U.S. v. Tilley, 91-1550

• Decision Date: 03 March 1992
• Docket Number: No. 91-1550,91-1550
• Citation: 964 F.2d 66
• Parties: UNITED STATES of America, Appellee, v. Ronald E. TILLEY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 66

964 F.2d 66

UNITED STATES of America, Appellee, v. Ronald E. TILLEY, Defendant, Appellant.

No. 91-1550.

United States Court of Appeals First Circuit.

Heard March 3, 1992.

Decided May 15, 1992.

Dana A. Curhan, Boston, Mass., by Appointment of the Court, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and James E. McCarthy, Asst. U.S. Atty., Portland, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, CAMPBELL and WEIS, Jr., ^* Senior Circuit Judges.

TORRUELLA, Circuit Judge.

This is an appeal from the denial of a motion to withdraw a guilty plea and from a sentence imposed pursuant to the United States Sentencing Guidelines ("U.S.S.G.") in the United States District Court for the District of Maine. As we find no error in the determinations of the district court, we affirm.

FACTS

Appellant, Ronald Tilley ("Tilley") was charged in a two count indictment with (1) making a false statement in connection with the acquisition of a firearm in violation of 18 U.S.C. §§ 922(a)(6) and 924(a); and (2) illegal receipt of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

On July 6, 1990, Tilley signed an Agreement to Plead Guilty and Cooperate as to count II. Pursuant to that agreement, Tilley consented to withdraw two motions to suppress dated May 24, 1990. In addition, the information Tilley provided pursuant to this agreement would be covered by a grant letter of immunity and would not be used in calculating his guideline sentence. However, in the event that the court rejected the agreement, or Tilley either withdrew his guilty plea or breached the agreement, the Government would be free to use any information Tilley provided against him.

In exchange, the Government agreed that if all the terms and conditions were met, the maximum sentence the court could impose was the maximum provided for a Level 10 offense. Should Tilley fulfill his obligations, the Government would make a non-binding recommendation that he receive a two-level reduction for acceptance of responsibility. On the other hand, if the court determined that the appropriate sentence should exceed the agreed upon level, Tilley would be permitted to withdraw his guilty plea.

Tilley alleges that pursuant to the agreement to cooperate, he called Aaron Harvey and arranged to purchase cocaine. He recorded the conversation with Harvey. Pursuant to that conversation Tilley was sent to the Harvey residence on July 26, 1990, where he made and recorded a controlled purchase of cocaine.

Subsequently, according to Harvey and two other witnesses, Tilley returned to the Harvey residence, threatened him at gun point, and took an undetermined amount of narcotics.

Tilley entered a plea of guilty on October 5, 1990. At the Rule 11 hearing, appellant, in response to detailed questioning from the district judge, acknowledged that he was aware: (1) that he was waiving his constitutional right to a speedy and public trial by jury with the assistance of counsel; ¹ (2) that the maximum sentence which could be imposed under the count to which he was pleading guilty was 10 years of imprisonment and a $250,000 fine; ² and (3) that the court had not yet decided on the sentence to be imposed. ³ Tilley also affirmed that he had discussed all of the facts of the case with his attorney; ⁴ that no threats or inducements had been made to ensure a guilty plea; ⁵ and that his decision was entirely free and voluntary. ⁶

On February 8, 1991, the Government elected, pursuant to the agreement, to bring a breach of the plea agreement by Tilley to the court's attention, and to withdraw its commitments to certain ceilings in its recommendations for sentencing. The Government alleged that Tilley had perjured himself before a grand jury and at another criminal trial.

On the morning of April 10, 1991, when the court was due to sentence Tilley, he moved to withdraw his guilty plea. He claimed that a fair and just reason to grant his request existed because he could defend the charge on the basis of duress. ⁷ In addition, he argued that his cooperation with the Government had collapsed and thus the chance that he would be shown leniency was considerably reduced. ⁸ The Government offered evidence showing that Tilley failed to testify truthfully both before a grand jury and at another criminal trial, and alleged a breach of the plea agreement. The plea agreement read in pertinent part

7. If defendant should fail in any way to cooperate fully, honestly, truthfully and completely, then the United States may, at its discretion, be released from its commitments as set forth in this Agreement.... In the case of a failure to fully cooperate by the defendant, the United States may, in its discretion, choose either to be released from its commitments under this agreement and declare this agreement null and void, or, it may bring the failure to fully cooperate to the attention of the court and recommend at sentencing that the defendant be sentenced to the maximum penalty permitted under this agreement pursuant to paragraph 1.

Agreement to Plead Guilty and Cooperate, p. 5.

Tilley denied all allegations against him, and suggested that the only reason the Government wanted out of the agreement was because their prosecution of Harvey failed.

The district court heard testimony from three witnesses and from Tilley himself at the sentencing hearing on April 10, 1991. Subsequently, the court found that the only explanation advanced for the tardy effort to withdraw the guilty plea was Tilley's fear of the consequences of having breached his plea agreement. In addition, the court concluded that the six month delay between entry of the guilty plea and Tilley's effort to withdraw it "belies any notion that some mistake arising from haste or confusion occurred at the time of the guilty plea." ⁹ Also, in the district court's view, the defense of duress which Tilley wanted to assert was "not a legally cognizable defense." ¹⁰ Being satisfied that Tilley's guilty plea was voluntary, and that the Government had not breached the plea At a hearing on May 31, 1991, the sentencing court reiterated its findings, after reading the Pre-Sentence Investigation Report ("PSI"), that Tilley breached the plea agreement. The court assigned an offense level of 9 pursuant to U.S.S.G. § 2K2.1(a), and denied a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a). The court also found that a two-level increase was in order pursuant to U.S.S.G. § 3C1.1 because the court found that Tilley impeded the administration of justice during the investigation, presentence and sentencing of the offense. Tilley's criminal history category was IV which together with a base offense level of 11 produced a guideline range of imprisonment of 18 to 24 months. In addition, a memorandum from the Department of Probation pointed out that:

agreement, the court denied Tilley's motion to withdraw on April 23, 1991. ¹¹

If the Court finds that reliable information indicates that the defendant's criminal history category does not adequately reflect the seriousness of his past criminal conduct or the likelihood that the defendant will commit other crimes, the Court pursuant to § 4A1.3, may consider imposing a sentence departing from the otherwise applicable Guideline range.

See Memorandum by William Beck, January 17, 1991.

Accordingly, the district court concluded that Tilley's criminal history category significantly under-represented the seriousness of his criminal past and thus, departed upward from the guideline term for imprisonment of 18 to 24 months to impose a sentence of 54 months. Fines were waived, but a $50 felony assessment was imposed. ¹²

Tilley appeals from the sentenced imposed and the denial of his motion to withdraw his guilty plea.

LEGAL ANALYSIS

I. Violation of Plea Agreement

Appellant asserts that his breach of the plea agreement, if any, was minor. He further contends that the Government itself violated both the spirit and the letter of the plea agreement when it publicized his cooperation in the local newspaper. ¹³ Thus, according to appellant, the district court should have enforced the terms of the plea agreement, or in the alternative, should have allowed the defendant's motion to withdraw his guilty plea.

The Supreme Court has stated that the Government may not breach any term of a plea agreement which induced a defendant to plead guilty. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). Accordingly, when a defendant has entered into a plea agreement with the Government, the court must ensure that he/she receives what is reasonably due him/her under the agreement. United States v. Gonzalez- Sanchez, 825 F.2d 572, 578 (1st Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987). Thus, if a defendant lives up to his/her end of the bargain, the Government is bound by its promises. Id. (citing United States v. Garcia, 698 F.2d 31, 37 (1st Cir.1983). However, if a defendant fails to fulfill his/her promises, the Government is released from its obligations under the agreement and may indict and try the defendant regardless of whatever it may have promised earlier. Id. (citing United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985); Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987)).

This circuit has established that the factual determination of whether there has been a breach of the plea agreement lies with the trial judge. Panzardi-Alvarez v. United States, 879 F.2d 975, 987 (1st Cir.), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990) (citing Gonzalez-Sanchez, 825 F.2d at 578); McAleney v. United States, 539 F.2d 282, 284 (1st Cir.1976) (citation omitted). This court will not reverse the factual determinations of a district court in relation to the breach of a plea agreement unless it is clearly erroneous. I...