U.S. v. Mooney, 80-2802

• Decision Date: 17 July 1981
• Docket Number: No. 80-2802,80-2802
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Charles MOONEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 482

654 F.2d 482

UNITED STATES of America, Plaintiff-Appellee, v. William Charles MOONEY, Defendant-Appellant.

No. 80-2802.

United States Court of Appeals Seventh Circuit.

Argued May 15, 1981.

Decided July 17, 1981.

James C. Reiher, Perry, First, Reiher & Lerner, S. C., Milwaukee, Wis., for defendant-appellant.

Mel S. Johnson, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before FAIRCHILD and PELL, Circuit Judges, ^* and LARSON, Senior District Judge. ^**

PELL, Circuit Judge.

The defendant, William Mooney, appeals (1) a judgment of the district court sentencing him to the maximum term of imprisonment for armed bank robbery, and (2) an order denying the defendant's motion to reduce the sentence.

I.

The defendant pled guilty to a charge of armed bank robbery, a violation of 18 U.S.C. §§ 2, 2113(a), (d), in exchange for certain commitments by the Government including a promise to recommend that the defendant be sentenced to ten years imprisonment. ¹ After the defendant twice acknowledged that he understood that the court was not bound by the Government's sentence recommendation, the court accepted Mooney's guilty plea. At a subsequent sentencing hearing, the Government recommended, and defense counsel argued in favor of, a term of ten years imprisonment. Upon reviewing the presentence report and considering numerous relevant factors including mitigating circumstances, the district judge sentenced Mooney to the maximum term of 25 years incarceration.

The trial judge sentenced the defendant under 18 U.S.C. § 4205(b)(2) which provides that "the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may be released on parole at such time as the (United States Parole) Commission may determine." The judge indicated that he felt the defendant should be incarcerated for at least ten years, and expressed concern that if sentenced for a lesser term under a different sentencing provision, Mooney might be released in as little as three years. The court reasoned that although the maximum sentence was imposed § 4205(b)(2) would allow the Parole Commission to release the defendant at any time Mooney's health required.

The defendant subsequently filed a motion pursuant to Fed.R.Crim.P. 35 to reduce his sentence to ten years. After the Government filed a motion opposing the defendant's motion, the defense filed a reply brief attacking the Government's position as a breach of the plea agreement. The district court thereafter denied the motion for reduction and noted that it need not decide whether the Government's opposition to the Rule 35 motion breached the plea agreement because the court had not been influenced by the Government's position.

II.

The defendant urges this court to exercise its supervisory power to rule that, in the absence of new factors, a prosecutor's promise to recommend a particular sentence forbids the Government from thereafter opposing a defendant's Rule 35 motion to reduce a sentence imposed in excess of that recommended. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the defendant agreed to plead guilty in exchange for the prosecutor's promise to make no recommendation as to sentence. At the sentencing hearing, however, a different prosecutor recommended that the defendant receive the maximum penalty. The Court held that the Government's change in position, while probably inadvertent, could not be excused because "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." Id. at 262, 92 S.Ct. at 499. While indicating that it did not doubt the district court's statement that it was uninfluenced by the prosecutor's recommendation, the Court nevertheless concluded that the interests of justice, and the recognition of prosecutorial duties in relation to plea bargaining, would be best served by remanding the case for reconsideration. ² Id. at 262-63, 92 S.Ct. at 498-99.

In United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973) (per curiam), the prosecutor agreed, inter alia, not to oppose the defendant's request for probation if the defendant pled guilty. Although the Government did not oppose probation at the sentencing hearing, the district judge refused to grant probation. At a second hearing to consider the defendant's request to reduce his sentence, however, the prosecutor vigorously opposed the defendant's request for probation. The appellate court ruled that both the sentencing and Rule 35 proceedings "were integral parts of the sentencing process in this case. Surely when Ewing obtained the Government's promise not to oppose probation in exchange for his plea of guilty, he did so in the expectation that the benefits of that promise would be available throughout the proceedings relevant to the determination of his sentence." Id. at 1143. The court remanded the case to allow the Rule 35 motion to be heard by a different judge without Government opposition to probation.

The defendant urges that Ewing controls this case, and argues that this court must either accept or reject Ewing in deciding the instant case. We disagree. Ewing by no means sets up a per se rule which would extend prosecutors' obligations regarding sentencing recommendations automatically to Rule 35 proceedings. In fact, cases subsequent to Ewing have interpreted it narrowly. In United States v. Johnson, 582 F.2d 335, 337 (5th Cir.) (per curiam), cert. denied, 439 U.S. 1051, 99 S.Ct. 732, 58 L.Ed.2d 711 (1978), for example, the Fifth Circuit cautioned that Ewing "does not give the defendant the right to present an unopposed Rule 35 motion." While the facts of Johnson are distinguishable from those of the present case Johnson had misrepresented information in his Rule 35 motion the court nonetheless interpreted its prior decision to mean that "(t)he government violates Ewing only when its opposition violates the essence of the plea bargain." Id.

A plea bargain is a contract, the terms of which necessarily must be interpreted in light of the parties' reasonable expectations. United States v. Arnett, 628 F.2d 1162, 1164-65 (9th Cir. 1979). The resolution of each case depends upon the essence of the particular agreement and the Government's conduct relating to its obligations in that case. Thus, Ewing's finding that the sentence and the Rule 35 "proceedings were integral parts of the sentencing process in this case," 480 F.2d at 1143 (emphasis added), does not control the inquiry in the case at bar.

Ewing involved a promise that the Government would not oppose the defendant's request for probation, not that it would recommend a specific sentence. Thus, our case is more like Bergman v. Lefkowitz, 569 F.2d 705 (2d Cir. 1977), wherein the defendant pled guilty in exchange for the state prosecutor's promise to recommend that the defendant receive no sentence beyond that already imposed in a federal case. Although the prosecution did make the recommendation at sentencing, the state judge sentenced the defendant to a one-year term to run consecutive to the federal sentence. Subsequently, the state prosecutor opposed the defendant's motion to reduce his sentence.

In Bergman, as here, the court warned that it was not bound to follow the prosecutor's sentence recommendation. Bergman held that the agreement to recommend no additional sentence did not require the prosecutor to join in any appeal or postconviction proceedings to attack the sentence imposed. The court reasoned that the Government was bound only not to cast doubt on its recommendation, and ruled that the prosecutor's opposition to the motion to reduce the sentence did not violate that obligation. Id. at 716. Bergman found Ewing inapplicable: "This case is thus readily distinguishable from United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973), where the Government agreed not to oppose a probated sentence and then did precisely that on a Rule 35 motion." 569 F.2d at 716. ³

Considering the particular facts of the instant case as a whole, we do not regard the Government's conduct to have violated the specific terms of the plea agreement. As in Bergman, the plea agreement in this case contains no explicit promise not to oppose a Rule 35 motion to reduce the defendant's sentence. It does not appear that the parties actually contemplated this situation. In the absence of any indication that the parties expected the Government not to oppose a Rule 35 motion, we would hesitate to imply such a condition. The prosecutor honored his commitment to make the agreed sentence recommendation at the sentencing hearing. The short motion in opposition to the defendant's Rule 35 motion essentially recounted the details of the sentencing proceeding. The defendant complains that the prosecutor's position was not neutral, as the Government contends, however, particularly because of the Government's inclusion of the statement that "Mooney's sentence is lawful, appropriate, not excessive, justified, and as such, his motion should be denied." We are not prepared, however, to say that this plea agreement necessarily required the Government to remain wholly neutral. Additionally, while this language may perhaps be characterized as strong, it must be viewed as what it is one sentence in an otherwise essentially neutral restatement of the events of the sentencing hearing. ⁴

It would be inappropriate to prohibit the Government from ever opposing a Rule 35 motion for sentences which exceed the recommendation agreed upon in the plea bargain because matters could occur in the interim which might make the earlier recommendation inappropriate. Conversely, neither do we necessarily sanction Government opposition in such cases. A slight change in facts could well mandate the opposite result. Thus, in future cases of this nature, the Government would proceed with...