U.S. v. Peterson, 99-2042

• Decision Date: 12 September 2000
• Docket Number: No. 99-2042,99-2042
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALVIN PETERSON, SR., Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1167

225 F.3d 1167 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALVIN PETERSON, SR., Defendant - Appellant.

No. 99-2042

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 12, 2000

Opinion of June 6, 2000 Withdrawn

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-98-228 LH)

Judith A. Rosenstein, Assistant Federal Public Defender, Albuquerque, New Mexico, for Plaintiff-Appellant.

Norman C. Bay, Assistant United States Attorney (John J. Kelly, United States

Attorney, with him on the brief), Albuquerque, New Mexico, for Defendant-Appellee.

Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and EBEL, Circuit Judge.

ORDER

TACHA, Circuit Judge.

These matters are before the court on appellants' petition for rehearing with suggestion for rehearing en banc. Upon review, the panel grants rehearing. Accordingly, the court's opinion of June 6, 2000 is withdrawn and is replaced by a revised published opinion which is attached to this order.

The suggestion for rehearing en banc was transmitted to all of the judges of the court who are in regular active service as required by Fed. R. App. P. 35. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the suggestion is denied.

OPINION

Pursuant to a plea agreement with the United States, Defendant-Appellant Alvin Peterson, Sr. pled guilty on August 12, 1998 to one count of aggravated sexual assault of a child in violation of 18 U.S.C. §§ 1153, 2241(c), and 2245(2)(A). Peterson appealed his sentence on the ground that the United States breached the terms of the plea agreement during the sentencing hearing by opposing his motion for a downward departure from the sentencing guidelines. After hearing oral argument in this case, we applied a plain error standard of review and affirmed Peterson's sentence. Peterson has now filed a petition asking the panel and the en banc court to rehear the case. We GRANT Peterson's petition for rehearing. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and, applying a de novo standard of review, AFFIRM.

I. BACKGROUND

Peterson's plea agreement provides, in pertinent part, that the United States "will not oppose a downward departure if there is a good faith basis for a downward departure." After entering into the plea agreement but prior to the sentencing hearing, Peterson filed a motion for a downward departure. In the motion, Peterson argued for a downward departure on a number of grounds: (1) the offense to which the defendant pleaded guilty was aberrant behavior; (2) the defendant's age and ill health; (3) the defendant's post-arrest rehabilitation; (4) the attitude and concerns of the victim; and (5) the defendant's amenability to treatment and potential for obtaining treatment.

The government did not file a response to the motion for a downward departure. At the sentencing hearing, however, the judge asked the prosecutor if he had anything to say with respect to the motion. The prosecutor then made a number of comments. First, the prosecutor asked the district court to take judicial notice of three paragraphs in the Presentence Report (PSR) that provided additional information about the offense to which Peterson pleaded guilty and other similar offenses for which Peterson was not convicted as a result of the plea bargain.

Second, the prosecutor stated that Peterson had cited no case law to support his age and health argument. The prosecutor further remarked: "As the Court is aware, [age and health are] an issue with many defendants who come before this Court . . . ."

Third, the prosecutor agreed that Peterson required post-arrest treatment and asked the district court to take judicial notice of the recommendation in the PSR that Peterson be imprisoned at Butner Federal Correctional Institution ("Butner FCI"). The prosecutor explained that Peterson would be eligible to participate in the sex offender treatment program at Butner FCI regardless of the duration of the sentence imposed by the court.

Fourth, the prosecutor stated that the government did not take a position with respect to either the issue of the victim's wishes or Peterson's amenability to treatment. The prosecution added:

[I]n this case, as the Court is aware, based upon a review of the presentence report, Mr. Peterson was looking at an amount of time from 235 to 293 months if he had gone to trial in this case. As the court is aware, the guidelines provide 97 to 121 months for the offense he pled to, Your Honor. This case, like many of the child sexual abuse cases that I prosecute, they're very hurtful, Your Honor, to both the victim and the defendant, Your Honor.

This prosecutor is not a counselor or a psychologist; however, based upon my discussion with other counselors, Your Honor, one of the first steps in rehabilitation is acceptance of responsibility. Mr. Peterson has accepted responsibility; however, this was in the last offense that's set forth in the indictment and set forth in the presentence report is this occurred until the victim was ten years old, Your Honor. Just like the Court to be aware of that. In addition to that Your Honor, there may be forgiveness; however, there are consequences to one's acts.

Peterson did not object to the prosecutor's statements during the sentencing hearing.¹ The court concluded that a downward departure was not appropriate and sentenced Peterson to 97 months' imprisonment, followed by three years of supervised release. At no time did the district court express the view that the government had opposed Peterson's Motion for Downward Departure. On appeal, Peterson alleges that the prosecutor breached the plea agreement when he commented on the downward departure motion.

II. DISCUSSION

This circuit has held that a defendant does not waive his right to appeal a claim that the government has breached a plea agreement when he fails to object to the breach before the district court.² See United States v. Belt, 89 F.3d 710, 712-13 (10th Cir. 1996); United States v. Hand, 913 F.2d 854, 856 n.2 (10th Cir. 1990); see also United States v. Shorteeth, 887 F.2d 253, 255 (10th Cir. 1989) (stating in dicta that the "[f]ailure to properly object to breach of a plea agreement at a sentencing hearing ordinarily does not waive the objection"). Thus, a claim that the government has breached a plea agreement is a question of law that we review de novo. United States v. Courtois, 131 F.3d 937, 938 & n.2 (10th Cir. 1997); United States v. Robertson, 45 F.3d 1423, 1442-43 (10th Cir. 1995).

We apply a two-step analysis to determine if the government breached a plea agreement: "(1) we examine the nature of the government's promise; and (2) we evaluate this promise in light of the defendant's reasonable understanding of the promise at the time the guilty plea was entered." United States v. Brye, 146 F.3d 1207, 1210 (10th Cir. 1998). Principles of general contract law guide our analysis of the government's obligations under the agreement. See id. Thus, in assessing whether the government has breached the agreement, we look to the express terms of the agreement and construe any ambiguities against the government as the drafter of the agreement. See id.; United States v. Cerrato-Reyes, 176 F.3d 1253, 1264 (10th Cir. 1999). This court also has explained that:

[T]he government breaches an agreement not to oppose a motion when it makes statements that do more than merely state facts or simply validate facts found in the Presentence Report and provides a legal characterization of those facts or argues the effect of those facts to the sentencing judge.

Brye, 146 F.3d at 1211 (internal citation and quotations omitted).

A. Aberrant Behavior

Peterson argues that the prosecution improperly opposed his aberrant behavior claim by referring to evidence of his other sexual offenses. The government qualified its promise in the plea agreement not to oppose a downward departure motion by requiring that any such motion be made in good faith. In other words, the government implicitly reserved the right to oppose a motion for a downward departure that was not made in good faith. In this case, the PSR shows that the sexual assault to which Peterson pleaded guilty was not an isolated incident, but rather that Peterson had committed many sexual assaults on minors throughout his life. Based on the evidence contained in the PSR, we conclude that Peterson did not make his aberrant behavior claim in good faith. This court therefore finds that the United States did not breach the plea agreement when it called the court's attention to evidence in the PSR of other sexual abuse by Peterson.

B. Age and Ill Health

Peterson argues that the prosecutor breached the plea agreement when he stated that (1) Peterson had cited no case law to support the argument that age and health concerns would warrant a downward departure and (2) many defendants have age and health concerns. We disagree. Even if the prosecutor's comments constituted legal argument, the plea agreement permitted him to make those comments if he believed that Peterson's argument was not made in good faith. We construe the prosecutor's comments to reflect such a belief.

Nothing in the record indicates that Peterson's age and health were of unusual concern. Indeed, the PSR notes that Peterson is 61, suffers from diabetes and hypertension, and has been treated for depression and anxiety. The PSR then states that Peterson's "physical and mental condition are not extraordinary to the extent that a downward departure is justified." Based on the record before us, we conclude that Peterson did not make his age and ill health argument in good faith. We therefore find that the prosecutor did not breach the plea agreement when he opposed a downward departure on those grounds.

C. Post-Arrest Rehabilitation

Peterson argues that the prosecutor, in effect, improperly opposed...