U.S. v. Cunavelis

• Decision Date: 21 July 1992
• Docket Number: No. 1614,D,1614
• Citation: 969 F.2d 1419
• Parties: UNITED STATES of America, Appellee, v. Anne E. CUNAVELIS, a/k/a Kiki, Defendant-Appellant. ocket 92-1092.
• Court: U.S. Court of Appeals — Second Circuit

Page 1419

969 F.2d 1419

UNITED STATES of America, Appellee, v. Anne E. CUNAVELIS, a/k/a Kiki, Defendant-Appellant.

No. 1614, Docket 92-1092.

United States Court of Appeals Second Circuit.

Argued June 2, 1992.

Decided July 21, 1992.

Karen Rush Shingler, Burlington, Vt., for defendant-appellant.

Thomas D. Anderson, Asst. U.S. Atty., Burlington, Vt. (Charles A. Caruso, U.S. Atty., David V. Kirby, Asst. U.S. Atty.), for appellee.

Before: OAKES, Chief Judge, NEWMAN and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Pursuant to a plea agreement under Fed.R.Crim.P. 11(e)(1)(C), Anne Cunavelis pled guilty to one count of a three-count indictment. In return for her guilty plea, the Government agreed to a four-level reduction in whatever Guidelines offense level would later be determined by the district court.

At sentencing, the District Court for the District of Vermont, Fred I. Parker, Chief Judge, held that the plea agreement bound him to reducing Cunavelis's Guidelines offense level by exactly four levels, no more and no less. In setting the offense level, Chief Judge Parker imposed a two-level upward adjustment for obstruction of justice based on his earlier finding that Cunavelis had testified untruthfully before him at a suppression hearing.

On appeal, Cunavelis argues that the district court erred (1) by holding that it lacked discretion to reduce her Guidelines offense level more than the four levels called for by the plea agreement, and (2) by automatically imposing an upward adjustment for obstruction of justice. We agree that Fed.R.Crim.P. 11(e)(1)(C) bound the district court to a four-level reduction but remand for reconsideration of the upward adjustment for obstruction of justice.

BACKGROUND

Following her arrest by DEA agents for distributing large amounts of cocaine, Anne Cunavelis consented to a search of her apartment. That search produced cash, drug paraphernalia, and approximately 84 grams of marijuana. She also made inculpatory statements to DEA agents during the search.

Cunavelis was indicted for conspiracy to distribute cocaine, distribution of cocaine, and travelling in interstate commerce to facilitate an illegal enterprise. She moved to suppress her inculpatory statements on the ground that the DEA agents did not advise her of her Miranda rights. She also moved to suppress evidence seized during the warrantless search of her apartment as obtained in violation of her Fourth Amendment rights.

Chief Judge Parker conducted a suppression hearing at which Cunavelis and four DEA agents testified. Cunavelis testified that she was not given her Miranda warnings and that she was coerced into letting the DEA agents search her apartment. The DEA agents contradicted Cunavelis, testifying that they did inform her of her Miranda rights and that they did not browbeat her to extract her consent to search the apartment. Chief Judge Parker denied Cunavelis's suppression motions, "find[ing] that [her] testimony was not credible, or truthful, in several regards." Cunavelis later executed a plea agreement with the Government pursuant to which she agreed to plead guilty to the conspiracy count and cooperate with the Government. In return, the Government agreed to dismiss the other two counts and to make a motion for a downward departure from the applicable Guidelines range pursuant to Guidelines section 5K1.1. With respect to the degree of downward adjustment, the plea agreement provided:

The United States and ANNE CUNAVELIS agree, pursuant to Federal Rules of Criminal Procedure 11(e)(1)(C), that the final guideline offense level as found by the Court be reduced by four levels and that the defendant be sentenced within the corresponding guideline range. The sentence she receives within this range as well as the imposition of a fine and a term of supervised release is within the sole discretion of the sentencing court.

After the plea, the Probation Department prepared a Presentence Report ("PSR") that calculated her base offense level at 34, reflecting offense conduct involving at least 15 kilograms of cocaine. The PSR recommended that the offense level be increased by two levels for obstruction of justice (pursuant to section 3C1.1 of the Guidelines) based on Cunavelis's untruthful testimony at the suppression hearing. With a recommendation for a two-level downward adjustment for acceptance of responsibility, the PSR concluded that the final offense level should be 34 (before the four-level decrease required by the plea agreement).

Cunavelis objected to the PSR on two grounds: (1) that the amount of cocaine attributed to her was excessive, and (2) that the two-level enhancement for obstruction of justice was not justified. She also argued at sentencing that, although the plea agreement bound her and the Government to a four-level reduction for substantial assistance, the district court nevertheless had discretion to depart further since it was not a party to the agreement.

The district court conducted an evidentiary hearing to determine how much cocaine should be attributed to Cunavelis and concluded that she was responsible for at least 15 kilograms, resulting in a base offense level of 34. The district court then added two levels for obstruction of justice, holding that the enhancement "naturally follow[ed]" and was "required" by the court's rejection of Cunavelis's testimony at the suppression hearing. Finally, Chief Judge Parker rejected Cunavelis's argument that he could depart further than the four-level reduction for substantial assistance called for by the plea agreement, holding that Rule 11(e)(1)(C) required him to implement the parties' agreement.

On appeal, Cunavelis argues that the district court erred by concluding that it was without discretion to depart further than the four levels required by the plea agreement and by imposing a two-level enhancement for obstruction of justice.

DISCUSSION

Four-Level Reduction for Substantial Assistance

Cunavelis cites several cases for the proposition "that once the government has moved for a downward departure based upon substantial assistance ... it is within the sentencing court's authority to exercise its discretion in determining the appropriate extent of departure." See, e.g., United States v. Ah-Kai, 951 F.2d 490 (2d Cir.1991); United States v. Pippin, 903 F.2d 1478 (11th Cir.1990). We agree with this non-controversial statement and the cases from which it is distilled--as far as they go. However, they are simply inapplicable to plea agreements governed by Fed.R.Crim.P. 11(e)(1)(C).

The Guidelines emphatically state that "[t]he rules set forth in Fed.R.Crim.P. 11(e) govern the acceptance or rejection of [plea] agreements." U.S.S.G. Ch. 1, Pt. A., intro. comment 4(c) (Nov. 1991). Accordingly, Rule 11--not Guidelines section 5K1.1--controls.

Rule 11 provides in relevant part:

(e) Plea Agreement Procedure.

(1) In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:

(A) move for dismissal of other charges; or

(B) make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or

(C) agree that a specific sentence is the appropriate disposition of the case.

Fed.R.Crim.P. 11(e) (1991).

The Rule further explains that "[i]f the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement, .... If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement." Id. Thus, the rule plainly contemplates that plea agreements executed pursuant to subdivision (e)(1)(A) or (C)--in contrast to the precatory nature of agreements made under subdivision (e)(1)(B)--are binding on the district court. The district court may accept or reject an (A) or (C) plea, but it may not modify it. See United States v. Fernandez, 960 F.2d 771, 773 (9th Cir.1992) (per curiam); see also United States v. Bohn, 959 F.2d 389, 391 (2d Cir.1992) ("[i]f [district judge] accepts the bargain ... he must conform the sentence to that bargain"); Fed.R.Crim.P. 11 advisory committee's note (1991) ("critical to a type (A) or (C) agreement is that the defendant receive the contemplated charge dismissal or agreed-to sentence").

Our reading of the Rule is supported by the history of its adoption:

The legislative history of 11(e)(3) shows that Congress wished to preclude a district court from accepting a plea agreement which provides for a specific sentence and then imposing a more lenient sentence than that provided for in the plea agreement. The version of 11(e)(3) proposed by the Supreme Court in 1974 stated that "the court shall inform the defendant that it will embody in the ... sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement." The House Judiciary Committee then deleted the language "or another disposition more favorable to the defendant than that provided for in the plea agreement," and the House affirmed the committee's action by rejecting on the floor an amendment offered to restore the Supreme Court's version of the rule. The Senate accepted the House's version of the...