United States v. Purser

• Decision Date: 26 March 2014
• Docket Number: No. 12-20542,12-20542
• Parties: UNITED STATES OF AMERICA Plaintiff - Appellee v. CHRISTOPHER PURSER, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

UNITED STATES OF AMERICA Plaintiff - Appellee v. CHRISTOPHER PURSER, Defendant - Appellant

No. 12-20542

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED: March 25, 2014

REVISED MARCH 26, 2014

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Christopher Purser pled guilty to a charge of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 and appeals his sentence on several grounds. The Government contends that he is barred from doing so because of an appeal waiver contained within his plea agreement. We enforce the appeal waiver and dismiss the appeal.

I

Christopher Purser was indicted for several finance-related crimes and ultimately pled guilty to Count One, which charged him with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. As part of his pleaagreement, Purser agreed "to waive the right to appeal the sentence imposed or the manner in which it was determined." However, he reserved the right to appeal a sentence above the statutory maximum or one resulting from either an upward departure or upward variance. In the plea agreement, he acknowledged that the district court had not yet determined his sentence, that his plea was not induced by any estimates of his possible sentencing range, and that the Government had not made "any promise or representation" concerning the sentence that he would receive.

In exchange, the Government agreed to (1) move to dismiss the remaining counts of the indictment; (2) not oppose Purser's request for a 2-level downward adjustment for acceptance of responsibility;¹ (3) request, if appropriate, an additional 1-level downward adjustment;² (4) not seek an upward departure or variance, and (5) recommend a sentence at the "low end of the Sentencing Guidelines." Finally, the Government agreed to the following conditions in Paragraph 13(f):

The United States and the defendant will recommend to the Court and the United States Probation office that the following aspects of U.S.S.G. § 2B1.1 should apply:

1. Base level offense is 7, as per U.S.S.G. § 2B1.1(a)(1);

2. The Specific Offense Characteristic of § 2B1.1(b)(1)(J) applies;

3. The Specific Offense Characteristic of § 2B1.1(b)(2)(B) applies;

4. The Specific Offense Characteristic of § 2B1.1(b)(8)(C) applies; and

5. The Specific Offense Characteristic of § 2B1.1(b)(9) applies.

But the Government specifically reserved, inter alia, its right to "set forth or dispute sentencing factors or facts material to sentencing."

The original PSR was made available on April 24, 2012. The original PSR had a total offense level of 37. The offense level was calculated using the base offense level of 7;³ increased by 18 levels because the loss exceeded $2,500,000;⁴ increased by 4 levels because there were more than 50, but less than 250, victims;⁵ increased by 2 levels because the offense involved a violation of a prior judicial or administrative order;⁶ increased by 2 levels because the scheme was relocated to another jurisdiction and partly committed outside the United States;⁷ increased by 2 levels because Purser abused a position of trust;⁸ and increased by 2 levels for obstruction of justice.⁹ Combined with Purser's criminal history category of III, this yielded a Guidelines range of 262—327 months.

The Government initially objected that Purser should not have received a 4-level increase under § 2B1.1(b)(2)(B), but rather a 6-level increase under § 2B1.1(b)(2)(C), because the offense involved 250 or more victims. The Government subsequently withdrew this objection, noting that as part of the plea agreement it had agreed that § 2B1.1(b)(2)(B) was appropriate, and urged the application of the lesser enhancement. The Government also objected that Purser should have received a 4-level increase pursuant to § 3B1.1(a) becausehe was an organizer or leader of a criminal activity involving five or more participants.

Purser objected that he should have received a 2-level decrease under § 3B1.2 due to a minor role in the conspiracy. He also objected to the 2-level increase due to an abuse of a position of trust and the 2-level increase due to obstruction of justice.

The revised PSR responded to these objections. As to the § 2B1.1(b)(2)(B) and § 2B1.1(b)(2)(C) issue, the probation officer acknowledged that the Government withdrew its objection, but noted that the plea agreement only bound the Government and Purser. As a result, she recommended a 6-level increase anyway because the offense involved 250 or more victims—adding 2 levels from the previous 4-level increase. The probation officer also agreed with the Government and recommended a 4-level increase under § 3B1.1(a) because Purser was an organizer or leader—adding 4 more levels. The probation officer rejected Purser's proposed adjustment under § 3B1.2 for a minor role. She also rejected Purser's objection to the abuse of trust adjustment. But the probation officer did agree that the 2-level adjustment for obstruction of justice was inapplicable—subtracting 2 levels. Finally, she credited Purser with a 3-level acceptance of responsibility adjustment—subtracting another 3 levels. Therefore, the total offense level was 38.

Purser again objected: this time, to the 6-level increase under § 2B1.1(b)(2)(C) and the 4-level increase under § 3B1.1(a); he reasserted a claim to the minor role adjustment under § 3B1.2; and he renewed his objection to the abuse of trust adjustment. Purser argued that the Government had breached the plea agreement by recommending a § 2B1.1(b)(2)(C) adjustment, that its withdrawal of that recommendation was not sufficient to cure the breach, and that Purser was entitled to specific performance of the plea agreement. At the sentencing hearing, Purser also argued that the Government had breached an "implicit" commitment not to seek further adjustments outside of those specifiedin the plea agreement by arguing in favor of the § 3B1.1(a) enhancement. Finally, Purser filed a motion for downward variance arguing that his prison exposure was twice that of his co-defendants, including Steve Mills, his former boss.

At the sentencing hearing, the district court rejected the minor role adjustment under § 3B1.2 that Purser sought. However, the court did sustain the objection to the abuse of trust adjustment—thus, reducing the offense level by 2 levels. As to the two theories of plea breach, the district court rejected both. With regard to the argument that the Government breached the plea agreement by initially seeking a 6-level § 2B1.1(b)(2)(C) enhancement—an enhancement the Government admitted it had mistakenly sought and now urged against at sentencing—the district court decided to err on the side of caution:

THE COURT: All right. In order to avoid any argument that the Government breached the plea agreement by its initial objection to Paragraph 59, I'm going to rule that the enhancement for number of victims should be plus four.

My concern is that the Government's original objection may have motivated closer scrutiny by the probation officer to the number of victims, although the addendum disavows that and says that the increase was based solely on the probation officer's own review of the evidence.

I think in order to be absolutely careful, the increase for the number of victims will be plus four instead of plus six. That should eliminate any possible objection that the Government has breached the plea agreement by urging a greater number of victims.

Thus, the court applied the 4-level adjustment under § 2B1.1(b)(2)(B), not the 6-level adjustment under § 2B1.1(b)(2)(C)—reducing the offense level by another 2 levels. As for the argument that the Government breached the plea agreement by seeking a § 3B1.1(a) adjustment, the district court stated that "nothing in Paragraph 13(f) deals with an aggravating role adjustment." Accordingly, thecourt concluded that there was "no credible argument that the Government breached the plea agreement by requesting an increase for the Defendant's role in the offense." The total offense level was now 34. The court sentenced Purser at the bottom of the applicable Guidelines range to 188 months of imprisonment. Finally, the court denied the motion for downward variance because it was "persuaded that the facts of this case do not justify a variance."

Purser timely filed a notice of appeal, and the present appeal follows.

II

In his plea agreement, Purser "agree[d] to waive the right to appeal the sentence imposed or the manner in which it was determined." The plea agreement does allow him to appeal "a sentence imposed above the statutory maximum, any upward departure, or upward variance." However, since the present appeal does not fit within this narrow exception, the first question is whether the appeal waiver bars Purser's current appeal. At oral argument, the Government seemed to take the position that it would be willing to forgo the assertion of the appeal waiver clause, if this Court could reach the merits in its favor. However, in supplemental briefing submitted after the oral argument, it is clear that the Government is still asserting the appeal waiver.

Purser argues that the appeal waiver is void because the Government breached the plea agreement. The Government argues that there was no breach.¹⁰ An "alleged breach of a plea agreement may be raised despite a waiverprovision."¹¹ Thus, we can properly reach the first question of whether the Government breached the plea agreement during the course of the proceedings below.

Whether the Government has breached a plea agreement is a question of law that this Court reviews de novo.¹² As the Supreme Court has made clear, "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."¹³ In deciding whether the Government violated a...