United States v. Warren

• Decision Date: 09 August 2021
• Docket Number: No. 20-3045,20-3045
• Citation: 8 F.4th 444
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Davian WARREN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

8 F.4th 444

UNITED STATES of America, Plaintiff-Appellee,

v.Davian WARREN, Defendant-Appellant.

No. 20-3045

United States Court of Appeals, Sixth Circuit.

Argued: April 22, 2021

Decided and Filed: August 9, 2021

ARGUED: Matthew Ahn, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Matthew Ahn, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Kathryn G. Andrachik, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: WHITE, NALBANDIAN, and READLER, Circuit Judges.

NALBANDIAN, J., delivered the opinion of the court in which WHITE and READLER, JJ., joined. NALBANDIAN, J. (pp. 451–53), also delivered a separate concurring opinion

NALBANDIAN, Circuit Judge.

This case is déjà vu all over again. Davian Warren pled guilty to being a felon in possession of a firearm. The district court sentenced him to ten years in prison—the statutory maximum. We vacated that sentence, holding it substantively unreasonable, and sent the case back to the district court for resentencing. That second effort, which produced a 96-month sentence, is before us now.

Warren mounts two attacks on his new sentence. Like before, he argues his sentence is substantively unreasonable. But that's not all. This second time around, Warren says the government breached his plea agreement at his resentencing. And he's right. Looking to the plain meaning of the plea agreement, the government did not live up to its end of the bargain. So we VACATE Warren's sentence for a second time and REMAND his case for resentencing before a different district court judge.

I.

This case began after a grand jury indicted Warren for being a felon in possession of a firearm. Warren eventually pled guilty with the benefit of a written plea agreement. The agreement bound the parties to "recommend that the Court impose a sentence within" Warren's Guidelines range—which turned out to be 51 to 63 months. (R. 27, Plea Agreemnt at 4, PageID # 76; R. 38, Presentence Investigation Report at 16, PageID # 161.) And it prohibited either party from "suggest[ing] in any way that a departure or variance" from Warren's Guidelines range "is appropriate." (R. 27, Plea Agreement at 4, PageID # 76 (emphasis added).)

After Warren entered the plea agreement but before sentencing, the district court notified Warren that it was considering an upward variance. And the court was true to its word. After Warren's first sentencing hearing, the district court sentenced him to 120 months in prison—nearly doubling the high end of Warren's Guidelines range. Warren appealed. He said his sentence was substantively unreasonable because the district court relied exclusively on his criminal history in varying upward by almost 60 months. See United States v. Warren , 771 F. App'x 637, 640 (6th Cir. 2019).

We agreed with him. We reasoned that "because the Guidelines already account for a defendant's criminal history," the district court's "extreme variance" based solely on Warren's criminal history was "inconsistent with the need to avoid unwarranted sentence disparities." Id. at 642 (quotations omitted). So we vacated Warren's sentence and remanded his case for resentencing.

After the case went back down, the district court again circulated a notice of possible upward variance. Then came Warren's resentencing. Early in the hearing, the court asked the parties to discuss the potential variance. Warren's attorney started off by urging the court to impose a Guidelines sentence because "all agreed that a guideline range was the appropriate sentence here." (R. 73, Tr. at 8, PageID # 444.)

After the court asked for the government's general position, the prosecuting attorney began by stating that she "wanted to clarify something that defense counsel brought up because she is asking the Court to have a standard of reliance upon this." (Id. at 27, PageID # 463.) The prosecuting attorney acknowledged the existence of a plea agreement, which "the government did enter" and which "the government has no intention of violating." (Id. ) But she continued:

[B]ecause defense counsel brought up that this is what was recommended to the Court, I want to make sure it's very clear to the Court that the government was aware of prior convictions. But the government does not normally have the benefit of the offense conduct surrounding those convictions. So in the two instances where the defendant has convictions for felonious assault or attempted felonious assault ... at the time the government entered into the plea agreement, it did not know that both of those were not just convictions for felonious assault, that those actually arose out of actual shootings.... [T]here were two people that were shot at [in the first felonious assault].... I believe [the second felonious assault] was a discharge at a vehicle which contained [Warren's] own family members. And there were three people inside of that car. So I just want to make sure that the Court is aware that the government did not have that information at the time that it entered into the plea agreement and quite probably would have made different recommendations had it known that information .

(Id. at 27–28, PageID # 463–64 (emphasis added).) Warren's attorney immediately objected and then raised another objection later. In her view, the government's argument suggested to the court that it "should not follow the plea agreement but should instead give Mr. Warren more time." (Id. at 28, PageID # 464.)

The district court disagreed with this characterization. It construed the government's comment simply as explaining "why and how it is they came about to enter the [plea] agreement." (Id. ) And for her part, the prosecuting attorney later clarified that she was "not going to argue for a sentence higher than 63 months" because she was "bound by the plea agreement." (Id. at 30, PageID # 466.) She explained she made her prior remarks "because defense counsel raised an importance [sic] that this Court rely on the government's recommendation of that range." (Id. ) She finished her remarks by repeating her earlier sentiment that "had the government had different information, perhaps it might have done something differently," arguing that it ultimately did "not matter" because the "government can only recommend at this point ... a sentence within the guideline range." (Id .) And the court agreed with her—it did not view the prosecution's comments "as in any way repudiating the plea agreement." (Id. at 33, PageID # 469.)

After this back-and-forth, the district court sentenced Warren to 96 months in prison. The court began by explaining its reasons for this sentence. It listed many: Warren's excuse for his crime was not credible; his criminal record is extensive; his history involves not just carrying but firing guns and injuring people with them, including his own family; he fled police multiple times; previous sentences were ineffective at deterring him; and he had multiple violent altercations in prison, even paralyzing his own brother after badly beating him. The court also acknowledged that Warren had a difficult upbringing and had "done some positive things" while in custody. (Id. at 43, PageID # 479.) Still, in the court's view, there was "no reasonable argument that a guidelines sentence" would "protect the public, reflect the seriousness of the offense, [or] improve the offender's conduct and condition." (Id. at 46, PageID # 482.) The district court then followed up sentencing with a memorandum further explaining its decision.

Warren now challenges his new sentence. He raises two main arguments. First, he says the government breached his plea agreement by telling the court it would not have entered the agreement had it known that Warren's felonious assault convictions involved shootings. Warren says this breach warrants resentencing before a different judge. And second, Warren argues that his sentence is substantively unreasonable.

Warren's first argument wins the day. The government indeed breached his plea agreement. And having concluded as much, we need not reach Warren's substantive-reasonableness challenge. We therefore vacate Warren's sentence and, following our precedent, remand his case for resentencing before a different district court judge.

II.

Because Warren objected to the government's alleged breach, we review whether the government breached his plea agreement de novo. United States v. Ligon , 937 F.3d 714, 718 (6th Cir. 2019). "[W]hen 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). In other words, a defendant has a due process right to hold the government to the promises it made that induced him to plead guilty. Id. ; see United States v. Barnes , 278 F.3d 644, 648 (6th Cir. 2002).

We treat plea agreements like contracts. Ligon , 937 F.3d at 718. So we use "traditional principles of contract law" to interpret them, and we enforce them according to their literal terms. Id. (quoting United States v. Lukse , 286 F.3d 906, 909 (6th Cir. 2002) ). But because defendants "waive[ ] certain fundamental rights" when they enter plea agreements, Barnes , 278 F.3d at 647–48, we construe ambiguities against the government, United States v. Fitch , 282 F.3d 364, 367 (6th Cir. 2002). And we hold prosecutors to "meticulous standards of performance." United States v. Moncivais , 492 F.3d 652, 662 (6th Cir. 2007) (quoting United States v. Vaval , 404 F.3d 144, 152–53 (2d Cir. 2005) ).

To satisfy these high standards, the government must do more than pay lip service to its obligations—we forbid "not only explicit repudiation of the government's assurances" but also "end-runs around them." Id. (quoting United States v. Saxena , 229 F.3d 1, 6 (1st...