United States v. Whitney

• Decision Date: 07 March 2012
• Docket Number: No. 10–10118.,10–10118.
• Citation: 2012 Daily Journal D.A.R. 3097,673 F.3d 965,109 A.F.T.R.2d 2012,12 Cal. Daily Op. Serv. 2752
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Scott Edward WHITNEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

109 A.F.T.R.2d 2012-1314

12 Cal. Daily Op. Serv. 2752

2012 Daily Journal D.A.R. 3097

673 F.3d 965

UNITED STATES of America, Plaintiff–Appellee,

v.Scott Edward WHITNEY, Defendant–Appellant.

No. 10–10118.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 11, 2011.Filed March 7, 2012.

Tim Warriner, Sacramento, CA, for the appellant.

Samantha S. Spangler (argued), Assistant United States Attorney, Benjamin B. Wagner, United States Attorney, Sacramento, CA, for the appellee.

Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, Senior District Judge, Presiding. D.C. No. 2:09–cr–00149–FCD–2.Before: BETTY B. FLETCHER, STEPHEN REINHARDT, and A. WALLACE TASHIMA, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

Scott Edward Whitney appeals his 87–month sentence on a guilty plea to a one-count indictment under 18 U.S.C. § 286. He contends that the U.S. Attorney breached the parties' plea agreement by disclosing admissions made by Whitney while cooperating with the government, and by urging imposition of a sentence above the low end of the Sentencing Guidelines. He also contends that the district court erred by improperly imposing a two-level leadership enhancement. We hold that the breach of the plea agreement by the U.S. Attorney resulted in plain error that affected Whitney's substantial rights. We additionally hold that the district court committed clear error when it imposed a two-level role enhancement for Whitney's alleged role as a leader or organizer pursuant to U.S.S.G. § 3B1.1(c). Accordingly, we vacate Whitney's sentence and remand for resentencing before a different judge.¹

BACKGROUND

Scott Edward Whitney entered into a plea agreement with the government in which he agreed to plead guilty to one count of conspiracy to defraud the government by filing false claims, 18 U.S.C. § 286. This charge was based on Whitney's role in a scheme to file false tax returns using inmate identities and personal information while he was incarcerated in Herlong Federal Correctional Institution (“Herlong”) for a similar offense. In exchange for Whitney's guilty plea, his promise of full cooperation with the government, and a limited waiver of his right to appeal, Whitney received from the government a number of promises related to sentencing. Among those relevant to this appeal are the government's representations that it would recommend to the court that Whitney be sentenced to the low end of the applicable guideline range for his offense, and that in its effort to establish the applicable sentencing guideline range it would not use any incriminating information divulged by Whitney during the course of his cooperation.² The plea agreement included a number of stipulations regarding the calculation of Whitney's sentence, including his base offense level, but contained no stipulation related to his role in the offense. To the contrary, the plea agreement explicitly reserved to both the defendant and the government the right to argue their respective positions as to whether Whitney should receive a two-level enhancement for his role in the offense. ³ The agreement also precluded either party from arguing in support of any departure from the Sentencing Guidelines.

The presentence report identified three participants: Whitney, Paucar, who was another Herlong inmate who recruited Whitney to participate in this scheme, and Alexander, also a Herlong inmate, who was connected to the scheme through Paucar. It also reported that the investigating IRS agents were unable to discover whether the inmates identities and personal information used to complete the tax returns were obtained fraudulently or were supplied voluntarily by the inmates named on the returns. According to the report, at Paucar's request Whitney supplied him with tax forms and information on filing false returns. Whitney admitted to filing his own false return as well as false returns using other inmates' identities.

The presentence report concluded that Whitney should receive a two-level upward role adjustment pursuant to U.S.S.G. § 3B1.1, based on his role managing the completion of the fraudulent tax forms. The probation officer determined that based on Whitney's criminal history category and offense level, including the two-level role enhancement, the corresponding sentencing guideline range was 41 to 51 months. The probation officer nonetheless suggested an upward departure to 87 months to reflect the seriousness of the offense and Whitney's lengthy criminal history.

At Whitney's sentencing, the judge took note of the presentence report and commented on Whitney's “impressive” criminal history. The judge heard first from Whitney's attorney, Dorfman, who pointed out that the plea agreement permitted him to argue that Whitney should not receive a role enhancement. Dorfman did not contest the findings included in the presentence report, but asserted that its conclusion was incorrect and contended that the enhancement was not appropriate because Whitney was not a leader or organizer but rather was recruited by Paucar, as described in the report. Dorfman challenged the upward departure urged in the presentence report claiming that Whitney “doesn't harm society physically. He may harm society by being a thief, but he's not a good thief.... This is not a violent person.”

When the Assistant U.S. Attorney (“AUSA”) addressed the court, she stated that the government was “recommending the low end of the guidelines as we have obligated ourselves to do.” She then urged the imposition of the role enhancement, contending that while “Mr. Whitney is not the brain power behind this particular scheme ... he did take a leadership role.” She went on to say:

I have to tell you this puts me between a rock and a hard spot. On the one hand when I sat down with Mr. Whitney I agreed not to use any of his information supplied to us during his debriefing against him for sentencing purposes. On the other hand, he's now trying to pull something that I can't let him get away with. I have to be honest. He's supplied information to me during his debriefing session that put himself in a supervisory role, a two-level increase. I can't just ignore that and say: No it did not happen, to be honest with the court. Whether he's a thief but not a good one, I think it's important for the court to realize that one of his supervised release violations provides that essentially he was using the information from the underlying case to try to re-victimize the victims. He was using fraudulently obtained information to try to re-victimize the victims in the case. So I think that rebuts the claim that he's not a good thief.

The court responded, calling Whitney an “incorrigible narcissistic thief” and predicted that he would inevitably re-offend by again stealing identities. The court determined that Whitney should receive the two-level role enhancement, citing his “complicit[y]” in the fraud, and recognizing that although “no one says [Whitney] is the ring leader as such[, he is] the guy that facilitated the crime.” With this two-level enhancement, Whitney's adjusted offense level was fifteen. Combined with his criminal history category of six, the corresponding guideline sentence was 41 to 51 months. The court departed upward from the guidelines to impose a sentence of 87 months, citing the “protection of the public and deterrence” as the primary bases for its departure. Whitney appealed his sentence.

DISCUSSION

I.

A defendant's claim that the government breached its plea agreement is generally reviewed de novo. See United States v. Mondragon, 228 F.3d 978, 980 (9th Cir.2000). In this case however, Whitney's counsel failed to object to the prosecutor's statements at sentencing. When a defendant forfeits his claim by failing to make a timely objection, we must review that claim for plain error. United States v. Cannel, 517 F.3d 1172, 1175–77 (9th Cir.2008); see also Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009) (holding that a procedurally forfeited error is subject to plain error review). “Relief for plain error is available if there has been (1) error; (2) that was plain; (3) that affected substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Cannel, 517 F.3d at 1176.

A. Clear Breach

The Supreme Court has recognized that the government's breach of the parties' plea agreement is “undoubtedly a violation of the defendant's rights.” Puckett, 129 S.Ct. at 1429. In this case, the U.S. Attorney breached the plea agreement in two respects. First, the AUSA stated that she had “agreed not to use any of [Whitney's] information supplied ... during his debriefing against him for sentencing purposes,” but went on to tell the court that Whitney “supplied information to [her] during his debriefing session that put him[ ] in a supervisory role.” Not only was this statement in clear breach of the plea agreement, but the government admitted that it was violating the agreement in the course of the very same statement.⁴

Second, the government breached its agreement by implicitly arguing for a sentence greater than the terms of the plea agreement specified that the prosecution would recommend: the low end of the applicable guideline range. Although a sentencing recommendation need not be made enthusiastically, United States v. Johnson, 187 F.3d at 1135, when the government obligates itself to make a recommendation at the low end of the guidelines range, it may not introduce information that serves no purpose but “to influence the court to give a higher sentence.” Id. This prohibition precludes referring to information that the court already has before it, including statements related to the seriousness of the defendant's prior record, Mondragon, 228 F.3d 978, “statements indicating a preference for a harsher sentence,” United States v....