United States v. Johnson, 99-3109

• Decision Date: 17 October 2000
• Docket Number: No. 99-3109,99-3109
• Citation: 241 F.3d 1049
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA APPELLEE, v. STANLEY JOHNSON, APPELLANT. . Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1049

241 F.3d 1049 (8th Cir. 2001)

UNITED STATES OF AMERICA APPELLEE, v. STANLEY JOHNSON, APPELLANT.

No. 99-3109.

UNITED STATES COURT OF APPEALS, FOR THE EIGHTH CIRCUIT.

Submitted: October 17, 2000.

Filed: February 26, 2001.

Appeal from the United States District Court for the District of Nebraska.

Before Beam, Heaney, and Morris Sheppard Arnold, Circuit Judges.

Beam, Circuit Judge.

Pursuant to a plea agreement, Stanley Johnson pled guilty to conspiracy to distribute methamphetamine and cocaine, and possession of a firearm during a drug trafficking crime. The agreement obligated the government to file a downward departure motion upon its determination that Johnson had provided it with substantial assistance. The government did not move for downward departure and Johnson was sentenced to 324 months imprisonment on the distribution count and 60 months on the firearm count, to be served consecutively, followed by supervised release. Johnson appeals his sentence. Because we find that the prosecution failed to comply with the plea agreement, we vacate the sentence and remand to the district court for resentencing.

I. BACKGROUND

The plea agreement between Johnson and the government stated:

Should you fully comply with all the terms and conditions of this agreement, and if you continue to do so in your dealings with the Probation Officer, and the United States Attorney for the District of Nebraska concludes that you have provided substantial assistance in the investigation or prosecution of one or more other persons who have committed an offense, the United States shall file a motion with the sentencing Court requesting the Court to depart downward from the sentencing guidelines in its sentencing of you.

Clerk's Record at 18 (emphasis added). The agreement further provided that the motion could be made pursuant to 18 U.S.C. 3553(e) or United States Sentencing Guidelines 5K1.1 or both. The presentence investigation report also refers to the plea agreement, stating, "In exchange for the defendant's pleas and cooperation, the government agreed to file a motion for downward departure pursuant to United States Sentencing Guidelines (U.S.S.G.) 5K1.1 and/or 18 U.S.C. 3553(e) should the defendant's cooperation be deemed substantial."

At the July 16, 1999, sentencing, counsel for Johnson stated:

I would like to bring to the Court's attention a couple of facts. First of all, since Mr. Johnson's incarceration, he has done everything he can to cooperate with the Government. He has had a number of meetings with some law enforcement officials, I think at least three or four, maybe even possibly another one, and I know that he has already provided a substantial assistance and his cooperation is not done. He intends to continue cooperating in the investigation of a very large number of individuals. I would just like to bring that to the Court's attention.

Sent. Tr. at 9. The district court halted defense counsel at that point.

The Assistant United States Attorney did not make a departure motion. However, at the sentencing hearing, she indicated that she had in her possession a motion for reduction of sentence, pursuant to Federal Rule of Criminal Procedure 35(b), and that she would ask leave to file it at the end of the hearing. At the close of the procedure, the government asked leave to file the Rule 35(b) motion, which the court granted. In its motion, filed immediately after the hearing, the government conceded Johnson's substantial assistance, stating:

[P]ursuant to Rule 35(b) of the Rules of Criminal Procedure [the government moves the] Court to lower the sentence of the defendant imposed on July 16, 1999, due to Defendant's substantial assistance to the government.

It is expected that Mr. Johnson may be needed for further testimony and the government will file a request for a hearing on this Motion upon completion of his cooperation.

Add. at 14A (emphasis added). To date, the government has not filed a departure motion under section 5K1.1 of the United States Sentencing Guidelines or 18 U.S.C. 3553(e), and Johnson's sentence imposed on July 16, 1999, remains in force.

II. DISCUSSION

A. Reviewability

As a preliminary matter, the government argues that its "refusal to file a substantial assistance motion is reviewable only when the defendant makes a substantial threshold showing that the refusal was irrational or based on an unconstitutional motive." The argument is misplaced. We would agree with the government if Johnson were challenging the government's exercise of discretion as to whether he had provided substantial assistance, which under the plea agreement the government had reserved to itself, United States v. Wilkerson, 179 F.3d 1083, 1086 (8th Cir. 1999), or its exercise of discretion under the guidelines, Wade v. United States, 504 U.S. 181, 185-86 (1992) (finding that sections 5K1.1 and 3553 give the government power, but not a duty, to file a substantial assistance motion, and neither a defendant's claim that he provided substantial assistance nor generalized allegations of improper motive entitle him to a remedy, discovery, or an evidentiary hearing). However, at issue here is whether the government breached its plea agreement.

A prosecutor's agreement that, in any significant degree, induces the defendant to enter a plea, creates a duty to satisfy obligations that have arisen under that agreement. Santobello v. New York, 404 U.S. 257, 262 (1971); United States v. Granados, 168 F.3d 343, 346 (8th Cir. 1999); United States v. Van Horn, 976 F.2d 1180, 1183 (8th Cir. 1992). Here, the government agreed to make a departure motion under section 5K1.1 or 3553(e), or both, if in its sole discretion it determined that Johnson provided substantial assistance. The government exercised that discretion when it determined that Johnson had provided the requisite substantial assistance. Therefore, the executed agreement supersedes the government's otherwise broad discretion. United States v. Rounsavall, 128 F.3d 665, 668 (8th Cir. 1997); U.S. v. Watson, 988 F.2d 544, 552 (5th Cir. 1993) (stating that "[t]he crucial element . . . , which was not present in Wade, is the existence of a plea bargain in which the government bargained away its discretion to not submit a [departure] motion"); cf. Wade, 504 U.S. at 185 (indicating that the defendant had not claimed that an agreement by the government to file a departure motion had superseded the condition that one be filed). Consequently, we look to whether the plea agreement, and not the sentencing guidelines, entitled Johnson to the departure motion at sentencing.

The government further argues that we cannot address issues surrounding the plea agreement because Johnson "failed to object at the time of sentencing to the Government's decision not to file a motion for downward departure," and, therefore, such issues were not raised and decided at the district court level. Relying on Hormel v. Helvering, 312 U.S. 552, 556 (1941), the government suggests that it was somehow "surprised on appeal" by the plea agreement issue. Id. We find, however, that the plea agreement itself, as well as the revised presentence investigation report's explicit references to the pertinent terms of the agreement, were before the court, and that defense counsel sufficiently raised the issue when he specifically brought Johnson's assistance to the court's attention. ¹ See United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996) (finding that the issue of a breach of plea agreement was raised in the district court by defense counsel's request to consider the subject thereof). It seems almost incredible that counsel for the government would be surprised by the issue we now address. "Even though the district court did not decide whether the plea agreement had been breached and instead imposed the . . . sentence" without considering Johnson's assistance to the government "the issue of the breach of the plea agreement directly affects the lawfulness of the sentence, which is precisely what is under review in this . . . appeal." See id. (addressing a breach of plea agreement in similar circumstances).

B. The Plea Agreement

Issues concerning the interpretation and enforcement of a plea agreement are issues of law, which we review de novo. Van Thournout, 100 F.3d at 594.

Resolution of the plea-agreement issue in this matter requires us to look at the timing of a defendant's substantial assistance. In 1998, Rule 35(b) was amended to provide that "[i]n evaluating whether substantial assistance has been rendered, the court may consider the defendant's pre-sentence assistance." Fed. R. Crim. P. 35(b). Before the amendment was added, a defendant could benefit by providing substantial assistance prior to sentencing, pursuant to section 5K1.1 of the guidelines, and could benefit by providing substantial assistance after sentencing, pursuant to Rule 35(b). However, no formal mechanism considered both a defendant's pre-and post-sentencing assistance in determining whether, in the aggregate, he had provided the substantial assistance required for a reduction of sentence. Id. advisory committee note. Therefore, it was unclear whether he could benefit from pre-sentencing assistance that, standing alone, did not amount to substantial assistance, but when added to post-sentencing assistance, would constitute substantial assistance. See, e.g., United States v. Alvarez, 115 F.3d 839, 842 (11th Cir. 1997) (finding that a Rule 35(b) motion did not encompass the totality of a defendant's cooperation). The 1998 amendment remedied this gap and allows aggregation of pre-and post-sentencing assistance to ascertain substantial assistance. Fed. R. Crim. P. 35(b) advisory committee note.

We recognize that, in the plea agreement, the government retained the "sole discretion" to determine whether Johnston's assistance was substantial, which, of course, is permissible. Wilkerson, 179 F.3d at 1086....