drafted the plea agreement here, but at one
point in the sentencing hearing the prosecutor seemed to imply he had authored it.
                                                                        (continued...)

                                          -5-
      With these general principles in mind, we turn to the language in the plea

agreement here. The agreement obligated the government to:

              A. Dismiss, at sentencing, the [i]ndictment . . .;
              B. File no further charges against [defendant] based upon what
      [was known at that time] of his criminal misconduct . . .;
              C. Stipulate, under Fed. R. Crim. P. 11(e)(1)(c), to a sentence
      of no more than sixty (60) months;
              D. Agree that defense counsel may argue for an extraordinary
      departure under Section 5K2.0 et seq ., and the government will defer
      to the Court’s determination of this point.
              E. Consider providing defendant an opportunity to debrief
      regarding his knowledge of drug trafficking activities, . . . and agree
      to file at sentencing a motion under Section 5K1.1 of the U.S.
      Sentencing Guidelines, recommending a downward departure from
      defendant’s resulting guideline range, if, in the government’s sole
      and good faith discretion, defendant has provided “substantial
      assistance” in the investigation of others.

Record I, Doc. 18, at 1-2. Defendant agreed to plead guilty to a one-count

information which charged him with being a felon in possession of ammunition,

in violation of 18 U.S.C. § 922(g).

      Defendant argues the government violated part D of the agreement. The

parties disagree on the meaning of the word “defer” and what departure

determination the government agreed to defer to the court. The government

argues this provision referred only to defendant’s request for downward departure

based on coercion or duress, while defendant argues the government agreed to


      2
       (...continued)
See Record VII at 6-7 (“We drafted an information . . . . I told her we put it in
the plea agreement that she could do that. . . . I indicated in the plea agreement.”)

                                         -6-
defer on all possible bases for downward departure under U.S.S.G. § 5K2.

       The word “defer” means “to refer or submit for determination or decision”

or “to submit or yield through authority, respect, force, awe, [or] propriety.”

Websters Third New International Dictionary 591 (1993). The government adopts

this definition and claims it agreed to submit the question of whether defendant

was eligible for downward departure to the court for determination. Although

this argument seems to comport with the dictionary definition of “defer,” it is

nonsensical when viewed in the context of sentencing proceedings. The

sentencing court already possessed the authority to determine whether defendant

was eligible for downward departure. Therefore, interpreting the plea agreement

as the government urges renders part D superfluous, which is obviously not in

accord with general principles of contract law.     See Restatement (Second) of

Contracts § 203(a) (1979) (“an interpretation which gives a reasonable, lawful,

and effective meaning to all the terms [of an agreement] is preferred to an

interpretation which leaves a part unreasonable, unlawful, or of no effect”);     New

Valley Corp. v. United States , 119 F.3d 1576, 1580 (Fed. Cir. 1997) (“An

interpretation that gives a reasonable meaning to all of [the contract’s] parts is

preferred to one which leaves a portion of the [contract] inoperative, void,

meaningless, or superfluous.”);    see also United States v. Bunner , 134 F.3d 1000,

1006 n.5 (10th Cir.) (“We will not construe a statute in a way that renders words


                                            -7-
or phrases meaningless, redundant, or superfluous.”),        petition for cert. filed   ___

U.S.L.W. ____ (U.S. April 24, 1998) (No. 97-8828).

       Therefore, “defer” must have some additional meaning in the present

context. This additional meaning can, ironically, be gleaned from the

government’s description of its obligations at the sentencing hearing:

       I indicated in the plea agreement that the government would defer to
       the court’s finding on [whether defendant is entitled to a downward
       departure for coercion or duress]. Essentially, we are not going to
       take any particular position. You know, I am not calling any
       witnesses or putting on any exhibits today. I may point out a few
       things. But essentially, it’s [defendant’s] motion. Something [he]
       wanted to do, and we agreed to it as part of the plea agreement. . . .
       The Court will make the ultimate finding.

Record VII at 7. Later, the government stated: “I don’t think [the plea agreement]

precludes me from making comments. I think it precludes me from taking any

particular position.”   Id. at 50.

       As the government correctly noted during sentencing, a plea agreement

requiring the government to “defer” to the court’s determination of an issue does

not require the government to stand mute under all circumstances. Certainly the

government is entitled, perhaps even obligated as an officer of the court, to

correct factual and legal inaccuracies for the court.      See United States v. Svacina ,

137 F.3d 1179, 1185 (10th Cir. 1998) (“The government cannot be penalized for

correctly stating the legal issue to be addressed by th[e] court.”);      United States v.

Jimenez , 928 F.2d 356, 363 (10th Cir. 1991) (government obligated to inform

                                              -8-
sentencing court of relevant, derogatory information about defendant that

prosecutor learned after plea agreement);    Hand , 913 F.2d at 856 (government not

obliged to “stand mute in the face of incorrect or misleading testimony offered

before the trial court”);   United States v. Stemm , 847 F.2d 636, 639 (10th Cir.

1988) (“Disclosure of information as to the nature of the offense and each

defendant’s role is proper and within the Government’s duty to provide, despite a

promise that the Government would make no recommendation as to sentence.”).

However, if the government has agreed to “defer to the court’s determination” of

an issue, its authority to comment during a defendant’s sentencing stops there.

The government cannot oppose the defendant’s motion, in any fashion, after

agreeing to “defer” to the court’s determination on the issue. This means the

government may not call witnesses, present exhibits, or make any legal arguments

in opposition to defendant’s motion. As we explained in      Hawley , the government

breaches an agreement “not to oppose” a motion when it makes statements that

“do more than merely state facts or simply validate [] facts found in the

Presentence Report” and “provide[s] a legal ‘characterization’ of those facts [or]

‘argue[s] the effect’ of those facts to the sentencing judge.” 93 F.3d at 693.

       Although we have determined the government agreed not to oppose

defendant’s motion for downward departure, it is also necessary to determine

whether the government agreed not to challenge downward departure on all


                                            -9-
possible grounds or merely with respect to coercion or duress. The government

argues it only agreed to defer to the court’s determination with respect to coercion

or duress and, therefore, even if it opposed the motion based on pre-indictment

delay and the totality of the circumstances, it did not violate the plea agreement.

Again, we must examine the precise language of the agreement to resolve the

dispute.

       The government agreed not to challenge defendant’s motion for downward

departure pursuant to “Section 5K2.0     et. seq. ” This language seems plain;

however, § 5K2.0 does not set forth a specific basis for departing from the

guidelines. Rather, § 5K2.0 is a policy statement that generally outlines

considerations the sentencer should contemplate when determining whether to

grant a defendant a downward departure under any of the specific rationales listed

in other sections of the subchapter that follow § 5K2.0.    Each of the remaining

sections in the subchapter, §§ 5K2.1-5K2.18, discusses a specific rationale for

departure. Coercion and duress are addressed in § 5K2.12.

       Not only does § 5K2.0 fail to specifically address a particular justification

for departure, the agreement specifies “5K2.0     et. seq. ” Record I, Doc. 18, at 2.

Et Seq. is an abbreviation for “et sequentes” or “et sequentia,” which means “and

the following.” Black’s Law Dictionary 553 (6th ed. 1990). Here, “5K2.0          et.

seq. ” can be reasonably interpreted to include §§ 5K2.0 through 5K2.18.


                                           -10-
Therefore, based on the language in the agreement, we conclude the government

agreed to defer to the court’s determination as to whether defendant deserved an

extraordinary downward departure under     any of § 5K2.'s subsections.    See United

States v. Williams, 102 F.3d 923, 927 (7th Cir. 1996) (“We review the language

of the plea agreement objectively and hold the government to the literal terms of

the plea agreement.”).

       Such an interpretation appears to comport with the parties’ reasonable

understanding of the agreement at the time the guilty plea was entered. At the

change of plea hearing, the government stated it understood the plea agreement as

obligating it to:

       [allow] defense counsel [to] argue for an extraordinary departure
       downward under Section 5K2.0. The burden being on the defense
       counsel, of course, to convince the Court that [it] would apply, and
       the government will simply defer to the Court’s determination of this
       point.

Record V at 9. This was also defendant’s understanding of the agreement.       Id. at

10. Therefore, based on the plain language of the agreement and the parties’

apparent understanding of the agreement at the change of plea hearing, the

government agreed not to oppose defendant’s argument that he was entitled to a

downward departure under    any of the subsections listed after § 5K2.0.

       Next, we consider whether the government kept its promise. At the

sentencing hearing when defendant argued he should receive a downward


                                         -11-
departure based on the government’s pre-indictment delay, the government argued

federal prosecution was delayed because Garner had become a confidential

informant and defendant’s prosecution would require disclosure of Garner’s

status. See Record VI at 50-52 (arguing government did not delay prosecution for

tactical reasons); Record VI at 58-59 (arguing defendant not prejudiced by

government’s delay); VII at 10 (announcing plan to present testimony to oppose

motion) . The government also called an F.B.I. agent to testify about Garner’s

role in the investigation to support its position. By arguing the government did

not delay prosecution for tactical reasons and presenting testimony to support its

position, the government clearly breached its plea agreement with defendant to

“defer to the court’s determination” on a downward departure for pre-indictment

delay. See Hawley , 93 F.3d at 693 (government’s comments that “characterize

the facts” and “argue a conclusion” breach plea agreement to not take position on

issue); c.f. Hand , 913 F.2d at 856 (“The prosecutor here did not characterize the

evidence elicited on cross examination, nor did he argue the effect of such

evidence to the sentencing judge.”).

      The government also breached the plea agreement with respect to

defendant’s motion to depart for coercion and duress. The following statements,

made in the government’s sentencing statement, clearly demonstrate the

government crossed the proverbial “line”:


                                        -12-
       Section 5K2.12 speaks of “serious” duress. The guideline drafters
       further provided that the extent of departure, if any, should be based
       upon the reasonableness of the defendant’s conduct and whether it
       would have [been] less harmful.
              One of the best methods for the court to determine this issue is
       to review the defendant’s own words, captured in a wiretap, as he
       spoke those words just prior to, and after, the car chase. They reflect
       defendant’s decisions in dealing with what had, undisputably, been a
       long-standing “family” matter, potentially involving inter-family
       violence. The real issue seems to be whether the “duress” was so
       extreme that defendant acted reasonably by breaking the law to
       protect himself and others, or whether this was a case of mutual
       combatants.

Record I, Doc. 26, at 4-5. While this statement does not explicitly state defendant

should not receive a downward departure based on coercion and duress, its

implication is clear.   See Hawley , 93 F.3d at 693 (prosecutor’s purported factual

information provided to court was “a thinly disguised, if disguised at all, effort to

persuade the court in a way that the government had promised it would not do”).

By pointing out the “real issue” and highlighting the “defendant’s own words” as

“one of the best methods for the court to determine this issue,” the government

was obviously, albeit subtly, taking a position on whether defendant should

receive a downward departure for coercion and duress. Perhaps the best

indication of the fact that the government’s statements were meant to persuade is

that the court ultimately resolved defendant’s motion by reviewing defendant’s

“own words” in the tape-recorded conversations and concluding the brothers had

a “mutual disagreement.”     See Record VII at 59-65.


                                          -13-
       When the government has breached a plea agreement, it is generally

preferable to remand the case to the district court for its determination as to

whether defendant should be resentenced by a different judge or should be

allowed to withdraw his guilty plea.    Hawley , 93 F.3d at 694 (“Providing this type

of latitude for the district court on remand is preferable in light of the district

court’s position with respect to the case.”). When the government’s breach is

particularly egregious or intentional, we will allow defendant to withdraw the

guilty plea. See id. ; see , e.g. , United States v. Cooper , 70 F.3d 563, 567 (10th

Cir. 1995). Since it does not appear the government’s breach was egregious or

intentional, but rather, was based on misinterpretation of the plea agreement, we

remand only for resentencing by a different judge.

                                           III.

       Defendant also argues the district court “applied the wrong legal test in

deciding whether to depart based on three years of pre-indictment delay.” Br. at

8. “[A] discretionary decision not to depart downward is not reviewable unless

the record shows that the district court erroneously believed that the Guidelines

did not permit a departure.”   United States v. Banta , 127 F.3d 982, 983 n.1 (10th

Cir. 1997). Apparently, defendant is arguing the court’s understanding that it

could not grant downward departure for pre-indictment delay unless defendant

established the government delayed to gain a tactical advantage and that


                                          -14-
defendant suffered prejudice as a result of the delay was erroneous.

      Clearly, the district court understood it could grant defendant’s motion for

downward departure based on pre-indictment delay.      The court specifically stated:

“As far as the preindictment delay, . . . . there is a provision under 5K2.12 under

the case law and under the guidelines where the District Court [has] the ability to

depart downward on these grounds.” Record VII       at 57. However, the court also

clearly believed it could not grant departure for pre-indictment delay unless

defendant proved the government intentionally delayed to gain a tactical

advantage and that he suffered prejudice as a result of the delay.

      When seeking dismissal of an indictment based on pre-indictment delay, a

defendant must establish the government intentionally delayed for tactical reasons

and that the delay caused him actual prejudice.   United States v. Trammell , 133

F.3d 1343, 1351 (10th Cir. 1998). However, a few appellate courts have

suggested a less stringent standard may apply at sentencing when a defendant is

seeking a downward departure based on pre-indictment delay.      See , e.g. , United

States v. Saldana , 109 F.3d 100, 104 (1st Cir. 1997) (“It seems to us possible that

someone with time and ingenuity could construct a case where a careless or even

an innocent delay produced sentencing consequences so unusual and unfair that a

departure [without a showing of government intent] would be permissible.”);

United States v. Martinez , 77 F.3d 332 (9th Cir. 1996) . This court has not


                                           -15-
specifically addressed whether a different standard may apply to pre-indictment

delay when that question is asserted as a basis for downward departure. We need

not decide this issue in the present case because, even if we were to adopt a more

lenient standard in the sentencing context, defendant would not be entitled to

downward departure. The delay defendant suffered “was neither extreme nor

implicitly sinister,” but rather the type of delay that is ordinary in “the fabric of

criminal proceedings.”   Saldana , 109 F.3d at 104.

      Defendant has not demonstrated the district court misunderstood the

guidelines or its authority to act under the guidelines and, therefore, we lack

jurisdiction to review the district court’s discretionary decision not to depart

downward. See Banta , 127 F.3d at 983 n.1.

                                          IV.

      We REMAND to the district court for resentencing by a different judge

based on the government’s violation of the plea agreement, and DISMISS for lack

of jurisdiction defendant’s claim that the district court abused its discretion in

denying downward departure based on pre-indictment delay.




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