U.S. v. Fentress, 85-5517

• Decision Date: 09 June 1986
• Docket Number: No. 85-5517,85-5517
• Citation: 792 F.2d 461
• Parties: UNITED STATES of America, Appellee, v. Robert Mark FENTRESS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 461

792 F.2d 461

UNITED STATES of America, Appellee, v. Robert Mark FENTRESS, Appellant.

No. 85-5517.

United States Court of Appeals,

Fourth Circuit.

Argued Jan. 10, 1986.

Decided June 9, 1986.

Gail F. Miller (Greeson & Page, Winston-Salem, N.C., on brief) for appellant.

Kenneth P. Andresen, Chief Asst. U.S. Atty., Charlotte, N.C. (Charles R. Brewer, U.S. Atty., Asheville, N.C., on brief), for appellee.

Before MURNAGHAN and WILKINSON, Circuit Judges, and MERHIGE, United States District Judge for the Eastern District of Virginia, sitting by designation.

WILKINSON, Circuit Judge:

Robert Mark Fentress appeals from judgments of conviction entered by the U.S. District Court for the Western District of North Carolina upon Fentress' guilty pleas. He argues that the prosecution breached a plea agreement by recommending to the court that Fentress be compelled to compensate the victims of his crimes and by further recommending that Fentress' prison sentence begin after he had completed his current period of incarceration for an unrelated felony. Fentress also argues that the district court erred in the process by which it accepted his pleas and ordered him to make restitution. As we find no prosecutorial violation of the agreement and no prejudicial departure from proper plea procedures, we affirm.

I.

On March 4, 1985, Fentress and his lawyer entered into a written plea bargain with an Assistant United States Attorney. In the agreement, Fentress promised to plead guilty to one armed bank robbery in violation of 18 U.S.C. Sec. 2113(a) in the case docketed as C-CR-84-118, and to one bank robbery in violation of 18 U.S.C. Sec. 2113(b) in the case docketed as C-CR-84-119. Fentress also promised to plead guilty to six other violations of 18 U.S.C. Sec. 2113(b). Conviction under Sec. 2113(a) authorizes a fine not exceeding $5000, a term of imprisonment not exceeding twenty years, or both of these punishments; conviction under Sec. 2113(b) authorizes a fine not exceeding $5000, a term of imprisonment not exceeding ten years, or both of these punishments. For either offense, the court may order the perpetrator to make restitution to the victims of the theft. See 18 U.S.C. Sec. 3579.

The prosecution promised in the plea agreement to suggest to the court that any sentence imposed in case C-CR-84-119 "not exceed 5 years imprisonment, thereby recommending that the term of imprisonment for the two counts to which the defendant pleads guilty in indictments C-CR-84-118 and C-CR-84-119 should not exceed 25 years." It was thus expressly contemplated that those two terms would run consecutively. For the other six violations of 18 U.S.C. Sec. 2113(b), the prosecution promised to "recommend that the sentences imposed upon defendant's plea of guilty ... be made to run concurrently with each other and to also run concurrently with any sentence imposed upon defendant's plea of guilty to Indictments in cases numbered C-CR-84-118 and C-CR-84-119." These were the only positions to which the prosecution bound itself on the punishment of Fentress. Nothing was mentioned about the relationship between the proposed sentence here and a twelve-year federal sentence that Fentress was already serving for a bank robbery in Georgia. The agreement specifically provided that "This document contains the full and complete agreement between the parties, and no promises or representations have been made except as are incorporated herein."

The Assistant United States Attorney presented the parties' deal to the district court and introduced testimony showing the factual basis for the guilty pleas, including a report that Fentress had stolen $37,844.61, but the government had recovered only $239.00. Alluding to this evidence in his comments on the appropriate sentence, the prosecutor argued that

[T]he agreement does not speak to other forms of punishment, in addition to the time limits or time frame that's stated in the agreement. The agreement does not speak to the other forms of punishment that you might impose, such as restitution. Any amount of money this man makes during prison, for example, might be appropriately used to offset the amount of money that he took. The fine itself is about $40,000.00 in this case as it relates to the eight bank robberies, eight times the $5,000.00 for each one. Those are other possibilities, Judge, that I would bring to your attention, as I'm sure you have already considered. We do urge you to run whatever time you impose on [case C-CR-84-119] consecutively to the time that is imposed on [case C-CR-84-118], and we urge the Court to run all this time consecutively to the time that he is facing in Georgia, the twelve years that he faces down there.

The district court subsequently did sentence Fentress in C-CR-84-118 to a twenty-year term of imprisonment that would be followed by a five-year term of imprisonment for the charge in C-CR-84-119. This time would be in addition to that served for the Georgia felony. For each of the other six robberies, the court ordered five-year sentences to be served concurrently with the incarceration under C-CR-84-118 and C-CR-84-119. The court also ordered Fentress to make restitution to each of the robbed banks. Fentress now appeals.

II.

Fentress first protests that the prosecution breached the plea agreement by asking the district court to order restitution and consecutive sentences. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971). Evaluation of this argument turns on the correct interpretation of the agreement in which the parties defined their commitments. In that analysis, "we must apply fundamental contract and agency principles to plea bargains as the best means to fair enforcement of the parties' agreed obligations." United States v. McIntosh, 612 F.2d 835, 837 (4th Cir.1979). Accordingly, "any dispute over the terms of the agreement is to be resolved by objective standards." United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir.1980).

These standards indicate that the prosecutor's comments did not violate the plea bargain. Everything the government promised to do, it did. The government kept its promises on the proposed length of imprisonment for C-CR-84-119 and on the proposed overlap among the sentences for violation of 18 U.S.C. Sec. 2113(b). The government simply made no other guarantees about its conduct, as Fentress himself acknowledged when he agreed to the "merger" clause of the plea bargain instrument. Perhaps for that reason, Fentress did not object when the Assistant United States Attorney argued for restitution and consecutive sentences or when the district court imposed these penalties. Certainly Fentress has never suggested that the prosecution articulated any further representations. Fundamental contract principles establish that the written plea bargain was "adopted by the parties as a complete and exclusive statement of the terms of the agreement." Restatement (Second) of Contracts Sec. 210 (1981). As a fully integrated agreement, the described exchange may not be supplemented with unmentioned terms. Id. at Sec. 216. Fentress' newly suggested provision, that the prosecution would offer no recommendations other than those identified in the plea bargain instrument, therefore cannot stand.

This conclusion from the law of contracts carries over to the law of criminal procedure. The prosecution owed Fentress no duty but that of fidelity to the agreement. Neither the Constitution nor the Federal Rules of Criminal Procedure requires that a plea agreement must encompass all of the significant actions that either side might take. ^* If the agreement does not establish a prosecutorial commitment on the full range of possible sanctions, we should recognize the parties' limitation of their assent. Cf. United States v. Benchimol, --- U.S. ----, 105 S.Ct. 2103, 2105, 85 L.Ed.2d 462 (1985) ("Since Rule 11(e) speaks generally of the plea bargains that the parties make, it was error for the Court of Appeals to imply as a matter of law a term which the parties themselves did not agree upon."). Courts have regularly upheld analogous prosecutorial measures that were not precluded by agreement. See, e.g., United States v. Abbamonte, 759 F.2d 1065 (2d Cir.1985); Brooks v. United States, 708 F.2d 1280 (7th Cir.1983); United States v. Mooney, 654 F.2d 482 (7th Cir.1981). While the government must be held to the promises it made, it will not be bound to those it did not make. To do otherwise is to strip the bargaining process itself of meaning and content.

As the Supreme Court noted in Santobello v. New York, 404 U.S. at 261, 92 S.Ct. at 498, the considerations underlying enforcement of a plea bargain "presuppose fairness in securing agreement between an accused and a prosecutor." Fentress received fair treatment in this case. He was represented by an attorney throughout the negotiations and he has not questioned that the lawyer provided effective assistance within the sense described by Hill v. Lockhart, --- U.S. ----, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Fentress also brought to the plea negotiations, along with counsel, bargaining leverage that was commensurate with that of the prosecution, namely his right to force the prosecution to trial. See generally Mabry v. Johnson, 467 U.S. 504, 508 & n. 8, 104 S.Ct. 2543, 2547 & n. 8, 81 L.Ed.2d 437 (1984). Because Fentress' deal was thus "no less voluntary than any other bargained-for exchange," id. at 508, 104 S.Ct. at 2547, we abide by the precise terms of the agreement and find that the prosecution made no promises that were violated in the request for restitution and consecutive sentences.

III.

Fentress' second attack on the validity of his plea concerns the conduct of the court. In Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), the Supreme Court held that a person pleading guilty to criminal charges must have "a full understanding of what the...