U.S. v. Canada, 91-1691

Citation960 F.2d 263
Decision Date02 April 1992
Docket NumberNo. 91-1691,91-1691
PartiesUNITED STATES of America, Appellee, v. Barney CANADA, a/k/a Byron Levon Canada, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Richard J. Shea, Boston, Mass., by appointment of the Court, for defendant, appellant.

Wayne A. Budd, U.S. Atty., with whom Lon F. Povich, Asst. U.S. Atty., Boston, Mass., was on brief for U.S.

Before BREYER, Chief Judge, CAMPBELL, Senior Circuit Judge, and CYR, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Defendant, Barney Canada, a/k/a Byron Levon Canada, appeals from his sentence following a guilty plea. A principal issue is whether remarks made by the Assistant United States Attorney during sentencing amounted to a repudiation of the plea bargain.

Canada was charged with operating an "advance fee scheme" in which he and several coconspirators would induce unsuspecting individuals to pay advance fees--to be held in escrow--in exchange for the promise to arrange financing for projects on which these individuals sought to embark. In the end Canada and his coconspirators would keep the fees without producing the promised financing. A grand jury indicted Canada on 26 counts charging him with conspiracy, in violation of 18 U.S.C. § 371; mail fraud, in violation of 18 U.S.C. § 1341; wire fraud, in violation of 18 U.S.C. § 1343; inducing interstate transportation for fraud, in violation of 18 U.S.C. § 2314; aiding and abetting, in violation of 18 U.S.C. § 2; and bankruptcy fraud, in violation of 18 U.S.C. § 152. Canada pleaded guilty to all 26 counts pursuant to a negotiated plea agreement with the government, memorialized in a four-page letter which we attach as an appendix.

The plea agreement provided essentially as follows. In exchange for Canada's guilty plea and cooperation, the government would forego prosecution of Canada for certain conduct known to the government after the indictment. The government would recommend that the district court impose a sentence of 36 months incarceration. And the government would inform the Probation Department and the court of "this agreement ... [and] the full nature and extent" of Canada's cooperation. The agreement was expressly premised on certain described calculations under the guidelines, including an assumed criminal history category of II, and a two-level reduction in offense level for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a guideline range of 30-37 months. These calculations nowhere included any enhancement under U.S.S.G. § 3B1.1 of Canada's offense level for the role of manager or supervisor in the criminal activity.

After a hearing, Canada was sentenced in the United States District Court for the District of Massachusetts to a term of imprisonment of 48 months--a sentence one year longer than the government's recommended 36 months. The court selected this term from a guideline range of 46 to 57 months. In calculating this range, the court found that Canada fell within criminal history category III; granted a two-point reduction for the acceptance of responsibility under U.S.S.G. § 3E1.1; and imposed a three-point enhancement for Canada's supervisory role in the offense under U.S.S.G. § 3B1.1. The court also ordered Canada to make restitution in the amount of $1.8 million.

Canada contends his sentence was infected by two errors. First, he contends that the court's imposition of a three-level enhancement for his alleged supervisory role in the offense was improper. Second, Canada argues that the government breached its plea agreement with him by urging the court to impose a higher sentence than that upon which it had agreed, and by failing to inform the court of the full extent of Canada's cooperation with the government as promised in the plea agreement. We reject Canada's first argument, but agree that the government did not live up to the terms of its plea agreement. Accordingly, we vacate Canada's sentence and remand for resentencing before a different judge.

I.

At the sentencing hearing, the district court stated,

the record is clear, that at least as among the defendants in the case, Mr. Canada was at least a manager or supervisor for part of the time of this exercise. The record is also clear that the criminal activity was extensive.... I think it is entirely appropriate to add three levels under 3B1.1(b). 1

Canada does not challenge the court's above determination on its merits. Rather, Canada complains, (1) that he was not given proper advance notice that his managerial or supervisory role in the offense would be an issue at the sentencing hearing; and (2) that he was not given advance notice that the court would rely on testimony and evidence adduced at proceedings against his codefendants in assessing his role in the offense. We find no merit in these contentions.

In contending he had no notice that his role in the offense would be an issue at the sentencing hearing, Canada points out that the presentence report did not assess his leadership or supervision of his codefendants. Rather, the report stated that "[i]nformation as to the defendant's specific role in the offense was requested but never received and thus there is no basis on which to base any adjustment." Canada also notes--and the government appears to concede 2--that during plea negotiations, the government indicated that it would not seek enhancement based on Canada's role in the offense. Consequently, he argues, he was taken by surprise when the judge raised the issue at his sentencing hearing. Canada asserts that under the Supreme Court's recent decision in Burns v. United States, --- U.S. ----, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), it was incumbent upon the court to notify him in advance that it planned to consider any upward adjustment not recommended in the presentence report. We disagree.

In Burns, the Supreme Court held that "before a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a presentencing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling." Burns, 111 S.Ct. at 2187 (emphasis supplied). 3 Burns, however, dealt with a court's sua sponte decision to depart upward from the guidelines. Citing Rule 32's mandate that the parties be given "an opportunity to comment upon the probation officer's determination and on other matters relating to the appropriate sentence," and noting that "whether a sua sponte departure from the Guidelines would be legally and factually warranted is a 'matte[r] relating to the appropriate sentence,' " the Court reasoned that "it makes no sense to impute to Congress an intent that a defendant have the right to comment on the appropriateness of a sua sponte departure but not the right to be notified that the court is contemplating such a ruling." Id. at 2186 (emphasis in original).

We do not read Burns to require special notice where, as here, a court decides that an upward adjustment is warranted based on offense or offender characteristics delineated within the Sentencing Guidelines themselves, at least where the facts relevant to the adjustment are already known to defendant. The Burns court was concerned about a sentencing court's sua sponte departure from the Sentencing Guidelines "[b]ecause the Guidelines place essentially no limit on the number of potential factors that may warrant a departure." Id. at 2186 (citing Guidelines Ch. 1, Part A, Introduction 4(b)). Because "no one is in a position to guess when or on what grounds a district court might depart, much less to 'comment' on such a possibility in a coherent way," the Court concluded that "the textual and contextual evidence of legislative intent indicates that Congress did not intend district courts to depart from the Guidelines sua sponte without first affording notice to the parties." Id. at 2186.

In contrast, the Sentencing Guidelines define specific and finite factors warranting the application of an upward or downward adjustment to a defendant's otherwise applicable sentencing range. Unlike a sua sponte departure, an adjustment does not require the parties to try "to anticipate and negate every conceivable ground on which the district court might choose to depart on its own initiative." Id. at 2187. Consequently, where as here a sentencing court raises for the first time at hearing the making of an upward adjustment on a ground set out in the guidelines, Rule 32's mandate that the court afford defendant "an opportunity to comment upon ... matters relating to the appropriate sentence" is not necessarily meaningless, as the guidelines themselves provide notice to the defendant of the issues about which he may be called upon to comment. 4 Fed.R.Crim.P. 32(a)(1); see United States v. McLean, 951 F.2d 1300, 1302 (D.C.Cir.1991) (holding that Burns does not require district courts to give advance notice of their intention to deny a downward adjustment for acceptance of responsibility recommended in a presentence report); United States v. Palmer, 946 F.2d 97, 100 (9th Cir.1991) (same--without citing Burns ).

Canada challenges the district court's upward adjustment of his sentence on a second ground. According to Canada, the district court's determination that he played a supervisory role in the offense was based on testimony and evidence adduced at the proceedings against his codefendants. Because the district court did not give him notice that it would rely on factual information from these other proceedings, Canada contends that this court's decision in United States v. Berzon, 941 F.2d 8 (1st Cir.1991), requires that we vacate his sentence and remand for resentencing.

In Berzon this court held "that a defendant must be provided with a meaningful opportunity to comment on the factual information on which his or her sentence is...

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