U.S. v. Hayes

• Decision Date: 09 August 1991
• Docket Number: No. 91-3152,91-3152
• Citation: 946 F.2d 230
• Parties: UNITED STATES of America, Appellee, v. David S. HAYES, Appellant. David S. Hayes, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 230

946 F.2d 230

UNITED STATES of America, Appellee, v. David S. HAYES, Appellant David S. Hayes, Appellant.

No. 91-3152.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Aug. 9, 1991.

Decided Oct. 8, 1991.

Thomas W. Corbett, Jr., U.S. Atty., Bonnie R. Schlueter, Paul J. Brysh, Pittsburgh, Pa., for appellee.

Thomas A. Livingston, Pittsburgh, Pa., for appellant.

Before MANSMANN and ALITO, Circuit Judges, and NEALON, District Judge. ^*

OPINION OF THE COURT

NEALON, District Judge.

The appellant, David S. Hayes (Hayes), contends the government breached its plea agreement with him wherein it was stated that the government would not recommend a specific sentence. We agree and will vacate the sentence and remand for further proceedings.

I.

On December 3, 1990, Hayes entered guilty pleas in the United States District Court for the Western District of Pennsylvania to Counts One, Two, Three, and Six of an Indictment. Count One charged him with conspiracy to cause persons to travel in interstate commerce for purposes of criminally sanctioned sexual activity in violation of 18 U.S.C. § 371, Count Two with knowingly transporting an individual under the age of 18 in interstate commerce for the purpose of prostitution in violation of 18 U.S.C. § 2423, Count Three with knowingly and intentionally possessing with the intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1), and Count Six with knowingly and intentionally distributing controlled substances at his residence, thereby subjecting the real property to forfeiture to the United States pursuant to 21 U.S.C. § 853(a). He was sentenced to 54 months of imprisonment under Count One, 36 months of imprisonment under Count Two to run consecutively with Count One, and 24 months of imprisonment under Count Three to run concurrently with Counts One and Two. On Count Six, the court ordered that Hayes' residence and real property be forfeited to the United States.

In this appeal, Hayes challenges the validity of his sentencing contending that: (1) in its Sentencing Memorandum, as well as in oral statements during the sentencing, the government breached that portion of the plea agreement in which it agreed not to recommend a specific sentence; (2) the district court erred in its application of Sections 2G.1.1 and 2G.1.2 of the Sentencing Guidelines; (3) the failure of the district court to consider appellant's diminished capacity as a mitigating factor in determining the applicable Sentencing Guideline was clearly erroneous; (4) no factual basis existed in the record to support his guilty pleas to Counts One and Two; and (5) the forfeiture of the property located in Fairview, Pennsylvania, was improper because the appellant did not own the property at the time the offenses occurred. Inasmuch as the case will be remanded because the plea agreement was breached, the remaining issues need not be addressed.

II.

Briefly stated, the record indicates that sometime in 1985 Hayes began inviting individuals, at least one of whom was a minor, from Pennsylvania and Ohio, to his residence in Pennsylvania for "parties". During these occasions, he provided them with illicit drugs and encouraged them to engage in sexual acts with himself and others, while periodically videotaping these events. Hayes paid money to some of the individuals for their participation.

An indictment was returned by the Grand Jury on August 6, 1990, and, on December 3, 1990, Hayes and the United States Attorney executed a plea agreement ¹ which stated in relevant part:

B. In consideration of and entirely contingent upon the foregoing, the United States Attorney for the Western District of Pennsylvania agrees to the following:

1. The United States Attorney retains the right of allocution at the time of sentencing to advise the sentencing Court of the full nature and extent of the involvement of David in the offenses charged in the Indictment and of any other matters relevant to the imposition of a fair and just sentence.

2. The United States Attorney will make no recommendation as to the specific sentence that the Court should impose, but will provide the United States Probation Office and the District Court with any and all information pertaining to sentencing, including but not limited to all relevant conduct.

(App. 21a) (emphasis supplied). This dispute essentially centers on the United States Attorney's promise to "make no recommendation as to the specific sentence that the Court should impose."

As previously noted, Hayes contests the advocation of sentence proffered in the "Government's Response to Defendant's Presentence Objections and Sentencing Memorandum" [hereinafter Government's Response] as well as statements made by the United States Attorney at the sentencing hearing. In the "Government's Response," it was written:

Therefore, the government advocates a sentence within the standard range of the guidelines as to Count One (a range of 57 to 60 months incarceration) and a lengthy period of incarceration on the nonguideline counts, along with whatever, psychological and/or psychiatric treatment the Court deems appropriate while the defendant undergoes that incarceration.

(Supp.App. 12-13). Likewise, at the sentencing hearing, the United States Attorney on two occasions attempted to influence the length of sentence imposed on Hayes by the district court. In opening his comments, he stated:

Your Honor, the first part of my address will be to emphasize to the Court the nature and seriousness of this offense. Let me make it perfectly clear, Your Honor, that this is a serious offense which, from the point of view of the Government, as mandated by the testimony and the facts gleaned from this investigation, that it mandates lengthy incarceration.

(App. 279a).

Near the end of his statement, he further remarked:

Therefore, Your Honor, in conclusion, based on the nature and seriousness of the crimes involved, the time period which this activity had persisted, and the fact that it wasn't an isolated incident, the fact that this incident and these incidents over the five year period had an impact on various individuals, and on our community at whole, and I would also cite to the Court that there really has not been any objective criteria to establish that any significant rehabilitation or progress has made an impact on Mr. Hayes.

Your Honor, as an advocate of the Government, I must try to insure that this activity would never happen again in our community. And that the citizens of this community be protected. The Government in essence, Your Honor, advocates for a lengthy term of incarceration, with the necessary and appropriate help mandated.

(App. 284a-285a).

III.

This court identified the appropriate steps in analyzing a plea agreement in United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.1989):

This case presents three questions, each with a different scope of review. First, what are the facts of the case, i.e., what are the terms of the agreement and the conduct of the government; second, whether the conduct of the government violated the terms of the plea agreement; and third, what is the appropriate remedy if the court concludes that a violation occurred. The facts of the case, if disputed, are determined by the district court and our review of those findings is limited to a clearly erroneous standard. (Citation omitted). Whether the government's conduct violates the terms of the plea agreement is a question of law and our review is plenary. (Citations omitted). As to the third question, the Supreme Court, in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), concluded that once the court finds a breach of the plea agreement by the government the case must be remanded for either resentencing or withdrawal of appellant's guilty plea. Under these standards, we review this case.

We begin with the premise that the government must honor its bargain with the defendant. ² Moscahlaidis, 868 F.2d at 1361 ("In this circuit, 'the government must adhere strictly to the terms of the bargain it strikes with defendants.' ") (quoting United States v. Miller, 565 F.2d 1273, 1274 (3d Cir.1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978)). In the context of the plea bargaining process, a defendant is negotiating a plea which potentially may lead to a surrender of certain constitutional rights including a meaningful restriction of his liberty. Consequently, courts are compelled to scrutinize closely the promise made by the government in order to determine whether it has been performed. As articulated by the United States Supreme Court, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello, 404 U.S. at 262, 92 S.Ct. at 499. Therefore, the issue presented here is whether the government satisfied its commitment to Hayes. ³ Moscahlaidis, 868 F.2d at 1361. The doctrine that the government must adhere to its bargain in the plea agreement is so fundamental that "even though the government's breach is inadvertent and the breach probably did not influence the judge in the sentence imposed," due process and equity require that the sentence be vacated. United States v. Martin, 788 F.2d 184, 187 (3d Cir.1986) (citing Santobello, 404 U.S. at 262-63, 92 S.Ct. at 499).

Since the Santobello ruling, in which the Supreme Court held that a prosecutor must keep a promise made in a plea agreement, ⁴ this court has confronted the issue in several contexts. In United States v. Crusco, 536 F.2d 21 (3d Cir.1976), the government agreed to "take no position on sentencing" as consideration for the defendant's guilty plea. At the sentencing hearing, the defendant's attorney pleaded for leniency, commenting on the needs of defendant's family and observing...