U.S. v. Vaval
| Citation | 404 F.3d 144 |
| Decision Date | 12 April 2005 |
| Docket Number | Docket No. 04-0121-CR. |
| Parties | UNITED STATES of America, Appellee, v. Troy VAVAL, aka Justice Vaval, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
John A. Cirando (Lisa M. Cirando, Susan R. Rider, Michelle A. Olawoye, on the brief), D.J. & J.A. Cirando, Esqs., Syracuse, New York, for Defendant-Appellant.
Colleen Kavanagh, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Jo Ann M. Navickas, Assistant United States Attorney, on the brief), Brooklyn, New York, for Appellee.
Before: WINTER, SOTOMAYOR, and B.D. PARKER, Circuit Judges.
Troy Vaval appeals from his conviction and sentence after pleading guilty before Judge Amon. Appellant participated in a scheme to rob and carjack a purported illegal gun buyer, actually a confidential informant carrying federal funds. On appeal, appellant principally argues that: (i) he should be permitted to withdraw his guilty plea because the district court violated Fed.R.Crim.P. 11(b)(1)(K) by failing to inform him of mandatory restitution; and (ii) he should be resentenced before a different judge or permitted to withdraw his guilty plea because the government's arguments at sentencing violated the plea agreement.1 We conclude that the failure to inform him of mandatory restitution in the amount of $6500 was not plain error because it would not have affected his decision to plead guilty. However, we also conclude that the government breached the plea agreement by engaging in sentence advocacy, and we therefore vacate appellant's sentence and remand for resentencing.
Appellant was charged with carjacking, 18 U.S.C. § 2119(1) (Count I), robbery of federal money using a dangerous weapon, 18 U.S.C. § 2114(a) (Count II), and possession of a firearm with an obliterated serial number, 18 U.S.C. §§ 922(k), 924(a)(1)(B), 3551 et seq. (Count VI), by a felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2), 3551 et seq. (Count V). The indictment also charged two co-defendants.
The government alleged that on January 2, 2003, appellant met with a confidential informant ("CI") in Queens, New York after having promised to sell the CI firearms. Appellant told the CI to follow him into an alley, where the CI was ambushed by appellant and three other individuals using two guns, one of them a Tec-9. Appellant took $6500 of federally-supplied "buy money" and a gold chain from the CI; another attacker took his wallet and rings. Appellant then told his co-defendants to put the CI in the CI's car and take the keys. Appellant got into his own car; two of the other three attackers drove the CI's car further into the alley and were in the process of taking off the CI's pants when the police arrived. Before his arrest, appellant attempted to flee, driving at high speeds down a service road, on sidewalks, and in the middle of roads toward oncoming traffic.
Appellant pleaded guilty to Count II of the indictment — robbery of federal property with a dangerous weapon, 18 U.S.C. § 2114(a) — pursuant to a plea agreement. The agreement stated that the maximum term of imprisonment was 25 years, the maximum fine was $250,000, and restitution was "N/A" under 18 U.S.C. § 3663. The remaining counts were to be dismissed. The agreement further stated that the government "will advise the Court and the Probation Department of information relevant to sentencing, including criminal activity engaged in by the defendant, and such information will be used by the Court in determining the defendant's sentence." However, the government also agreed that "based upon information now known to" the U.S. Attorney's Office, it would "take no position concerning where within the Guidelines range determined by the Court the sentence should fall," and "make no motion for an upward departure." The government would not be bound by these two provisions if "information relevant to sentencing" became known to it after the date of the plea agreement, or if it determined that appellant violated the agreement.
Appellant signed the plea agreement and pleaded guilty on September 9, 2003. At the plea colloquy, the court did not mention restitution but did tell appellant that he was subject to a mandatory $100 special assessment and a maximum fine of $250,000. Appellant, through counsel, asked "to be assured. . . that the U.S. Attorney agreed not to move for an upward departure, and not to argue where in the guideline range he should be sentenced." The government agreed to this characterization of the plea agreement. Appellant then stated that he "planned" the scheme to steal federal money, that two other individuals were involved, and that a co-defendant pointed a Tec-9 during the robbery. The court accepted the plea.
The Presentence Report ("PSR") recommended an offense level of 32, a Criminal History Category ("CHC") of II, and, therefore, a Guidelines range of 135 to 168 months. It also stated, correctly, that restitution of $6500 was mandatory. The PSR's offense level was higher than that specified in the plea agreement, because it included a two level enhancement for fleeing from the police in a dangerous manner. The PSR's recommended CHC was lower than that of the plea agreement — II rather than III — because the plea agreement CHC had been calculated incorrectly to include outdated crimes. Finally, the PSR emphasized appellant's supervisory role and seemed to show that five participants were involved in the crime, justifying a three level role adjustment; nevertheless, the PSR recommended only the two level role adjustment that had been recommended in the plea agreement. Appellant did not object to any aspects of the PSR.
At sentencing, the government noted that both the plea agreement and the PSR had erroneously given appellant a two-level rather than a three-level role adjustment. Noting that its mistake was caused by a misunderstanding of the law, the government stated:
Judge, I did agree to the two level enhancement in the plea agreement for a role adjustment. I was speaking to the probation officer before court today. I wanted to point out to the Court that although the probation officer also only gave two points for the adjustment of role offense, . . . as the Court will recall the testimony at [the co-defendant's] trial did bring out that actually including the defendant there were five participants in this crime. So, technically, I think that it would be three levels added instead of two for the role adjustment.
Appellant objected, claiming that this statement violated the plea agreement.
The district court decided to use the Guidelines calculations specified in the PSR, because the role adjustment issue was not raised in a timely fashion and because it believed that the added level would not affect appellant's sentence. Having set the Guidelines range at 135 to 168 months, the court then gave the parties a chance to speak. Appellant's counsel asked for a sentence at the bottom of the range, while appellant apologized for his conduct and asked for leniency. The government, after noting that it had "waived the government's right in the plea agreement to ask for an upward departure or to ask the Court to sentence the defendant in a particular place in the range of the guidelines," stated:
I would like to point out a couple of things to the Court. Again, in the plea agreement we believed that the defendant was in [CHC] three. It turns out that he is in [CHC] two. I find this defendant's criminal history appalling. And the fact that he can sit here today and say that he made a mistake, I find completely disingenuous. Because it is a mistake that he has made over and over and over again in terms of robbing people at gun point and using violence to commit robberies. I understand that the guidelines preclude us from looking at or calculating certain offenses. But certainly this is not this defendant's first or second offense.
Also, the instant conduct shows that this defendant was the ring leader of this crime. He punched the victim in the face. He orchestrated three people who were armed with guns. One was an Intratek AB-10 semi automatic assault weapon. To be lying in wait for a victim, to rob him, to abduct him. There was testimony at the trial brought out that he was going to be killed. I just ask the Court to consider all of that when making the Court's decision about where to sentence this defendant.
Appellant objected that the government was violating its agreement not to take any position about where within the Guidelines range appellant should be sentenced and asked that the government's remarks be stricken. The government responded that "we don't make a promise that we will be silent at sentencing" but only not to move for an upward departure or to ask for a particular sentence within a range. The government noted that
The court said that it understood appellant's concern about the arguments made by the government, but that
I sat through the trial [of appellant's co-defendants]. The government's remarks do not change any view that the Court had of this case coming out here.
So whether the government is correct or not, whether their interpretation of your agreement is correct, I don't think there is any prejudice as a result of it.
I think that I have given Mr. Vaval the serious benefit here by not litigating an issue about the extra [role adjustment] point.
The court noted that it had always believed that this was an "extremely serious...
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