United States v. Wilson, 040419 FED2, 17-1896-cr

Docket Nº:17-1896-cr
Opinion Judge:GUIDO CALABRESI, CIRCUIT JUDGE
Party Name:UNITED STATES OF AMERICA, Appellee, v. TYRONE WILSON, AKA BISCUIT, AKA YOUNG BRICKY, JOSEPH GARCIA, AKA JO JO, MUSA MARSHALL, AKA SLIM, CRYSTAL LEWIS, AKA EBB, VERDREEA OLMSTEAD, AKA AUNTIE, JOSEPH RANDOLPH, AKA RIZZLE, JOSEPH VALENTIN, AKA J., TYHE WALKER, AKA G.I.B., AKA GUY IN THE BUSHES, ALGENIS CARABELLO, AKA HIGH-HENNY, JORGE MEJIA, AKA M...
Attorney:JILLIAN S. HARRINGTON, Monroe Township, N.J. (Martin J. Siegel, on the brief, New York, NY), for Defendant-Appellant. RENA PAUL, Assistant United States Attorney (Richard P. Donoghue, United States Attorney for the Eastern District of New York, Amy Busa, Samuel Nitze, David Lizmi, Assistant Unite...
Judge Panel:Before: JACOBS, CALABRESI, Circuit Judges, RAKOFF, District Judge.
Case Date:April 04, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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UNITED STATES OF AMERICA, Appellee,

v.

TYRONE WILSON, AKA BISCUIT, AKA YOUNG BRICKY, JOSEPH GARCIA, AKA JO JO, MUSA MARSHALL, AKA SLIM, CRYSTAL LEWIS, AKA EBB, VERDREEA OLMSTEAD, AKA AUNTIE, JOSEPH RANDOLPH, AKA RIZZLE, JOSEPH VALENTIN, AKA J., TYHE WALKER, AKA G.I.B., AKA GUY IN THE BUSHES, ALGENIS CARABELLO, AKA HIGH-HENNY, JORGE MEJIA, AKA MOOSE, AKA MUSSOLINI, RONALD HERRON, AKA RA, AKA RA DIGGS, AKA RA DIGGA, AKA RAHEEM, Defendants, SHONDELL WALKER, AKA M-DOT, Defendant-Appellant.

No. 17-1896-cr

United States Court of Appeals, Second Circuit

April 4, 2019

Argued: December 12, 2018

Appeal from the judgment of the United States District Court for the Eastern District of New York (Garaufis, J.) sentencing Defendant Walker to 360 months in prison and five years of supervised release for a single count of conspiring to distribute at least 200 grams of crack cocaine in violation of 21 U.S.C. § 846. Walker pled guilty in October 2011 pursuant to a plea agreement in return for an estimated sentence of 108 to 135 months in prison. The District Court, at the Government's request, then postponed Walker's sentencing hearing while a trial proceeded against Walker's co-defendant. After that trial concluded, Walker's sentencing hearing was held in May 2017. At the hearing, the Government asked for a significant sentence increase based in part on information that arose during the co-defendant's trial but which the Government knew about at the time it negotiated Walker's plea agreement. The District Court accepted the Government's new estimate and sentenced Walker to 360 months in prison. We now vacate Walker's sentence. We hold that the Government breached Walker's plea agreement when the Government, based on information that it knew at the time of the plea, sought a substantially higher sentence than that estimated in Walker's plea agreement. Accordingly, we VACATE Walker's sentence and REMAND the case to a different district court judge for resentencing under Walker's plea agreement.

JILLIAN S. HARRINGTON, Monroe Township, N.J. (Martin J. Siegel, on the brief, New York, NY), for Defendant-Appellant.

RENA PAUL, Assistant United States Attorney (Richard P. Donoghue, United States Attorney for the Eastern District of New York, Amy Busa, Samuel Nitze, David Lizmi, Assistant United States Attorneys, on the brief), Brooklyn, NY, for Appellee.

Before: JACOBS, CALABRESI, Circuit Judges, RAKOFF, District Judge. [*]

GUIDO CALABRESI, CIRCUIT JUDGE

This case presents the question of whether the Government breaches a plea agreement when it agrees to an estimated sentence-known as a "Pimentel estimate"-in a defendant's plea bargain, then advocates for a substantially higher sentence at the defendant's sentencing hearing on the basis of information known to the Government at the time of the agreement.

We have previously held that allegations of breached plea agreements depend on what "the reasonable understanding and expectations of the defendant [were] as to the sentence for which he had bargained." Paradiso v. United States, 689 F.2d 28, 31 (2d Cir. 1982) (per curiam). Here, Defendant- Appellant Shondell Walker agreed to a Pimentel estimate of 108-135 months' imprisonment when he pled guilty in 2011, and the Government agreed that it would not deviate from this estimate in the absence of new information. Walker's sentencing hearing was then delayed for six years, in substantial part due to the Government's request that sentencing be postponed while a trial proceeded against a co-defendant. At the end of this trial, the Government sought several sentencing enhancements based on information that became evident during trial but which the Government knew about at the time it negotiated Walker's plea deal. Ultimately, the Government argued that Walker ought to be sentenced to 360 months to life in prison.

We hold that, under these circumstances, Walker could not have reasonably expected that the Government would change its position in such a manner when he consented to the Pimentel estimate in his plea bargain, and therefore that the Government breached the plea agreement. Accordingly, we VACATE Walker's sentence and REMAND for resentencing under the original plea agreement.

BACKGROUND

On October 5, 2010, pursuant to a surveillance operation conducted by the New York Police Department ("NYPD") and the Drug Enforcement Agency ("DEA"), defendant Shondell Walker and two others were arrested during a traffic stop.

That same day, the Government filed a criminal complaint against Walker in the United States District Court for the Eastern District of New York. The complaint stated that "[f]or the past several years, the NYPD and the DEA have been investigating a violent criminal organization based in the Gowanus Houses, a public housing development in the Boerum Hill section of Brooklyn." Compl. ¶ 2. "For the better part of the last three years, these defendants have controlled the distribution of crack cocaine and heroin in the Gowanus Houses." Id. ¶ 2. "During the course of this investigation, law enforcement has, among other things, made numerous undercover purchases of crack cocaine directly from members of this crew." Id. ¶ 3. "In addition, . . . NYPD has executed various search warrants and arrested various individuals associated with this organization. These search warrants . . . have resulted in the seizure of . . . substantial quantities of crack cocaine . . . ." Id. ¶ 4.

The complaint explained that Walker was "regularly involved in the distribution of crack cocaine in the Gowanus Houses for an individual identified as Ronald Herron, who was the leader of this criminal organization." Id. ¶ 6 (capitalization and footnotes removed). Walker "worked with this organization and served as one of Herron's primary security guards and enforcers." Id. ¶ 7. For instance, Walker would "regularly accompany Herron to narcotics transactions and carry firearms for Herron." Id. ¶ 7. "Walker would also help to protect Herron's narcotics territory . . . by, for example, robbing or attacking rival narcotics traffickers." Id. ¶ 7. And one cooperating witness "stated that he and Walker participated in a shooting against a rival narcotics trafficker." Id. ¶ 7. Moreover, Walker had previously been arrested in association with this criminal organization when he was discovered in an apartment where the NYPD also found heroine and crack cocaine. Id. ¶ 5.

Walker and eleven other co-defendants were eventually charged in a multi-count indictment for participation in the Gowanus Houses drug conspiracy.

On October 6, 2011, Walker pled guilty-pursuant to a plea agreement with the Government-to a single count of conspiring to distribute at least 200 grams of crack cocaine in violation of 21 U.S.C. § 846. In turn, the Government "estimate[d] [Walker's] likely adjusted offense level under the Guidelines to be level [29], which is predicated on the following Guidelines calculation:" (1) a base offense level of 30 points derived from the 200 grams of crack cocaine distribution, see U.S.S.G. §§ 2D1.1(a)(5), (c)(5); (2) a 2-point enhancement for possession of a weapon based on a firearm recovered from the vehicle during Walker's arrest, see id. § 2D1.1(b)(1); and (3) a 3-point reduction for acceptance of responsibility, see id. §§ 3E1.1(a), (b). App. 90-91. This resulted in an estimated Guidelines sentence of 108-135 months.

The plea agreement also stated, in relevant part: 3. The Guidelines estimate set forth . . . is not binding on the Office, the Probation Department or the Court. If the Guidelines offense level advocated by the Office, or determined by the Probation Department or the Court, is, for any reason, including an error in the estimate, different from the estimate, the defendant will not be entitled to withdraw the plea and the government will not be deemed to have breached this agreement. . . .

5. The Office agrees that . . . based upon information now known to the Office, it will . . .

b. take no position concerning where within the Guidelines range determined by the Court the sentence should fall; and c. make no motion for an upward departure under the Sentencing Guidelines.

If information relevant to sentencing, as determined by the Office, becomes known to the Office after the date of this agreement, the Office will not be bound by paragraphs 5(b) and 5(c).

App. 91-93.

The Probation Department subsequently prepared a Pre-Sentence Report ("PSR") for Walker on January 3, 2012, in which it agreed with the Government's estimated Guidelines sentence. According to the PSR, Walker worked as an "enforcer" for the conspiracy and "carried a firearm as part of his role in the organization in order to protect himself, the drug proceeds, and the locations on the block where the crack cocaine was sold." PSR ¶ 11...

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