                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-7-2005

USA v. Pletcher
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3367




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"USA v. Pletcher" (2005). 2005 Decisions. Paper 150.
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                                                              NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                    __________

                                       No. 04-3367
                                       __________

                             UNITED STATES OF AMERICA

                                             v.

                                    PAUL PLETCHER,
                                              Appellant
                                      __________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (Crim. No. 04-cr-00095)
                      District Judge: Honorable Sylvia H. Rambo

                                        __________

                        Submitted Under Third Circuit L.A.R. 34.1(a)
                                    November 8, 2005
                                      ___________

                 Before: ROTH, FUENTES and GARTH, Circuit Judges
                          (Opinion Filed: December 7, 2005)
                                    __________

                                         OPINION
Garth, Circuit Judge:

      Paul Pletcher was charged with possession of a firearm by a previously convicted

felon in violation of 18 U.S.C. §922(g). He entered into a Plea Agreement which

included the following conditional promise: “if the defendant can adequately demonstrate

                                             1
[an] acceptance of responsibility to the government, the United States hereby moves that

at sentencing the defendant receive a three-level reduction in the defendant’s offense

level for acceptance of responsibility.”

       After entering his plea of guilty, Pletcher was released pending sentencing on

several conditions, including that he not use any unlawful controlled substances unless

they were prescribed by a medical doctor. At a June 1, 2004 hearing before Magistrate

Judge J. Andrew Smyser, Pletcher admitted that he had violated this condition repeatedly.

Consequently, his bail was revoked and he was detained pending sentencing.

       The Probation Office made the following recommendation in Pletcher’s

Presentence Report:

              Mr. Pletcher . . . has repeatedly violated the conditions of
              pretrial services supervision by using drugs. He tested
              positive for marijuana use three times and cocaine once. The
              defendant has not voluntarily terminated or withdrawn from
              criminal conduct, and has not complied with his release
              conditions. Mr. Pletcher’s illegal use of drugs is inconsistent
              with acceptance of responsibility as contemplated by the
              guidelines and a reduction pursuant to USSG §3E1.1 is
              unwarranted.

       At the sentencing proceeding on August 10, 2004, the prosecution echoed the

Presentence Report and recommended that District Judge Sylvia H. Rambo not apply the

three-level reduction referenced in the Plea Agreement because of Pletcher’s abuse of

drugs while he awaited sentencing. Judge Rambo did not apply the reduction, and

sentenced Pletcher to 92 months in prison and a fine of $800.



                                             2
       Pletcher appealed his sentence. He argued that (1) the government breached the

Plea Agreement when it recommended that the Court deny him credit for acceptance of

responsibility, (2) Judge Rambo erred when she accepted that recommendation, and (3)

the Sentencing Guidelines were unconstitutional under Blakely v. Washington, 542 U.S.

296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

       After briefing was complete on this appeal, the Supreme Court decided United

States v. Booker, 543 U.S. 200, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Pletcher

submitted a supplemental letter brief on March 14, 2005, arguing that because Judge

Rambo treated the Guidelines as mandatory when she sentenced him, Booker required

remand.

       We hold that the government did not breach the Plea Agreement when it

recommended that the Court deny Pletcher credit for acceptance of responsibility.1 The

government promised in the Plea Agreement to recommend that the Court give such

credit if Pletcher demonstrated acceptance of responsibility. When Pletcher violated the

terms of his release, he failed to fulfill this explicit condition to the government’s

satisfaction. The government’s recommendation that Pletcher be denied a reduction was

therefore not a breach of the Plea Agreement. The cases Pletcher cites in arguing to the

contrary are factually distinct and inapposite.




       1
        Our review of this claim is plenary. United States v. Rivera, 357 F. 3d 290, 293-
294 (3d Cir. 2004).

                                               3
       We also find that Judge Rambo correctly interpreted USSG §3E1.1, and did not

clearly err, when she accepted the government’s recommendation – i.e., when she

determined that Pletcher’s violation of the terms of his release was inconsistent with any

genuine acceptance of responsibility, and thus that under USSG §3E1.1 Pletcher was not

entitled to a reduction. See, e.g., United States v. Ceccarani, 98 F. 3d 126 (3d Cir. 1996).

       Despite these holdings, in accordance with Booker and with United States v.

Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), we will vacate Pletcher’s sentence and

remand for resentencing. In doing so, we reject the suggestion made by Pletcher that he

be resentenced by a different District Court judge.




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