United States v. Erwin

• Decision Date: 26 August 2014
• Docket Number: No. 13–3407.,13–3407.
• Citation: 765 F.3d 219
• Parties: UNITED STATES of America v. Christopher ERWIN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

765 F.3d 219

UNITED STATES of America

v.Christopher ERWIN, Appellant.

No. 13–3407.

United States Court of Appeals, Third Circuit.

Argued: May 20, 2014.

Filed: Aug. 26, 2014.

Jeffrey M. Brandt, Esq., [Argued], Robinson & Brandt, Covington, KY, Attorney for Appellant.

Mark E. Coyne, Esq., Office of United States Attorney, Newark, NJ, Norman Gross, Esq., [Argued], Office of United States Attorney, Camden, NJ, Attorneys for Appellee.

Before: McKEE, Chief Judge, CHAGARES, and NYGAARD, Circuit Judges.

OPINION

CHAGARES, Circuit Judge.

This case presents the novel question of what remedy is available to the Government when a criminal defendant who knowingly and voluntarily executed a waiver of right to appeal—and received valuable promises from the Government in return—violates his plea agreement by filing an appeal. Christopher Erwin pleaded guilty to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 21 U.S.C. § 846. His agreement included a waiver of right to appeal his sentence if it was within or below the advisory Sentencing Guidelines range that results from a total advisory United States Sentencing Guidelines (“U.S.S.G.”) offense level of 39. The Government agreed not to bring further criminal charges against Erwin in connection with the conspiracy, and it also agreed to seek a downward departure under U.S.S.G. § 5K1.1. The Government fulfilled its part of the bargain; Erwin, who challenges his within-Guidelines sentence on appeal, did not.

For the following reasons, we conclude that Erwin's appeal is within the scope of his appellate waiver, to which he knowingly and voluntarily agreed, and that he has failed to raise any meritorious grounds for circumventing the waiver. We further conclude that Erwin breached the plea agreement by appealing, and that the appropriate remedy for his breach is specific performance of the agreement's terms: that is, the Government will be excused from its obligation to move for a downward departure. We will therefore vacate Erwin's judgment of sentence and remand for de novo resentencing in accordance with this opinion.

I.

From approximately January 2009 through December 2010, Erwin managed a large-scale oxycodone distribution ring (the “Erwin Organization”) that operated throughout the State of New Jersey and elsewhere. The Erwin Organization's modus operandi was to obtain medically unnecessary prescriptions for oxycodone from licensed physicians Hassan Lahham and Jacqueline Lopresti, in Erwin's name and others' names, in exchange for cash. Erwin's customers, posing as patients, filled the prescriptions at various pharmacies in New Jersey and New York. The conspiracy yielded hundreds of thousands of oxycodone tablets, which were illegally sold on the black market.

On May 9, 2011, the Government filed a sealed criminal complaint against Erwin, Lahham, Lopresti, and nineteen others in the United States District Court for the District of New Jersey. The complaint charged each defendant with conspiracy to distribute and possess with intent to distribute oxycodone, a Schedule II controlled substance. On May 8, 2012, Erwin executed a written plea agreement with the Government in which he agreed to plead guilty to a one-count information charging him with the above-referenced conspiracy that would later be filed in the District Court.¹ The Government, in turn, agreed not to bring further criminal charges against Erwin in connection with the conspiracy.

Schedule A of the plea agreement set forth, inter alia, several stipulations addressingErwin's offense level under the advisory Sentencing Guidelines: (1) based on the quantity of oxycodone for which Erwin was responsible (6,912 grams), his base offense level was 38, see U.S.S.G. § 2D 1.1(c)(1); (2) Erwin was subject to a four-level enhancement for his leadership role in the conspiracy, see id. § 3B1.1(a); and (3) Erwin qualified for a three-level downward adjustment for acceptance of responsibility, see id. § 3E1.1. In accordance with the above, the parties agreed that the total Guidelines offense level applicable to Erwin was 39. The parties further agreed that “a sentence within the Guidelines range that results from the agreed total Guidelines offense level is reasonable.” Appendix (“App.”) 15 ¶ 7.

Paragraph 8 of Schedule A contained the following waiver of right to appeal:

Christopher Erwin knows that he has and, except as noted below in this paragraph, voluntarily waives, the right to file any appeal, ... including but not limited to an appeal under 18 U.S.C. § 3742 ..., which challenges the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from a total Guidelines offense level of 39. This Office [the United States Attorney for the District of New Jersey] will not file any appeal, motion[,] or writ which challenges the sentence imposed by the sentencing court if that sentence falls within or above the Guidelines range that results from a total Guidelines offense level of 39. The parties reserve any right they may have under 18 U.S.C. § 3742 to appeal the sentencing court's determination of the criminal history category. The provisions of this paragraph are binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein. Furthermore, if the sentencing court accepts a stipulation, both parties waive the right to file an appeal ... claiming that the sentencing court erred in doing so.

Id. ¶ 8. Both parties reserved the right to “oppose or move to dismiss” any appeal barred by the above paragraph. Id. ¶ 9.

Erwin also entered into a written cooperation agreement with the Government. The agreement provided that, if the Government determined “in its sole discretion” that Erwin substantially assisted in the investigation or criminal prosecution of others, it would ask the court to depart downward from the Guidelines range pursuant to U.S.S.G. § 5K1.1. Supplemental Appendix (“Supp. App.”) 47. However, “[s]hould Christopher Erwin ... violate any provision of this cooperation agreement or the plea agreement, ... this Office will be released from its obligations under this agreement and the plea agreement, including any obligation to file [the] motion....” Supp. App. 48 (emphasis added). “In addition, Christopher Erwin shall thereafter be subject to prosecution for any federal criminal violation of which this Office has knowledge....” Id. The plea and cooperation agreements “together constitute[d] the full and complete agreement between the parties.” Supp. App. 46. For the sake of brevity, we will refer to them collectively as the plea agreement.

During the next several months, Erwin attended debriefing sessions at which he was “questioned extensively.” Supp. App. 53. In particular, he reviewed and explained documents critical to the Government investigation of the Erwin Organization, including his records, coconspirators' medical files, and prescriptions. Id. Erwin also agreed to testify against Lopresti and Lahham, influencing their decisions to plead guilty. Id. In light of Erwin's “important and timely” assistance, the Government wrote a letter to the court on July 12, 2013, asking it to depart downward “from the otherwise applicable” Guidelines range and to consider Erwin's cooperation “in mitigation of [his] sentence.” Supp. App. 54.

The United States Probation Office's Presentence Investigation Report (“PSR”), as revised on July 15, 2013, mirrored the parties' stipulations as to Erwin's offense level and determined that Erwin's criminal history category was I. The PSR noted, however, that Erwin's advisory Guidelines “range” was 240 months (20 years) “due to the statutory maximum.” ² PSR ¶ 187. A sentence of 240 months, for an offender in criminal history category I, falls within the low end of the range resulting from offense level 38 and the middle of the range resulting from offense level 37. SeeU.S.S.G. ch. 5, pt. A (Sentencing Table).

Erwin's sentencing hearing was held on July 25, 2013. The District Court agreed with the parties and the PSR that: (1) Erwin's base offense level based on the quantity of oxycodone attributable to him was 38; (2) Erwin was subject to a four-level enhancement for his leadership role in the conspiracy; and (3) Erwin qualified for a three-level downward adjustment for his acceptance of responsibility. Erwin's total offense level of 39 and criminal history category of I yielded an initial Guidelines range of 262 to 327 months of imprisonment. The court noted that Erwin's sentence was “capped at” 240 months “because of the statutory maximum.” App. 22. Citing its July letter to the court, the Government then moved for a five-level downward departure pursuant to U.S.S.G. § 5K1.1. The Government clarified that, to the extent there “may be some question as to where to start,” it was requesting a departure from offense level 39 to offense level 34, as opposed to from the statutory maximum of 240 months. App. 24. Erwin did not object, and the court granted the Government's motion. Erwin's final Guidelines range was 151 to 188 months of imprisonment. After considering the factors under 18 U.S.C. § 3553, the court imposed a within-Guidelines sentence of 188 months, three years of supervised release, and a $100 special assessment.

Erwin timely appealed, arguing that the District Court's use of offense level 39 as its starting point for the downward departure was error because, when combined with criminal history category I, offense level 39 yields an advisory Guidelines range above the statutory maximum. The Government did not cross-appeal. It counters, however, that this Court should vacate and remand for de novo resentencing where it will seek a “modest increase” in Erwin's sentence in light of his breach of the appellate waiver. Gov't Br. 34.

II.

The District Court had jurisdiction over the prosecution of...