United States v. Malone, 20-12744

• Docket Number: 20-12744
• Decision Date: 26 October 2022
• Citation: 51 F.4th 1311
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Brandon MALONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

51 F.4th 1311

UNITED STATES of America, Plaintiff-Appellee,

v.Robert Brandon MALONE, Defendant-Appellant.

No. 20-12744

United States Court of Appeals, Eleventh Circuit.

Filed: October 26, 2022

Barbara Chelsea Phillips, Brett Joseph Talley, U.S. Attorney Service - Middle District of Alabama, U.S. Attorney's Office, Montgomery, AL, for Plaintiff-Appellee.

Brock Phillips, Maynard Cooper & Gale, PC, Birmingham, AL, for Defendant-Appellant.

Robert Brandon Malone, Talladega, AL, Pro Se.

Before Rosenbaum, Tjoflat, Circuit Judges, and Moody,^* District Judge.

Rosenbaum, Circuit Judge:

Some cases present novel issues that we must resolve without help from precedent. Others require us to faithfully apply well-established law. This case falls into the second camp. And the precedent that controls our analysis from start to finish comes from no less than the Supreme Court: Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

Defendant-Appellant Robert Malone seeks vacatur of his 71-month sentence. He contends the government breached his plea agreement by arguing at sentencing against recommendations it allegedly promised to make to support a lower sentence than Malone received. But Malone never objected at sentencing that the government failed to live up to its bargain. So under Puckett , we subject Malone's claims to plain-error review on direct appeal. Indeed, we and every other Circuit that have faced this scenario have reached the same conclusion: on direct appeal, Puckett requires us to engage in plain-error review when a defendant raises an unpreserved claim that the United States breached his plea agreement.

Because the courts (including ours) have uniformly applied Puckett to require plain-error analysis on direct appeal whenever a defendant claims breach of the plea agreement but did not object in the district court, a reader might wonder why we are bothering to publish this opinion. After all, faithfully applying controlling Supreme Court (and our own) precedent seldom warrants publication.

Here, though, our dissenting colleague has asked us to publish. And so we respect that request. In the Dissent's view, Malone's claim is not cognizable on direct appeal and must instead be brought in a collateral attack. But despite our respect for our thoughtful colleague, that's not what Puckett says. And in the thirteen years since Puckett issued, neither we nor any of our sister Circuits appears to have ever reached the Dissent's conclusion. Rather, everyone has applied plain-error review on direct appeal.

We therefore faithfully apply Puckett ’s prescribed plain-error analysis here. And when we do that, we agree with Malone that the government breached the plea agreement in two ways. We also conclude that one of those breaches prejudiced Malone and seriously affected the fairness of the judicial proceedings. For that reason, we exercise our discretion to vacate Malone's sentence and remand for resentencing before a different district-court judge.

I.

A. Charges and Plea Agreement

A grand jury indicted Malone on (1) three counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts 1– 3); (2) one count of interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312 (Count 4); and (3) one count of sale of a stolen motor vehicle, in violation of 18 U.S.C. § 2313 (Count 5). After his arrest, Malone was released on bond under the condition, among others, that he would not commit any act in violation of state or federal law.

But once Malone was out on bond, he allegedly resumed the activities for which he was indicted—listing for sale and selling vehicles online that he did not own—by making another fraudulent vehicle sale in January 2020.

On February 7, 2020, in a petition for warrant, which was copied to the prosecutor, the probation officer recommended revocation of Malone's bond. The petition alleged in some detail that Malone had attempted to defraud a couple, using a scheme involving a vehicle and a false company, which would have violated state criminal law. After Malone was arrested and had his initial appearance on the petition in court, he waived his bond-revocation hearing, and a magistrate judge later revoked his bond. The same day that Malone waived his bond-revocation hearing, he filed a notice stating his intent to change his plea on the charges for which he was indicted from not guilty to guilty.

Despite the government's knowledge of these events, five days later, on February 18, 2020, Malone and the government entered into a plea agreement at Malone's change-of-plea hearing. Under this plea agreement, Malone agreed to plead guilty to Counts 1 through 4 in exchange for the government's agreement to dismiss Count 5. The government reserved the right to oppose a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a)¹ if it received information that Malone acted inconsistently with the acceptance of responsibility "between the date of the plea hearing and the date of the sentencing hearing." Notably, the government did not reserve the right to oppose the two-point reduction otherwise.

The government also agreed to move for a one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b), "[p]rovided the defendant otherwise qualifies, and that the defendant does not, before the date of the sentencing hearing, either personally or through the actions of the defense attorney on behalf of the defendant, take any action inconsistent [with] the acceptance of responsibility." The agreement explained that "[d]etermination of whether the defendant met the defendant's obligations to qualify for a reduction pursuant to § 3E1.1(b) [was] at the sole discretion of the government."

Besides the government's agreements about Section 3E1.1 recommendations, the government also agreed "to recommend a sentence within the advisory Guidelines range as calculated by the Court at the sentencing hearing."

In return for the government's concessions under § 3E1.1, Malone agreed "to refrain from taking any action inconsistent with [his] acceptance of responsibility for the offenses to which [he was] pleading guilty," not to commit any other offenses while awaiting sentencing, and to provide truthful information to probation and the district court.²

Besides these provisions, the plea agreement included a section on breaches. The parties agreed that the district court would resolve, by a preponderance of the evidence, any issue of whether a party had breached at any time. And if either party received information causing a good-faith belief that the other party had breached the agreement, the parties agreed, the receiving party would promptly file a written or oral motion asking the district court to declare the other party had breached the agreement.

The parties agreed that Malone would breach the agreement if he (1) failed to fulfill his obligations under the plea agreement; (2) committed another crime; or (3) tried to withdraw his guilty plea or otherwise engaged in conduct inconsistent with his acceptance of responsibility. Should Malone breach his obligations, the agreement provided that the government would be free of its obligations under the agreement. On the other hand, if the district court found that the government breached its obligations, the agreement allowed Malone to cancel the agreement and be released from the appellate and collateral-attack waivers contained within it. But the parties agreed that a breach of the agreement by the government would not automatically entitle Malone to withdraw his guilty plea, and if he did seek to withdraw his plea because of the breach, he would have to file a motion under Federal Rule of Criminal Procedure 11(d).

Malone acknowledged that the district court was not bound by the plea agreement and that he understood that the district court would ultimately determine the guidelines range and sentence. He confirmed that the plea-agreement document set forth the entire agreement and that the government had made no promises to him outside it. In the addendum to the plea agreement, the parties stated that the plea agreement didn't include a cooperation agreement.

The district court accepted Malone's guilty plea and set the case for sentencing three months later.

B. Sentencing Hearing

Before the sentencing hearing, the probation office prepared a presentence investigation report ("PSR"). The PSR recommended against any guidelines adjustment for acceptance of responsibility. As a result, the PSR's recommended total offense level was 23, and its criminal-history calculation recommended a category of III, leading to a recommended guidelines range of 57 to 71 months’ imprisonment.

Also before the sentencing, Malone filed a sentencing memorandum. In it, he objected to the PSR's conclusion that he had not accepted responsibility. In support of his objection, he noted that he had pled guilty; had stated his regret for his actions during his interview with the probation officer; had admitted his offense conduct and all relevant conduct; and had been "respectful and helpful with the Court's time, the Government's prosecution and Probation's inquiry." Malone noted that with the two-point deduction for acceptance of responsibility that the government had agreed not to oppose based on pre-plea conduct and the third-point reduction that the government had agreed in the plea agreement to recommend, the total offense level would be 20. And with a criminal-history category of III, that would have yielded a guidelines range of 41 to 51 months’ imprisonment.

The next day, the government filed a sentencing memorandum seeking a term of imprisonment of 66 months. It failed to explain its recommendation other than a general reference to the probation-recommended guidelines range and the § 3553(a) factors.

At the sentencing hearing, Malone requested a three-level reduction for acceptance of responsibility. He noted that if the district court granted...