United States v. Cruz

• Docket Number: 23-1192
• Decision Date: 08 March 2024
• Citation: 95 F.4th 106
• Parties: UNITED STATES of America v. Danny CRUZ, Appellant
• Court: U.S. Court of Appeals — Third Circuit

95 F.4th 106

UNITED STATES of America v. Danny CRUZ, Appellant

No. 23-1192

United States Court of Appeals, Third Circuit

Argued: November 6, 2023

Filed: March 8, 2024

On Appeal from the United States District Court for the Middle District of Pennsylvania(D.C.No. 1:20-cr-00161-001), District Judge: Honorable Christopher C. Conner

Craig E. Kauzlarich[ARGUED], Abom & Kutulakis, 2 West High Street, Carlisle, PA 17013, Counsel for Appellant

Christian T. Haugsby[ARGUED], U.S. Attorney's Office, 1501 North 6th Street, 2nd Floor, Harrisburg, PA 17102, Counsel for Appellee

Before: RESTREPO, BIBAS, and SCIRICA, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

Prosecutors must keep their promises.And if they do not, they must make things right quickly, clearly, and fully.The prosecution here did not do that.Though it promised to support a total offense level of 14 at sentencing, it later endorsed an extra enhancement.After the defendant objected, the prosecution changed course and took no position on the enhancement.But that was not enough.The prosecution neither retracted its erroneous position unequivocally nor fulfilled its promise to the defendant.So we will vacate the sentence and remand to let a different judge consider the right remedy.

I. CRUZ PLEADED GUILTY TO A CELLPHONE CONSPIRACY

Danny Cruz wanted to make money behind bars.So he hatched a plan to smuggle cell phones into prison and sell them to his fellow inmates.To get the phones in, he bribed a prison guard.Unfortunately for him, the government caught on to his scheme.

Cruz was charged with conspiring to violate the Travel Act(by bribing a prison guard) under 18 U.S.C. § 371.Facing up to five more years in prison, he took a plea deal.He pleaded guilty in exchange for the prosecution's "agree[ment] to recommend . . . that the total offense level is 14, which is based on a [base offense] level 12 per U.S.S.G. § 2C1.1(a)(2)(bribery of a public official) and a two-level increase per U.S.S.G. § 2C1.1(b)(1)(more than one bribe)."App. 29.Yet "[e]ach party reserve[d] the right to make whatever remaining arguments it deem[ed] appropriate" about how to "appl[y] . . . the . . . Sentencing . . . Guidelines to [Cruz's] conduct."App. 29-30.And if the court asked for briefing, argument, or evidence on how to apply the Guidelines, the prosecution was free to respond.

Though the parties agreed on these calculations, the Probation Office did not.It called for a four-level enhancement because the crime involved "a[ ] public official in a . . . sensitive position."U.S.S.G. § 2C1.1(b)(3).That enhancement would make the adjusted offense level 18:

• Base offense level for bribery (agreed-upon)

12

• Plus enhancement for multiple bribes (agreed-upon)

+2

• Plus enhancement for bribing public official in sensitive job (disputed)

+4

Adjusted offense level

18

• Minus acceptance-of-responsibility discount (undisputed)

-3

Final offense level

15

Cruz objected that the sensitive-public-official enhancement did not apply and did not reflect the plea agreement.So, he said, "if the Government endorses the enhancement[,] that . . . would contravene the Plea Agreement."App. 74.The prosecution then allegedly breached the agreement three times.

First alleged breach: To discuss Cruz's objections, the District Court held a presentence conference by phone in July 2022.Though there is no transcript, both parties agree on what happened during that call: the prosecution supported the extra four-level enhancement.Cruz objected that this support breached the plea agreement.

To sort out the confusion, the court asked the parties to brief whether the disputed enhancement applied and whether the prosecution had breached the agreement.In his brief, Cruz sought to withdraw his guilty plea.He argued that the prosecution had breached the deal both by not opposing the four-level enhancement and by supporting a total offense level of 18.

Second alleged breach: Responding to Cruz's brief, the prosecution changed course.Its September 2022 brief took no position on whether the four-level enhancement applied.Instead, it summarized the law on the issue neutrally.Thus, the court found no breach and denied Cruz's motion to withdraw his plea.In January 2023, at the start of the sentencing hearing, the prosecution reiterated that it was taking no position on the enhancement.

Third alleged breach: At sentencing, the District Court found that the four-level enhancement did apply.So did a three-level reduction for acceptance of responsibility.That made Cruz's final offense level 15 and his final Guidelines range 41 to 51 months.The prosecution then said that range was "fair and appropriate."App. 116, 118.The court sentenced him to 51 months in prison, the top of the range.

On appeal, Cruz alleges all three breaches of the plea agreement.But we need not reach the second and third ones because his first theory correctly identifies an uncured breach.The parties agree on the facts and dispute only whether the prosecution's actions amounted to a breach.That is a pure issue of law, so we review de novo.United States v. Moscahlaidis, 868 F.2d 1357, 1360(3d Cir.1989).

II.THE PROSECUTION BROKE THE PLEA DEAL

A.The appeal waiver does not bar our review

Plea bargains are contracts between prosecutors and defendants.Id. at 1361.Each side agrees to certain charges or sentence calculations and gives up its right to take other positions.Yet these are not ordinary contracts.The stakes are not goods or money, but liberty and justice.So public policy limits what lawyers, as officers of the court, can say and do in court.

Because defendants give up many constitutional rights by entering plea bargains, "courts must carefully scrutinize [them] to insure that the government has fulfilled its promises."United States v. Williams, 510 F.3d 416, 422(3d Cir.2007).And lawyers do not find the defendant guilty or sentence him; the court does that, after hearing the lawyers out.To do that fairly, judges need to understand the facts and the law.In a plea bargain, lawyers may agree to take certain plausible positions in litigation.But no matter what the plea agreement says, they may not lie to or mislead the court.SeeWharton v. Superintendent Graterford SCI, No. 22-2839, 95 F.4th 140(3d Cir.Mar. 8, 2024).

Nor may they breach the agreement.SeeSantobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427(1971).If they do, they may not insulate their own breaches from judicial review.True, the parties here waived their right to appeal.Those appeal waivers are generally valid—but not always.United States v. Khattak, 273 F.3d 557, 562(3d Cir.2001).For instance, they do not bar us from reviewing whether Congress authorized a particular sentence.United States v. Yung, 37 F.4th 70, 82(3d Cir.2022).And they do not stop us from policing the prosecution's breaches of its own obligations under a plea agreement.United States v. Schwartz, 511 F.3d 403, 405(3d Cir.2008).Judges must independently verify that the parties have followed the law and their agreements.So we may proceed to consider Cruz's claim.

B.The prosecution was not free to seek the sensitive-public-official enhancement

The parties dispute what the plea agreement means by "total offense level."App. 29.Cruz reads it "to mean the final, aggregate offense level."Appellant'sBr. 14.The government disagrees, saying that it could not be the final calculation because it leaves out the three-level reduction for acceptance of responsibility.

The government is wrong for three reasons.First, the government admits that it drafted the plea agreement and that the phrase "total offense level" was "inartful."Appellee'sBr. 20 n.4.So we read the agreement contra proferentem: "[T]o the extent there is ambiguity caused by the 'little bit of poor draftsmanship' conceded by the prosecutor, we must construe the agreement against the government as drafter."United States v. Rivera, 357 F.3d 290, 295(3d Cir.2004), abrogated on other grounds byPuckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266(2009);accordUnited States v. Floyd, 428 F.3d 513, 516(3d Cir.2005).Second, the plain meaning of "total offense level" is that it reflects the "total," which includes all enhancements.Third, we"must read [Cruz's] plea bargain in a manner that gives meaning to each provision."Floyd, 428 F.3d at 516.Yet the government's reading would make that term meaningless.

The government also notes that the plea agreement left it free to make "whatever remaining arguments it deems appropriate" about the Guidelines.App. 30.Thus, it argues, the plea deal let it seek the four-level enhancement identified by the Probation Office.But "remaining arguments" are only those left after specific ones run out.The specific stipulation (recommending a total offense level of 14) trumps the general permission.Rivera, 357 F.3d at 295.So that provision of the deal does not get the prosecution out of its duty to stick to a total offense level of 14 or less.

In short, the plea agreement barred the prosecution from advocating a total offense level above 14.It remained free to respond to the court's inquiries neutrally and accurately.But it could not support the four-level enhancement for bribing a public official in a sensitive job.

C.By supporting the enhancement, the prosecution broke the plea deal

At the July 2022 presentence conference, the prosecution supported the four-level enhancement for bribing a public official in a sensitive job.The government admits that.It thus supported a total offense level of 18, or 15 with the acceptance-of-responsibility reduction.Either way, it had promised to recommend a total offense level no higher than 14.So it breached the agreement.

The government argues that there was no breach under United States v. Larkin, 629 F.3d 177(3d Cir.2010).But there, "the government [did]...