U.S.A v. Woltmann

• Decision Date: 06 July 2010
• Docket Number: Docket No. 10-413.
• Citation: 610 F.3d 37
• Parties: UNITED STATES of America, Appellee,v.Gary WOLTMANN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

610 F.3d 37

UNITED STATES of America, Appellee,v.Gary WOLTMANN, Defendant-Appellant.

Docket No. 10-413.

United States Court of Appeals, Second Circuit.

Argued: June 9, 2010.

Decided: July 6, 2010.

Richard M. Langone, Langone & Associates, Levittown, NY, for Appellant.

Charles P. Kelly, for Loretta E. Lynch, United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before JACOBS, Chief Judge, WINTER and WALKER, JR., Circuit Judges.

DENNIS JACOBS, Chief Judge:

Defendant-appellant Gary Woltmann pled guilty in the United States District Court for the Eastern District of New York (Platt, J.) to one count of tax fraud. Woltmann filed a notice of appeal challenging the sentence, and the government countered with a motion to dismiss, citing Woltmann's waiver of appeal in the plea agreement (“the Agreement”). We conclude that the waiver is unenforceable, and we vacate and remand to a different district judge for re-sentencing.

I

Pursuant to the Agreement, Woltmann pled guilty in September 2007. After signing the Agreement but before sentencing, Woltmann provided substantial assistance to the government in its (ultimately successful) prosecution of another criminal tax fraud case. In exchange for this cooperation, the government submitted a letter to the district court pursuant to U.S.S.G. § 5K1.1 “urg[ing] the Court to consider formulating a sentence below the advisory guidelines” range of 18 to 24 months' imprisonment.¹

At a December 11, 2009 hearing (“December 11 Hearing”), defense counsel and the government urged the district court to consider the 5K1.1 letter and the factors enumerated in 18 U.S.C. § 3553(a) when imposing sentence. Notwithstanding these prompts, the district court deemed the 5K1.1 letter an improper effort by the parties to repudiate, modify, or amend the Agreement, and ruled that the Agreement constituted Woltmann's consent to any sentence at or below 27 months (the upper limit of the appeal waiver provision). Accordingly, the judge discounted the 5K1.1 letter and the other factors enumerated in § 3553(a).

At a hearing on January 22, 2010 (“January 22 Hearing”), the district court sentenced Woltmann principally to 18 months' imprisonment (the low end of the Guidelines range). In short succession, Woltmann filed a notice of appeal in this Court; the government moved to dismiss on the basis of the appeal waiver provision in the Agreement; and Woltmann moved for bail pending appeal.

On April 7, 2010, we granted Woltmann's bail motion. See United States v. Woltmann, 10-0413-cr (Apr. 7, 2010) (order). The government's motion to dismiss was then submitted to this panel. Because the facts, rules, and considerations that bear upon the motion likewise control the merits of the underlying appeal, we heard oral argument on the merits, and we resolve the merits together with the motion: The government's motion is denied, Woltmann's sentence is vacated, and the matter is remanded to a different district court judge for re-sentencing.

II

Three provisions of the Agreement have bearing on this appeal:

• Paragraph 2 states that the applicable Guidelines term of imprisonment is 18-24 months.

• Paragraph 2 acknowledges that “the Guidelines are advisory and the court is required to consider any applicable Guidelines provisions as well as other factors enumerated in 18 U.S.C. § 3553(a) to arrive at an appropriate sentence in this case.”

• Paragraph 4 contains an appeal waiver provision: “The defendant agrees not to ... appeal ... the conviction or sentence in the event that the Court imposes a term of imprisonment of 27 months or below. This waiver is binding without regard to the sentencing analysis used by the Court.”

Provisions like these are common, and their inclusion in the Agreement is unexceptional.

At the December 11 Hearing, the government reiterated its position, expressed in the 5K1.1 letter, that the court should impose a below-Guidelines sentence due to Woltmann's substantial assistance. See, e.g., Tr. of December 11 Hearing at 8. The district court refused. It viewed the Agreement as the “governing” or “controlling” instrument e.g., id. at 4-5, and reasoned that the government's advocacy of a below-Guidelines sentence on the basis of the 5K1.1 letter was an impermissible attempt to “repudiate,” “modify,” or “amend” the Agreement e.g., id. at 5, 14. The district court felt free to ignore the 5K1.1 letter and the § 3553 factors because Woltmann had ostensibly “consented to such and such a sentence” by agreeing both to the Guidelines calculation in Paragraph 2 and the appeal waiver in Paragraph 4. Id. at 6. In effect, the district court believed that because of the appeal waiver any sentence at or below 27 months was appropriate, regardless of whether or how the 5K1.1 letter and the § 3553(a) factors-if considered-would bear on the sentence.

At the January 22 sentencing hearing, the district court stated that it had “considered the [A]greement that was made with the government and the provision that we just read, paragraph four [i.e., the appeal waiver provision], and the court feels that under the circumstances here and the family circumstances that an 18 month sentence is an appropriate one.” Tr. of January 22 Hearing at 12. The court also intimated, as it had done at the December 11 Hearing, that consideration of the 5K1.1 letter would constitute an impermissible repudiation of the Agreement:

[Defense Counsel]: I would just like to point out to the court, judge, first, that all of the guideline calculations were based upon an estimate prior to any cooperation or 5K1 letter.

The Court: Are you saying he wants to repudiate the plea agreement?

Id. at 4

Woltmann filed a notice of appeal, and the government moves to dismiss citing the appeal waiver in Paragraph 4 of the Agreement. Woltmann in turn argues that the district court's treatment of the 5K1.1 letter and the § 3553(a) factors requires us to vacate the sentence and remand for re-sentencing. We agree.

III

Plea agreements are reviewed “in accordance with principles of contract law.” United States v. Vaval, 404 F.3d 144, 152 (2d Cir.2005) (internal quotation marks omitted). We consider “the reasonable understanding of the parties as to the terms of the agreement.” United States v. Colon, 220 F.3d 48, 51 (2d Cir.2000). Moreover, because plea agreements are “unique contracts, ... we temper the application of ordinary contract principles with special due process concerns for fairness and the adequacy of procedural safeguards.” United States v. Granik, 386 F.3d 404, 413 (2d Cir.2004) (internal quotation marks omitted). Such contracts are narrowly construed. Id.

It is a “well-settled legal principle that the sentencing judge is of course not bound by the estimated range in a plea agreement.” United States v. Hamdi, 432 F.3d 115, 124 (2d Cir.2005) (internal quotation marks omitted). To the contrary, before imposing sentence, a district court must consider both a 5K1.1 letter (if one is proffered) United States v. Campo, 140 F.3d 415, 418-19 n. 5 (2d Cir.1998) (per curiam), and the factors enumerated in § 3553(a) Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Ordinarily, appeal waivers are enforced-and for good reason. See United States v. Morgan, 386 F.3d 376, 380 (2d Cir.2004) (explaining that voiding such waivers “would render the plea bargaining process and the resulting agreement meaningless” (internal quotation marks omitted)); United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir.2000) (“[T]he benefits of such waivers inure to both government and the defendant alike, with the government receiving the benefit of reduced litigation, and the defendant receiving some certainty with respect to his liability and punishment.”); United States v. Yemitan, 70 F.3d 746, 747-48 (2d Cir.1995) (“If this waiver does not preclude a challenge to the sentence as unlawful, then the covenant not to appeal becomes meaningless and would cease to have value as a bargaining chip in the hands of defendants.”). But we will not enforce an appeal waiver where-as here-the “sentencing decision ... was reached in a manner that the plea agreement did not anticipate,” United States v. Liriano-Blanco, 510 F.3d 168, 174 (2d Cir.2007); see also United States v. Roque, 421 F.3d 118, 123-24 (2d Cir.2005) (suggesting that an appeal waiver would be unenforceable if the defendant failed to “underst[an]d fully the consequences of his bargain, both in terms of what he was gaining and what he was giving up”), or where “the sentencing court failed to enunciate any rationale for the defendant's sentence, thus amounting to an abdication of judicial responsibility subject to mandamus,” Gomez-Perez, 215 F.3d at 319 (brackets and internal quotation marks omitted).

Applying these principles, we hold that vacatur is required because the district court: (1) improperly “relied” on the Agreement to the exclusion of the 5K1.1 letter and the § 3553(a) factors; and (2) misread the Agreement as manifesting Woltmann's enforceable concession that any sentence at or below 27 months obviated the need to consider the 5K1.1 letter and the § 3553(a) factors. In so doing, the district court failed to give effect to the parties' expectations and deprived Woltmann of the benefit that he (and the government) agreed he would receive from signing the Agreement (i.e., a weighing of the 5K1.1 letter and the § 3553 factors). At the same time, the court also “abdicated” its judicial responsibility in the way posited by Gomez-Perez, 215 F.3d at 319.

A

As the transcript of the December 11 Hearing unambiguously shows, the district court felt itself entitled to rely on the Agreement notwithstanding our law that such reliance is misplaced. See Hamdi, 432 F.3d at 124. For example, when the government raised the 5K1.1 letter at the outset of the hearing, the court responded: “[T]his is all very good, but we have-starting this case off, with an agreement ...