U.S. v. Flores-Payon

• Decision Date: 05 March 1991
• Docket Number: D,FLORES-PAYO,No. 90-50081,90-50081
• Citation: 942 F.2d 556
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angelefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 556

942 F.2d 556

UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel FLORES-PAYON, Defendant-Appellant.

No. 90-50081.

United States Court of Appeals,

Ninth Circuit.

Submitted March 5, 1991. ^*

Memorandum March 26, 1991.

Order and Opinion Aug. 12, 1991.

Louis S. Katz, San Diego, Cal., for defendant-appellant.

Larry A. Burns, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before CANBY, and RYMER, Circuit Judges, and LEVI, District Judge. ^**

ORDER

The memorandum decision filed on March 26, 1991, 930 F.2d 30, is redesignated an authored opinion, with modification, by the undersigned for publication.

OPINION

LEVI, District Judge:

I. BACKGROUND

On November 20, 1989, defendant Flores-Payon pled guilty to one count of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendant pled guilty pursuant to an agreement under which the government promised: (1) to recommend the lower end of the guideline sentence or the mandatory minimum sentence of five years, whichever was higher; (2) not to seek a superseding indictment charging appellant with possession of a firearm in violation of 18 U.S.C. § 924(c); and (3) to dismiss the remaining counts of the indictment. At the entry of the guilty plea, the government advised the court that "as we calculated it the lower end of the Guidelines is three months higher than the mandatory minimum," which would be 63 months. Reporter's Transcript of Plea, at 15:11-12. Before accepting defendant's plea, the district court informed him of the maximum sentence for the offense to which he was pleading guilty, explained that the court would not be bound by the government's sentencing recommendation, warned defendant that he would not be able to withdraw his guilty plea based on any miscalculation of the guideline sentence by his counsel, and told defendant that the court could depart upward from the guideline range. Flores-Payon acknowledged that he understood these matters.

The presentence report concluded that the sentence range was from 78 to 97 months, and recommended a sentence of 78 months. The offense level calculation was based on the amount of heroin defendant possessed (470 grams), on the fact that one coconspirator possessed a firearm during commission of the offense, and on defendant's acceptance of responsibility. Defendant objected to the presentence report on two grounds relevant to this appeal. First, defendant argued that his offense level should not have been increased for use of a firearm, because he did not know his coconspirator had a gun, and he did not personally possess the weapon. Second, he argued that he played only a minor or minimal role in the offense, and therefore was entitled to a decrease in the offense level. The probation officer filed a response to defendant's objections noting that Flores-Payon had previous knowledge of his co-defendant's possession of the firearm, and contending that because defendant played a coequal role in the offense he was not a minor participant entitled to a decrease in the offense level. At sentencing, the district judge stated that he had read the presentence report, defendant's objections thereto, and the addenda to the report. After hearing argument from Flores-Payon's counsel, the district court overruled defendant's objections, and sentenced him to 78 months.

This appeal raises the following five issues: (1) did the district court sentence defendant in violation of the plea agreement?; (2) did the district court err by failing to find defendant was a minor participant?; (3) did the district court err by enhancing defendant's sentence based on his co-defendant's possession of a firearm?; (4) did the prosecutor engage in misconduct by recommending a sentence beyond the plea agreement?; and (5) did defendant waive certain of these issues failing to raise them in the district court?

II. DISCUSSION

A. Waiver

Defendant argues that he was sentenced in violation of the plea agreement. He contends that both the sentence imposed and statements by the prosecutor at sentencing violated the plea agreement. Defendant did not raise either of these contentions in the district court.

Issues not presented to the trial court cannot generally be raised for the first time on appeal. United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983). This general rule is supported by considerations of fairness and judicial efficiency. See id. ("It would be unfair to surprise litigants on appeal by final decision of an issue on which they had no opportunity to introduce evidence"). In United States v. Edwards, 800 F.2d 878, 884 (9th Cir.1986), we declined to consider the merits of an appellant's claim that his sentence violated an implied right under his plea bargain where the appellant failed to raise the issue at the district court. Disputes concerning the existence and terms of a plea agreement generally pose factual questions for resolution in the district court, see United States v. Sutton, 794 F.2d 1415, 1423 (9th Cir.1986), which we review for clear error. United States v. Helmandollar, 852 F.2d 498, 501 (9th Cir.1988).

We have recognized certain narrow exceptions to the general rule against review on appeal of issues not raised below: "if (1) there are 'exceptional circumstances' why the issue was not raised in the trial court, (2) the new issue arises while the appeal is pending because of a change in the law, or (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court." United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.1990). See United States v. Smith, 905 F.2d 1296 (9th Cir.1990). Further exception may be made when plain error has occurred and an injustice might otherwise result. See Whitten, 706 F.2d at 1012; Fed.R.Crim.P. 52. In any particular case, these limited exceptions may apply to a claim that a plea agreement has been violated.

The Eleventh Circuit shares our view, as evidenced in Edwards, that a claim of violation of a plea agreement generally may not be raised for the first time on appeal. See United States v. Jefferies, 908 F.2d 1520, 1524 (11th Cir.1990). ¹ However, the Third and Tenth Circuits take a different view of this matter and have held that the alleged breach of a plea agreement may be raised for the first time on direct appeal. See United States v. Hand, 913 F.2d 854, 856 n. 2 (10th Cir.1990); United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3rd Cir.1989). With no additional analysis, both Hand and Moscahlaidis merely rely on citation to authorities which are distinguishable from the case before us.

Hand relied exclusively on United States v. Shorteeth, 887 F.2d 253, 255 (10th Cir.1989). Shorteeth involved a direct appeal of a sentence in which the government contended that the defendant had waived her opportunity to object to the district court's consideration of certain information concerning the defendant by failing to raise the claim in the district court. Defendant sought to argue for the first time on appeal that Sentencing Guideline § 1B1.8 ² prohibited consideration of the information. The court stated that "[f]ailure to properly object to breach of a plea agreement at a sentencing hearing ordinarily does not waive the objection. A Guidelines § 1B1.8 objection is closely analogous." Shorteeth, 887 F.2d at 255 (citations omitted.) ³ The court decided to reach the defendant's claim on appeal because defense counsel had objected in the district court to the court's consideration of the particular information on a different ground, because defense counsel was understandably surprised by the district court's reliance on the information, and because "[t]here [was] no indication in the record that either the district judge or counsel was aware of" the Guideline at issue. Id. at 255. By contrast here all counsel, the defendant, and the district court were well aware of the plea agreement. Nor was there unfair surprise, or any objection raised.

In Moscahlaidis, the Third Circuit held on a direct appeal that even if the defendant did not object to a purported breach of the plea agreement at the sentencing hearing, "such failure does not constitute a waiver." 868 F.2d at 1360. In support of its conclusion, the court cited United States v. Benchimol, 471 U.S. 453, 457, 105 S.Ct. 2103, 2105, 85 L.Ed.2d 462 (1985) (Stevens, J., concurring); United States v. Greenwood, 812 F.2d 632 (10th Cir.1987); United States v. Brody, 808 F.2d 944, 947 (2nd Cir.1986); Paradiso v. United States, 689 F.2d 28 (2nd Cir.1982); and United States v. Corsentino, 685 F.2d 48 (2nd Cir.1982). But each of these cases is distinguishable from the case at hand because in each instance the district court had an opportunity to develop a record following the defendant's claim of breach, either in the original proceeding or on collateral review. ⁴

We do not find in the precedents discussed above an articulation of reasons why a litigant should be permitted as a matter of course to raise for the first time on appeal a claim of breach of the plea agreement which could have been raised in the district court. On the contrary, an alleged breach of the plea agreement is precisely the type of claim that a district court is best situated to resolve. The claim is fact-specific, may require an evidentiary hearing or proffer of evidence, and the trial court, having taken the plea and having heard the evidence, should have the first opportunity to rule. A claim of breach of the plea agreement is not generally one which the passage of time may illuminate, but rather is the sort of claim which a defendant ordinarily will recognize immediately and should be required to raise when the alleged breach can still be repaired. Thus, we continue to adhere to the holding in Edwards that claims...