United States v. Henry

• Decision Date: 22 July 2014
• Docket Number: No. 12–3111.,12–3111.
• Citation: 758 F.3d 427
• Parties: UNITED STATES of America, Appellee v. Robert HENRY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

758 F.3d 427

UNITED STATES of America, Appellee

v.Robert HENRY, Appellant.

No. 12–3111.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 11, 2014.

Decided July 22, 2014.

Appeal from the United States District Court for the District of Columbia, (No. 1:12–cr–00180–1).

Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.

Katherine M. Kelly, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and Julieanne Himelstein, Assistant U.S. Attorneys.

Before: KAVANAUGH and PILLARD, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

PILLARD, Circuit Judge:

Robert Henry was arrested and charged with two sex offenses. In exchange for his guilty plea on both counts, the government promised that the prosecutor would inform the Departure Guideline Committee of the United States Attorney's Office about the nature and extent of Henry's cooperation, and, if the Committee approved a downward departure motion, that the prosecutor would file such a motion with the district court. Henry had in fact promptly cooperated with authorities, and as a result of his cooperation, two other men were investigated and prosecuted for child pornography offenses. The prosecutor so informed the Departure Committee, but the Committee nonetheless declined to authorize a motion requesting that the district court depart from the U.S. Sentencing Guidelines based on substantial assistance under Guideline section 5K1.1.

At his sentencing hearing and now on appeal, Henry asserts that the government breached the plea agreement by failing to tell the Departure Committee the complete “nature and extent” of his cooperation. In the alternative, Henry argues that the district court failed to explore adequately the government's reasons for declining to file a departure motion. Because Henry identifies no difference between the information he concedes the prosecutor provided to the Departure Committee and what he believes the prosecutor should have provided, and because the prosecutor summarized for the district court both the information that the prosecutor presented to the Committee and the Committee's basis for declining to approve the departure motion, we affirm.

I

Henry was arrested in May 2012 and charged with one count of persuading or coercing an individual to travel to engage in sexual activity for which a person can be charged with a criminal offense, and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2422(a) and 2252A(a)(5)(B), respectively. As Henry's counsel described, those charges stemmed “from Mr. Henry's use of the internet to engage in conversations with a person (an undercover police officer) purporting to have sex with his twelve year old daughter.” Def.'s Sentencing Mem. at 1 (Nov. 29, 2012). Specifically, “[f]or approximately three weeks, Mr. Henry and the undercover officer engaged in conversations and Mr. Henry ultimately agreed to meet the [undercover officer] and his daughter” with the purpose of allowing Henry to have sexual relations with her. Id. Henry was arrested when he went to meet the undercover officer and the officer's purported daughter. He admitted to the police that he had videos of child pornography on his cell phone, a search of which recovered a number of such videos.

In early September 2012, Henry executed an agreement with the government, pleading guilty to both counts charged. As relevant here, the government undertook the following obligations in the plea agreement:

This Office will inform the Departure Guideline Committee of the United States Attorney's Office for the District of Columbia about the nature and extent of your client's cooperation.¹ If the Departure Guideline Committee of the United States Attorney's Office for the District of Columbia, after evaluating the full nature and extent of your client's cooperation, determines that your client has provided substantial assistance, then this Office will file a departure motion pursuant to Section 5K1.1 and 18 U.S.C. § 3553(e). In the event this Office, in its sole discretion, decides to file a departure motion pursuant to Section 5K1.1 and 18 U.S.C. § 3553(e), your client will be afforded an opportunity to persuade the Court that he should be sentenced to a lesser period of incarceration than otherwise required by either the Sentencing Guidelines or any applicable mandatory minimum sentence established by statute. However, notwithstanding a determination by the Departure Guideline Committee of the United States Attorney's Office for the District of Columbia that your client has provided substantial assistance, in the event your client should fail to specifically perform and fulfill completely each and every one of your client's obligations under this plea agreement, then, the Government will be free from its obligations under the agreement, including but not limited to its obligations to file a departure motion pursuant to Section 5K1.1 of the Sentencing Guidelines and/or 18 U.S.C. § 3553(e).

Plea Agreement at 12 (Sept. 7, 2012).

Henry had promptly cooperated with authorities, and, as a result of his cooperation, two other men were investigated and prosecuted for child pornography offenses. Before sentencing, the government filed a proffer with the district court outlining Henry's cooperation. It stated that “[a]lmost immediately” Henry assisted authorities by going online to talk with targets from whom Henry had received child pornography. Cooperation Proffer at 1 (Dec. 5, 2012). Henry introduced one named target to an undercover officer. That target sent child pornography to the officer, was arrested, and pled guilty to one count of distribution of child pornography in the U.S. District Court for the District of Columbia. Id. at 1–2. The proffer also stated that Henry had facilitated the identification and investigation of a second target, who had a prior conviction for child pornography, was a registered sex offender, and was “being prosecuted” but that “[a]t the time of this writing ... it is unknown what disposition of that case, if any, has occurred.” Id. at 1.

At some point before the signing of the plea agreement, the prosecutor asked Henry whether he had had any hands-on sexual contact with children, which Henry denied. But that was unfortunately not the case. In November 2011—before he was arrested in this case—Henry, then 22, had traveled from the District of Columbia to Prince George's County, Maryland and had sex with a 13–year–old girl he met on Facebook. When Maryland officials later interviewed Henry about the incident, he confessed that he had had sex with the girl, but protested that he thought she was close to 15 years old at the time. Maryland officials filed a detainer for second degree rape of a minor in mid-July of 2012, after Henry's arrest in this case and the drafting, but not the signing, of the plea agreement.

The government ultimately declined to file a departure motion in this case for substantial assistance under section 5K1.1 of the Guidelines.² The prosecutor explained to the district court that the government refused to do so because of Henry'sfalse statement about his prior hands-on sexual contact with minors. See Gov't Sentencing Mem. at 3–4 & n.4 (Nov. 30, 2012); Sentencing Tr. 38 (Dec. 13, 2012).

At sentencing, the district court rejected, among other things, Henry's contention that the government had breached the plea agreement by failing to give the Departure Committee more detailed information about the progress in the prosecution of the second defendant. Sentencing Tr. 47–49. The government did not argue and the court did not hold that Henry breached the agreement. The district court emphasized Henry's pattern of sexually dangerous behavior towards young girls and sentenced Henry to 135 months' imprisonment on the persuading or coercing to travel count, the lowest end of the applicable Sentencing Guidelines range, to run concurrently with 120 months on the possession of child pornography count, the statutory maximum. Id. at 54–63.

This appeal followed.

II

It has long been the law that, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); see also United States v. Jones, 58 F.3d 688, 691 (D.C.Cir.1995) ( “When a prosecutor secures a plea with a promise, the promise must be fulfilled.”); United States v. Doe, 934 F.2d 353, 361 (D.C.Cir.1991). “In other words, a plea agreement is a contract.” Jones, 58 F.3d at 691.

While “[e]ven in the absence of any contractual arrangement, the Government's decision not to file a section 5K1.1 motion, like any other prosecutorial decision, is subject to constitutional limitations,” plea agreements “provide[ ] additional protection” for defendants. Jones, 58 F.3d at 692. The bargained—for promises are bolstered by an implied obligation of good faith and fair dealing. Id. Where the government breaches a plea agreement, remand for specific performance of the agreement or withdrawal of the guilty plea may be warranted. Santobello, 404 U.S. at 262–63, 92 S.Ct. 495.

In interpreting the terms of a plea agreement, we look to principles of contract law. United States v. Ahn, 231 F.3d 26, 35 (D.C.Cir.2000); Jones, 58 F.3d at 691. In evaluating whether a plea agreement has been breached, we look to the reasonable understanding of the parties and construe any ambiguities in the agreement against the government. In re Sealed Case, 702 F.3d 59, 63 n. 2 (D.C.Cir.2012); United States v. Rodgers, 101 F.3d 247, 253 (2d Cir.1996). We interpret the terms of a plea agreement de novo, United States v. Gary, 291 F.3d 30, 33 (D...