U.S. v. Frazier, 02-1824.

• Decision Date: 18 August 2003
• Docket Number: No. 02-1824.,02-1824.
• Citation: 340 F.3d 5
• Parties: UNITED STATES, Appellee, v. Thomas FRAZIER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

340 F.3d 5

UNITED STATES, Appellee, v. Thomas FRAZIER, Defendant, Appellant.

No. 02-1824.

United States Court of Appeals, First Circuit.

Heard June 3, 2003.

Decided August 18, 2003.

Bruce Green, for appellant.

Kevin P. McGrath, Assistant United States Attorney, with whom Heidi E. Breiger, Assistant United States Attorney, and Michael J. Sullivan, United States Attorney, were on brief, for appellee.

Before SELYA and LIPEZ, Circuit Judges, and PONSOR, U.S. District Judge.^*

LIPEZ, Circuit Judge.

In securing a plea agreement, the government will frequently promise to forego advocacy of an upward departure at a defendant's sentencing. The government made such a promise in this case. To resolve this appeal, we must determine whether the government, consistent with that promise, could then inform a panel of this court during a prior appeal that the district court "should be free" on resentencing to upwardly depart sua sponte if the district court determined that the defendant's criminal history category under the applicable sentencing guideline, see U.S.S.G. § 4A1.3, under-represented the seriousness of his criminal history. The line between "information" and "advocacy" can be a fine one. Although the government's clumsily-composed brief in the prior appeal was regrettable, we conclude that the government did not cross the line. We therefore affirm the sentence imposed by the district court.

I.

In September 1997, defendant-appellant Thomas Frazier was indicted on two counts of distributing cocaine base, see 21 U.S.C. § 841(a)(1) (2002), and one count of conspiracy to distribute cocaine base, see id. § 846. Pursuant to a written plea agreement executed in May 1999, Frazier agreed to plead guilty to one substantive count specifying a transaction that took place on July 17, 1997. In exchange for Frazier's guilty plea, the government agreed to dismiss the conspiracy charge and the remaining substantive count. As for sentencing, the plea agreement provided as follows:

The U.S. Attorney and Defendant agree that there is no basis for a departure from the sentencing range established by the United States Sentencing Guidelines [except that Defendant reserves the right to argue for a downward departure based upon his family circumstances].¹ Accordingly, neither the U.S. Attorney nor Defendant will seek a departure on any ground from the Sentencing Guidelines. The U.S. Attorney expressly reserves the right to seek an upward departure pursuant to U.S.S.G. § 4A1.3 should any of Defendant's prior state convictions be vacated subsequent to the execution of this Agreement.

The agreement also reserved the U.S. Attorney's right to "argue the correctness of the Defendant's sentence and the manner in which the District Court determines it," should Frazier pursue any appeal.

A subsequent Pre-Sentence Report ("PSR") prepared by the U.S. Probation Office revealed that Frazier was a leader in a Worcester, Massachusetts, drug gang called the Vice Lords, and that he had a prior August 1995 drug trafficking conviction and an August 1997 assault and battery conviction. As a result, at Frazier's November 1997 sentencing hearing, and over his objection, the district court determined that Frazier was a "career offender," see U.S.S.G. § 4B1.1, and, accordingly, assigned to him a criminal history category ("CHC") of VI. Since the court determined that Frazier was a career offender with the highest possible criminal history category, it did not need to determine whether Frazier's CHC under-represented the seriousness of his criminal history. Also as a result of the career offender designation, the district court did not need to consider Frazier's objection to the PSR's role-in-the-offense calculation, see U.S.S.G § 3B1.1, since it would not have affected the sentence in any event.

Frazier appealed his sentence, arguing that the district court erred in its career offender determination, and asking us to reverse that determination and remand the case "for resentencing by the District Court after consideration of the Defendant's Role in the Offense objection." In response, the government filed a motion for remand, conceding that the district court had erred in its career offender calculation. Frazier's August 1997 assault and battery conviction — upon which the career offender calculation was partially based — occurred after the July 1997 offense for which Frazier was being sentenced, and therefore should not have been considered. The government's brief in support of its motion for remand contained the following text at the end:

Given that the erroneous determination of the defendant as a career offender impacted the defendant's GSR [guideline sentencing range], the case should be remanded for resentencing. As the defendant points out in his brief, at resentencing, the district court would need to resolve the defendant's objection to the PSR's role adjustment. On resentencing, moreover, the district court should be free to consider the applicability of U.S.S.G. § 4A1.3, which provides for upward departures when a sentencing court determines that the defendant's CHC under-represents the seriousness of the defendant's criminal history.

The boldface and italicization in the above-quoted excerpt is as it appeared in the original. Frazier did not object at that time to the form or substance of the government's remand motion. Upon consideration of the parties' submissions, a prior panel of this court agreed that the district court had erred and issued an order on November 9, 2001, which stated:

We therefore allow the government's motion, vacate the judgment [of the district court] and remand the case for resentencing. Upon remand, the district court should resolve the defendant's objection to the two-level adjustment for his role in the offense. We take no view whether the circumstances of this case might warrant an upward departure under [U.S.S.G.] § 4A1.3.

Frazier did not seek modification of this order.

On May 3, 2002, the district court convened a resentencing hearing in accordance with our mandate. In recalculating Frazier's CHC, the court concluded that Frazier had eight criminal history points, placing him in CHC IV. The court added:

It is also appropriate for me to note, for the record, that the Mandate from the First Circuit Court of Appeals did call my attention, although it took no stand, on the possibility that this case might warrant an upward adjustment under Guideline 4A1.3.

The court then stated, prior to soliciting any comments from counsel, that it was "inclined" to depart upward and assign a CHC of V because, in the court's view, there was reliable information in the PSR indicating that a CHC of IV inadequately reflected the seriousness of Frazier's criminal history.

The court then solicited comments from counsel. The Assistant United States Attorney's ("AUSA") immediate response was, "Your honor, I did not make that motion," but added that "I certainly would be happy to provide the Court with additional briefing in support of such a finding." Counsel for Frazier then addressed the court, stating that it would be a breach of the plea agreement for the government to advocate for an upward departure:

I would be concerned if my sister actively provides information or a briefing in support of the Court's inclination mainly because the plea agreement that we have with the government says that it will not seek — and I assume that that means will not support — an upward departure in this case. So I would suggest that if that were to occur, that that would constitute a breach of the plea agreement.

Defense counsel also stated that he had not anticipated having to argue against an upward departure, and therefore requested a continuance to brief the issue. The court granted the request and set a briefing schedule. The AUSA then indicated that she would go back and check the plea agreement: "I will review it and certainly will take no action to breach an agreement we've already reached."

Three weeks after the hearing, Frazier filed in the district court a "Motion for Specific Performance of Plea Agreement's Terms and Memorandum in Opposition to Upward Departure Pursuant to Section 4A1.3." In this filing, Frazier contended for the first time that the government had breached its plea agreement while the original sentence was under appeal: "While the government has not explicitly violated the plea agreement, it did perform an end run around it by arguing superfluously in its motion for remand that the district court could consider a 4A1.3 upward departure upon resentencing." In its response to Frazier's motion, the government stated that it would not advocate for a departure at resentencing. It also stated that its motion for remand "set out an accurate legal principle indicating for the Court of Appeals the limits of its mandate," and that this did not constitute a breach of the plea agreement.

At the continued resentencing hearing on May 28, 2002, the district court rejected Frazier's claim that the government had breached the plea agreement: "Simply the mention in [the government's] papers filed in the First Circuit Court of Appeals that 4A1.3 was applicable doesn't indicate to me that there has been any breach or any request by the government that I upwardly [depart]." The court therefore denied Frazier's motion for specific performance.

The district court then acted on its inclination to upwardly depart. For reasons detailed below, see Part IV.B, the district court determined that Frazier's criminal history category was under-represented by his otherwise applicable CHC of IV. The court concluded that a CHC of V was appropriate, placing Frazier in a sentencing range of 120 to 150 months, rather than category IV's range of 100 to 125 months. The government made no recommendation as to sentence within that range, and the district court sentenced Frazier to a 138-month term of incarceration. This appeal ensued, with...