
USCA1 Opinion

	




          May 6, 1992                              _________________________          No. 91-2276                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  THOMAS P. ATWOOD,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                              _________________________               Robert M. Napolitano on brief for appellant.               ____________________               Richard  S.  Cohen,  United  States Attorney,  and  F.  Mark               __________________                                  ________          Terison,  Assistant  United States  Attorney,  on  brief for  the          _______          United States.                              _________________________                              _________________________                    SELYA, Circuit  Judge.   This criminal  appeal requires                    SELYA, Circuit  Judge.                           ______________          that  we  determine  whether   the  government  shortchanged  the          appellant in respect to complying with a plea agreement.  Finding          that appellant neglected to  ask the government to do  that which          he  now  condemns the  government for  not  doing, we  affirm the          conviction  and sentence.   Cf.,  e.g., John  16:24 ("Ask  and ye                                      ___   ____  ____          shall receive.").                                          I                                          I                                          _                                      Background                                      Background                                      __________                    On March 13, 1991, a federal grand jury in the District          of  Maine  returned  an  indictment  charging defendant-appellant          Thomas  P. Atwood  with  conspiracy to  distribute lysergic  acid          diethylamide (LSD).  In July, appellant pled guilty pursuant to a          written plea  agreement (Agreement).  The  Agreement provided, in          relevant part, that appellant would cooperate with the government          and assist in ongoing investigations.  In return, the prosecution          made three essential commitments:                    1.   To  grant appellant  use immunity  (save                    only for serious crimes of violence).                    2.   To  refrain  from  opposing a  two-level                    reduction in the base offense level, U.S.S.G.                       3E1.1,  for   appellant's  acceptance   of                    responsibility.                    3.   To  divulge  the  extent of  appellant's                    assistance  in  certain circumstances,  viz.:                    "At the request of  the defendant, the United                     ________________________________                    States  Attorney's Office for the District of                    Maine will make known the  cooperation of the                    defendant to any individual or entity to whom                    the   defendant   wishes   such   information                    disseminated."  (Emphasis supplied.)          The  Agreement  contained no  promise  of  a specific  sentencing                                          2          recommendation.    Rather, both  parties  reserved  the right  to          petition the  district court  "for the  imposition of  any lawful          sentence . . . ."                    On  November 26,  1991, appellant  was sentenced.   The          prosecutor  recommended that the  court impose a  sentence at the          low end of the guideline sentencing range (GSR).  Apart from this          comment, the prosecutor, to all intents and purposes, stood mute.          The  court reviewed  the  presentence  investigation report  (PSI          Report),  set  the  GSR  at 210-262  months  (offense  level  34;          criminal history  category IV),1  and sentenced appellant  at the          range's nadir.  This appeal followed.                                          II                                          II                                          __                                   Issue Presented                                   Issue Presented                                   _______________                    On appeal, appellant is  represented by a new attorney.          Counsel's argument  is classic in its simplicity.  He asseverates          that "the government  breached the  terms of  the plea  agreement          when  it failed to advise the  sentencing court of the nature and          extent of the defendant's cooperation."   Had the government done          so,  counsel's  thesis  runs,  the sentencing  court  might  have          departed downward, thus shortening appellant's sentence.2                                        ____________________               1In establishing the GSR, the district court gave Atwood the          two-level credit for acceptance of responsibility contemplated by          the Agreement.  The prosecution did not oppose this adjustment.               2By means  of a supplemental brief,  appellant has attempted          to  raise a  second  issue, contending  that  the district  court          improperly relied on two uncounselled "drunk driving" convictions          in determining his criminal  history score.  But, the  PSI Report          stated  specifically  that  Atwood  "was  always  represented  by          counsel"  in his previous dealings  with the courts.   Atwood did          not  object to, or contradict, this statement.  Similarly, he did                                          3                                         III                                         III                                         ___                                       Analysis                                       Analysis                                       ________                                          A.                                          A.                                          __                                Appellate Jurisdiction                                Appellate Jurisdiction                                ______________________                    We confront, first, a  threshold issue:  the government          contends that there is no appellate jurisdiction.  We disagree.                    It is settled beyond peradventure in this circuit that,          ordinarily, a criminal  defendant cannot ground an appeal  on the          trial  court's failure  to depart  downward from  the GSR.   See,                                                                       ___          e.g., United States  v. Amparo, ___ F.2d ___, ___ (1st Cir. 1992)          ____  _____________     ______          [No. 91-2010, slip op. at 10]; United  States v. Lauzon, 938 F.2d                                         ______________    ______          326, 330 (1st Cir.), cert. denied, 112 S. Ct. 450 (1991);  United                               _____ ______                          ______          States v. Romolo, 937  F.2d 20, 22 (1st Cir. 1991); United States          ______    ______                                    _____________          v. Harotunian, 920 F.2d 1040, 1044 (1st Cir. 1990); United States             __________                                       _____________          v. LaGuardia,  902 F.2d 1010,  1012 (1st Cir.  1990).  But,  this             _________          appeal  is  a different  breed  of  cat.    The appeal  does  not          challenge  the lower court's failure  to depart per  se.  Rather,                                                          ___  __          the  appeal  zeroes  in  on  alleged   prosecutorial  misconduct,          appellant claiming  that the government breached  a material term          of  a  binding  plea  agreement.   We  have  regularly  exercised          appellate jurisdiction  to oversee claims  of that  genre.   See,                                                                       ___          e.g., United States v. Canada, ___ F.2d  ___, ___ (1st Cir. 1992)          ____  _____________    ______          [No.  91-1691, slip op. at 11-19]; United States v. Oyegbola, ___                                             _____________    ________                                        ____________________          not object to  the district  court's use of  the "drunk  driving"          convictions.  Under  these circumstances, the  issue that is  the          subject of Atwood's supplemental brief has not been preserved for          appellate review.  See United States v. Dietz, 950 F.2d 50, 55-56                             ___ _____________    _____          (1st Cir. 1991) (listing other cases).                                          4          F.2d ___, ___ (1st  Cir. 1992) [No.  91-1152, slip op. at  8-10];          United States v. Garcia, 954 F.2d 12, 17-18 (1st Cir. 1992).  The          _____________    ______          government has given us  no reason either to doubt  the propriety          of this practice or to eschew it here.                    We will not  paint the  lily.  An  appellate court  has          jurisdiction, on  direct review, to consider an appeal that seeks          to ascertain  whether the government satisfactorily complied with          the terms of a plea bargain.3                                          B.                                          B.                                          __                                      The Merits                                      The Merits                                      __________                    The  court of  appeals affords  de novo  review to  the                                                    __ ____          question  of whether  the  prosecution violated  the  terms of  a          written  plea agreement in a criminal case.   Canada, ___ F.2d at                                                        ______          ___ [slip op.  at 14];  United States v.  Moscahlaidis, 868  F.2d                                  _____________     ____________          1357,  1360 (3d  Cir. 1989).   Honoring  this tenet,  and mindful          that, in the plea-bargaining  context, the prosecution must often          be held to  "the most  meticulous standards of  both promise  and          performance," Correale v.  United States, 479 F.2d  944, 947 (1st                        ________     _____________          Cir. 1973), we find no hint of any breach.                    Plea agreements are  to be interpreted  under contract-                                        ____________________               3The  question  of  appellate jurisdiction  is,  of  course,          entirely  separate from  the  question of  whether the  defendant          appropriately preserved  his claim  for direct  appellate review.          See,  e.g., United States v. Argentine, 814 F.2d 783, 790-91 (1st          ___   ____  _____________    _________          Cir. 1987) (discussing applicability  of raise-or-waive rule to a          claim  that  the prosecutor  transgressed  the  terms of  a  plea          agreement).    Because  the instant  appeal  is  baseless on  the          merits,  see text  infra, it  would be  supererogatory for  us to                   ___       _____          consider  the issue of procedural default.  We, therefore, abjure          that exercise.                                          5          law  principles.  See  Garcia, 954 F.2d  at 17; United  States v.                            ___  ______                   ______________          Hogan, 862 F.2d 386, 388 (1st Cir. 1988).  Here, the Agreement is          _____          crystal clear.   It limits  the government's obligation  to offer          its views about defendant's  cooperation to those instances where          the defendant so requests.  We assume this clause means precisely          what it says;  after all,  defendant and his  trial counsel  both          signed  the  Agreement  and told  the  district  judge they  were          satisfied that it faithfully recounted the bargain.4                    Appellant   concedes  that   he  never   requested  the          prosecutor  to  address the  cooperation question  at sentencing.          Having  failed to  ask, appellant  was not  entitled to  receive.          Moreover,  it was  altogether  reasonable for  the prosecutor  to          conclude that the lack  of an affirmative request was  not merely          an oversight.  The PSI Report alluded  to appellant's cooperation          in  paragraph 17     a paragraph  to  which appellant  raised  no          objection.5  Under the  explicit provisions of the  Agreement, it          was for appellant to  decide whether his cause was  better served          by  reliance on  the  PSI  Report or  by  augmenting it  with  an          extemporaneous account  from the prosecutor.   The government had                                        ____________________               4If  the Agreement were deficient for failure to spell out a          further,  expanded promise,  an objection  to that  effect should          have been raised at the change-of-plea hearing.  Garcia, 954 F.2d                                                           ______          at 17 n.3;  Hogan, 862 F.2d at  389 n.4.  No  such objection ever                      _____          surfaced in  the court  below.   And, furthermore,  the Agreement          contained  defendant's express  warranty  "that  there [were]  no          further or  other agreements  or stipulations, either  express or          implied, other than those contained in th[e] Agreement."               5Appellant did register eleven objections to the PSI Report,          challenging  thirteen different  paragraphs therein.   All  these          objections were resolved to appellant's satisfaction in the court          below.  None of them touched upon paragraph 17.                                          6          no  right  to  play  the  quidnunc,  second-guessing  appellant's          choice.   Refined  to  bare essence,  then,  a clearly  expressed          condition precedent to the government's tentative obligation went          unfulfilled.   Hence, the prosecutor  was not obligated to launch          into a gratuitous spiel about Atwood's cooperation.                      At the expense of  belaboring the obvious, we also  add          that,   whatever   additional   information   about   appellant's          cooperation  might have  been imparted  at sentencing,  appellant          acknowledges that the GSR would not have been altered.  Thus, the          incremental  information  could  not   have  led  to  a  downward          departure.  It  is nose-on-the-face plain that  the Agreement did          not  obligate the  government  to move  for a  downward departure          based on  appellant's cooperation.   And,  we have squarely  held          that   a  sentencing  court  may  not  depart  on  the  basis  of          substantial assistance (a synonym  for "cooperation") except when          the government so requests.  See Amparo, ___ F.2d at ___ [slip op                                       ___ ______          at 11-12];  United States v. Drown, 942 F.2d 55, 56 n.2 (1st Cir.                      _____________    _____          1991);  Romolo, 937 F.2d at  23; LaGuardia, 902  F.2d at 1013-16;                  ______                   _________          see also U.S.S.G.    5K1.1 (a downward departure in  return for a          ___ ____          defendant's "substantial assistance" is available  "[u]pon motion          of the government").  Thus, appellant's complaint was destined to          self-destruct; whatever the prosecutor  did or did not contribute          to the allocution, appellant received the most favorable sentence          possible  under the circumstances    a sentence at  the bottom of          the applicable GSR.                                          IV                                          IV                                          __                                          7                                      Conclusion                                      Conclusion                                      __________                    We need  go no  further.   When, as  in this case,  the          prosecutor  did exactly  what  the government  promised to  do, a          claim  that the plea agreement  was breached will  not lie.6  See                                                                        ___          Oyegbola, ___  F.2d at ___ [slip  op. at 8]; Garcia,  954 F.2d at          ________                                     ______          17; Hogan, 862  F.2d at 389.  Finding no  cognizable error in the              _____          proceedings below, the conviction  and concomitant sentence  must          be          Affirmed.          Affirmed.          ________                                        ____________________               6The  rule,  of course,  is  not  ironclad.   Under  certain          circumstances,  there  may  be  exceptions  for  instances  of  a          prosecutor's  halfhearted compliance  with  the terms  of a  plea          agreement, United States v. Brown, 500 F.2d 375, 377-78 (4th Cir.                     _____________    _____          1974),  or where  the prosecutor has  injected into  the dialogue          "material  reservations  about   the  agreement   to  which   the          government had committed  itself," Canada, ___ F.2d  at ___ [slip                                             ______          op. at 16], or  where "the government immediately took  away with          the left hand what it had given with the right," United States v.                                                           _____________          Voccola,  600  F. Supp.  1534, 1537  (D.R.I.  1985).   This case,          _______          however, does not implicate any of these exceptions.                                          8
