U.S. v. Clark, 94-2071

Citation55 F.3d 9
Decision Date01 March 1995
Docket NumberNo. 94-2071,94-2071
PartiesUNITED STATES, Appellee, v. Craig J. CLARK, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Kevin E. Buchholz with whom McDonough & Lindh, P.A., Manchester, NH, was on brief, for appellant.

Peter E. Papps, First Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief, for appellee.

Before STAHL, Circuit Judge, and CAMPBELL and JOHN R. GIBSON, * Senior Circuit Judges.

STAHL, Circuit Judge.

Defendant-appellant Craig J. Clark appeals from his sentence, claiming that the government breached its plea agreement with him. Agreeing, we remand for resentencing.

I. BACKGROUND

On June 1, 1994, Clark waived his right to indictment and pleaded guilty to a two-count information stemming from a kidnapping. Count I charged him with conspiracy to interfere with commerce by threats or violence, in violation of 18 U.S.C. Sec. 1951, and Count II charged him with interference with commerce by threats or violence, also in violation of 18 U.S.C. Sec. 1951. The written plea agreement contained the following stipulation:

The Government agrees that it will not oppose a three (3) level reduction in the defendant's Adjusted Offense Level under the Sentencing Guidelines, based upon the defendant's prompt recognition and affirmative acceptance of personal responsibility for the offense.

After accepting Clark's guilty plea, the district court ordered a presentence investigation and report to be issued by the probation office. The Presentence Investigation Report indicated that during the presentence interviews of Clark's co-defendants, the probation officer learned that, prior to the arraignment and the change-of-plea proceedings, Clark had attempted to induce two of his co-defendants to lie to the court and state that the kidnapping victim had been involved in the extortion scheme. Because of this activity, the probation officer concluded that Clark had attempted to obstruct justice and recommended a two-level increase in his Adjusted Offense Level pursuant to U.S.S.G. Sec. 3C1.1. Defense counsel objected to the probation officer's conclusions.

Prior to Clark's sentencing hearing, the government submitted to the court a sentencing memorandum outlining proposed guideline adjustments to be taken in light of Clark's alleged obstruction of justice. The

memorandum contained a two-page discussion about whether Clark was entitled to an acceptance-of-responsibility adjustment. Clark objected to the government's sentencing memorandum, contending that it breached the plea agreement. Defense counsel filed a motion to withdraw Clark's plea, explaining to the court that when the government breaches a plea agreement, the court may either compel specific performance on the plea agreement or allow the defendant to withdraw his plea. The court denied Clark's motion to withdraw his plea, stating first that the government had not breached the plea agreement, second that it would not be influenced by what the government recommended, and third that it would not consider the acceptance-of-responsibility portion of the government's sentencing memorandum. After denying the three-level downward adjustment for acceptance of responsibility, the court imposed a two-level upward adjustment for obstruction of justice and sentenced Clark to 188 months.

II. DISCUSSION
A. Standard of Review

Clark and the government disagree as to the appropriate standard of review, Clark claiming that our review is de novo and the government, despite citing cases to the contrary in other parts of its brief, flatly stating that it is for clear error. As we have previously acknowledged, see United States v. Gonzalez-Perdomo, 980 F.2d 13, 16 n. 2 (1st Cir.1992), in some cases we have stated that our review is de novo, while in other cases we have stated that our review is for clear error. Compare id. at 16 (de novo); Kingsley v. United States, 968 F.2d 109, 114 (1st Cir.1992) (de novo); United States v. Atwood, 963 F.2d 476, 478 (1st Cir.1992) (de novo); United States v. Canada, 960 F.2d 263, 269 (1st Cir.1992) (de novo) with United States v. Tilley, 964 F.2d 66, 71 (1st Cir.1992) (clear error); United States v. Kurkculer, 918 F.2d 295, 298 n. 5 (1st Cir.1990) (clear error); Panzardi-Alvarez v. United States, 879 F.2d 975, 987 (1st Cir.1989) (clear error), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990); United States v. Giorgi, 840 F.2d 1022, 1028 (1st Cir.1988) (clear error); United States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.) (clear error), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987); United States v. Khoury, 755 F.2d 1071, 1073 (1st Cir.1985) (clear error). We take this opportunity to clarify the appropriate standard of review and to explain why the two different standards stated in many of these cases are not in conflict.

Cases involving plea agreements allegedly breached by the government present two separate issues for our consideration, one factual, the other legal. First, there are the factual questions of what the terms of the agreement are and what the government's conduct was. See, e.g., Giorgi, 840 F.2d at 1028-29 (looking to reasonable expectations of parties to determine whether ambiguous plea agreement foreclosing prosecution for "any criminal acts related to thefts or hijackings of vans" barred later prosecution for arson or mail fraud) (emphasis eliminated); accord Bemis v. United States, 30 F.3d 220, 223 (1st Cir.1994) (remanding to district court to make factual finding whether government promised as part of plea agreement to secure defendant's entry into witness protection program). If disputed, these factual questions are to be resolved by the district court, and we will review the district court's determinations only for clear error. See Giorgi, 840 F.2d at 1028. Second, there is the legal question of whether the government's conduct breached the plea agreement. See, e.g., Atwood, 963 F.2d at 479 (government did not breach plea agreement requiring it to offer its views on defendant's cooperation at defendant's request when defendant did not so request). Because whether the government's conduct constituted a breach is a question of law, our review is plenary. Id. at 478.

Here, we are not faced with disputed facts. Thus, we must determine only the legal question of whether the government's undisputed conduct breached the plea agreement, which we review de novo.

B. Legal Principles

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court declared that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. at 262, 92 S.Ct. at 499. Because plea bargaining requires defendants to waive fundamental constitutional rights, we hold prosecutors engaging in plea bargaining to "the most meticulous standards of both promise and performance." Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973). As we stated in Kurkculer, "[t]he government must keep its promises or the defendant must be released from the bargain." 918 F.2d at 297.

We are guided in our interpretation of plea agreements by general principles of contract law. See Atwood, 963 F.2d at 479; Giorgi, 840 F.2d at 1025. As we explained in Gonzalez-Sanchez,

When a defendant has entered into a plea agreement with the government, the court must ensure that he receives what is reasonably due him under the agreement. Contractual principles apply insofar as they are relevant in determining what the government "owes" the defendant. If the defendant lives up to his end of the bargain, the government is bound to its promises.

825 F.2d at 578 (footnotes omitted). See also United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985) ("Though a matter of criminal jurisprudence, plea bargains are subject to contract law principles insofar as their application will insure the defendant what is reasonably due him.").

C. Did the Government Breach?

We think that the government breached its plea agreement in this case. As part of the consideration for defendant's guilty plea, the government agreed not to oppose a three-level reduction for acceptance of responsibility. Nonetheless, the government effectively opposed such a reduction with its sentencing memorandum, in which it stated:

While the government is cognizant of th[e] fact that it agreed not to oppose a three level downward departure for acceptance [of responsibility] in the plea agreement, it must be stated that the Government was unaware of this information indicative of obstruction at the time of the plea negotiations. Although the government can not now close its eyes to the defendant's blatant attempts to obstruct justice, it would suggest to the court that its prior representations in the plea agreement restrict a more vigorous argument on the issue of the loss of an acceptance of responsibility award. The government relies on the court's sound discretion in resolving this issue, although there appears to be nothing "extraordinary" about the present case that would bring it within the narrowly drawn exception of U.S.S.G. Sec. [3E1.1 application note 4]. 1

We hold that the government opposed an acceptance-of-responsibility adjustment with this sentencing memorandum; formal opposition was not necessary. Cf. United States v. Garcia, 698 F.2d 31, 37 (1st Cir.1983) (" 'A plea agreement is not an appropriate context for the Government to resort to a rigidly literal approach in the construction of language.' ") (quoting United States v. Bowler, 585 F.2d 851, 854 (7th Cir.1978)); Canada, 960 F.2d at 269 ("While it can be argued that the government stopped short of explicitly repudiating the agreement, Santobello prohibits not only explicit repudiation of the government's assurances, but must in the interests...

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