United States v. Navarro

• Citation: 817 F.3d 494
• Decision Date: 27 October 2015
• Docket Number: No. 12–2606.,12–2606.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Salvador Guadalupe NAVARRO, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

817 F.3d 494

UNITED STATES of America, Plaintiff–Appellee,

v.Salvador Guadalupe NAVARRO, Defendant–Appellant.

No. 12–2606.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 2014.

Decided Oct. 27, 2015.

Amended on Rehearing April 8, 2016.

Donald S. Boyce, Attorney, John Clark Constance, Attorney, Jonathan Scott Drucker, Attorney, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff–Appellee.

Johanna M. Christiansen, Attorney, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Salvador Guadalupe Navarro, Pekin, IL, pro se.

Before BAUER and HAMILTON, Circuit Judges, and ELLIS, District Judge.^*

ELLIS, District Judge.

Defendant–Appellant Salvador Guadalupe Navarro ("Navarro") pleaded guilty to and was convicted of one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine. In the plea agreement, the government and Navarro both agreed to refrain from seeking a departure from the sentencing guidelines and to recommend a sentence within the guidelines range as determined by the district court. At sentencing, the district court rejected an aggravated role enhancement under U.S.S.G. § 3B1.1

and determined that the applicable guidelines range was 188 to 235 months in prison. At that point, the government argued in favor of an upward departure from the guidelines suggested in Application Note 2 to U.S.S.G. § 3B1.1(b) and additionally recommended an above-guidelines sentence of 320 months. Navarro voiced no objection, however, to this breach of the plea agreement by the government. Indeed, the district court departed upward and imposed a sentence of 262 months. Navarro now appeals his sentence, arguing that the government's breach of the plea agreement constitutes plain error warranting resentencing. We agree with Navarro and reverse and remand for resentencing.

I. BACKGROUND

On July 29, 2011, the government indicted Navarro and 22 others for their participation in a cocaine conspiracy. Navarro and the government entered into a written plea agreement in which Navarro pleaded guilty to one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841

and 846. In the plea agreement, the government submitted that Navarro's offense level was 37 and that based on Navarro's criminal history category of III, the resulting guidelines range was 262 to 327 months in prison. Navarro did not concur with the government's offense level calculation but agreed that the district court would determine the offense level, the resulting guidelines range, and the applicability of any enhancements at sentencing.

Despite the dispute over Navarro's offense level, the government agreed "to recommend sentencing within the range ultimately found by the Court." Plea Agreement ¶ 3. Likewise, Navarro "agree[d] not to seek any sentence below the lowest range of the advisory sentence recommended by the guidelines after all guideline factors have been considered by the Court." Id. The plea agreement reiterates, in bold, "[t]he United States and the Defendant agree not to seek a sentence outside the applicable Guideline range. " Id. ¶ 12.

In exchange for the government's concessions, Navarro also waived certain appellate rights. But Navarro retained the right to challenge the reasonableness of the sentence if the court imposed a sentence in excess of the applicable guidelines range.

At sentencing, the government called several witnesses to testify to Navarro's role in the conspiracy. The witnesses described Navarro loading and delivering cocaine, counting proceeds from cocaine sales, and using soap and perfumes to mask the smell of the drugs. A federal agent stated that Navarro primarily served as a drug courier, but that Navarro took on more responsibility when the leader of the conspiracy, Ivan Vazquez–Gonzalez, travelled to Mexico for an extended period of time.

Based on the witnesses' testimony, the government argued that Navarro qualified for a three-level enhancement pursuant to § 3B1.1(b)

for managing or supervising other members of the conspiracy. Alternately, the government proposed that even if the court declined to apply the § 3B1.1(b) enhancement, it could depart upward pursuant to that section's application note 2. Specifically, the government stated:

I would also draw the Court's attention to application note 2 of that guideline, which says, ... "An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who, nevertheless, exercised management responsibility over the property, assets or activities of a criminal organization." Now there can be no doubt, based upon the evidence that was presented today, that the description applies to Mr. Navarro.

Sent. Tr. 110:5–18. While Navarro opposed the imposition of an enhancement or an upward departure based on his role in the offense, he did not object on the basis that the government breached the plea agreement by advocating for an upward departure.

The district court determined that Navarro did not manage or supervise others, and thus refused to enhance Navarro's offense level pursuant to § 3B1.1(b)

. The court found that Navarro's adjusted offense level was 34, resulting in a guidelines range of 188 to 235 months in prison based on his criminal history. But the court adopted the government's alternative theory, applying an upward departure pursuant to application note 2 of § 3B1.1 based on Navarro's management of the conspiracy's property.

After announcing these conclusions, the court allowed the government and Navarro to recommend a specific sentence. The government began by stating, "[m]y understanding of the guideline range found by the Court then is 262 to 327 months. In the plea agreement, Your Honor, the United States reserved the right to make a recommendation within that range and we're making a recommendation today of 320 months." Id. at 131. Navarro did not object to this recommendation as a breach of the plea agreement, and the district court did not correct the government's misapprehension of the applicable guidelines range. Navarro argued for a sentence "at the lower end of the guidelines," without specifying a particular number of months. Id. at 133.

The court ultimately sentenced Navarro to 262 months in prison, stating:

In considering the specific characteristics of this offense and this wide range conspiracy, the very large quantity of drugs involved, the breadth of it, the scope of it in terms of geographics, individuals involved and the amount of drugs, this defendant's personal involvement is such that I believe this would be the sentence that I would impose in this case had I not found a three level upward departure was appropriate under comment 2, section 3B.

Id. at 138.

Navarro appealed his sentence, but his counsel moved to withdraw, believing that the appeal was frivolous. We denied counsel's Anders motion to withdraw, pointing out that Navarro had a non-frivolous argument that the government breached its agreement and that the breach may have affected Navarro's sentence. United States v. Navarro, 561 Fed.Appx. 507 (7th Cir.2014)

. The parties then briefed the substance of Navarro's appeal.

II. ANALYSIS

Navarro contends that the government breached the plea agreement in two ways: by advocating for an upward departure and by recommending a sentence above the applicable guidelines range. Navarro argues that these breaches warrant vacating his sentence and remanding the case to the district court for resentencing. We agree.

Whether a plea agreement has been breached is a question of law we review de novo. United States v. Williams, 102 F.3d 923, 927 (7th Cir.1996)

. But because Navarro failed to object both when the government argued in favor of an upward departure and subsequently recommended a sentence of 320 months, we review for plain error. United States v. Artley, 489 F.3d 813, 824 (7th Cir.2007). Under this standard, Navarro will prevail if he can demonstrate that: (1) there was an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected Navarro's substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ; Artley, 489 F.3d at 824 ; United States v. Salazar, 453 F.3d 911, 913 (7th Cir.2006).

The plea agreement contains at least two relevant provisions. In paragraph three, "[t]he Government agree[d] to recommend a sentence within the range ultimately found by the Court." Plea Agreement ¶ 3. The government explicitly acknowledges on appeal that it breached this provision by recommending a sentence of 320 months and that the breach constitutes an error for purposes of the first prong of the plain error standard.

Additionally, in paragraph twelve, both the government and Navarro "agree[d] not to seek a sentence outside the applicable Guideline range." Id. ¶ 12 (emphasis omitted). The government does not respond to Navarro's argument that it also violated this provision at sentencing. We find that the government breached paragraph twelve of the plea agreement by suggesting that the court depart upward from the guidelines based on Navarro's management over the conspiracy's property. The plea agreement contemplated that the government would pursue an enhancement based on § 3B1.1(b)

. But the agreement barred the government from seeking an upward departure, as doing so constitutes "seek [ing] a sentence outside the applicable Guideline range." Id. ¶ 12; United States v. O'Neill, 437 F.3d 654, 662 (7th Cir.2006) ("[A]djustments and departures are distinctly different concepts under the Guidelines. Adjustments are changes to an offense level within the Guidelines. Departures, on the other hand, are sentences imposed outside the...