United States v. Davis , 923 F.3d 228 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-2100
UNITED STATES OF AMERICA,
Appellee,
v.
BARRY DAVIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges,
and Katzmann,* Judge.
Jane F. Peachy, Assistant Federal Public Defender, for
appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
May 6, 2019
*Of the United States Court of International Trade, sitting
by designation.
LIPEZ, Circuit Judge. Appellant Barry Davis pleaded
guilty to sex trafficking crimes pursuant to a plea agreement and
was sentenced to 216 months of imprisonment. He seeks a new
sentencing hearing, claiming, in major part, that the prosecution
breached the plea agreement by providing information to Probation
and the court regarding victims of sex trafficking who were either
covered by counts that were dismissed as part of the plea
agreement, or who were never included in any counts in the
indictment. He argues that the government's actions constitute
prosecutorial misconduct invalidating his waiver of appeal. He
also contends that he was provided inadequate notice of victim
statements presented at the hearing.
After reviewing his claims, which are only partially
preserved, we affirm the sentence imposed.
I.
A. Plea Agreement
Davis was charged in a nine-count indictment with sex
trafficking by force, fraud, and coercion, in violation of
18 U.S.C. § 1591(a) and (b)(1) (Counts One, Three, Five, and
Eight); transportation of an individual with intent to engage in
prostitution, in violation of 18 U.S.C. § 2421 (Counts Two, Four,
Six, and Nine); and sex trafficking of a child by force, fraud,
and coercion, in violation of 18 U.S.C. § 1591(a), (b)(1), and
(b)(2) (Count Seven). Davis was initially charged in a four-count
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indictment with charges related to two women, A.Z. and T.B. The
nine-count superseding indictment added charges relating to three
additional women, A.O., N.S., and C.D.
Just before trial, Davis pleaded guilty to Counts One
through Four, Eight, and Nine, pursuant to a plea agreement. These
charges related to Davis's coercive sex trafficking of A.Z., T.B.,
and C.D. In return for Davis's guilty plea, the government agreed
to dismiss Counts Five through Seven, relating to his alleged
coercive sex trafficking of A.O. and N.S., a minor. The government
further agreed not to pursue additional charges relating to
obstruction of justice or witness tampering. The parties also
expressly agreed that "[n]othing in this Plea Agreement affects
the U.S. Attorney's obligation to provide the Court and the U.S.
Probation Office with accurate and complete information regarding
this case."
With respect to the sentencing guideline calculations,
Davis and the government jointly agreed that Davis's base offense
level is 34; his offense level should be increased by three in
accordance with the count grouping principles of U.S.S.G. § 3D1.4
"because there are a total of three groups with offense levels of
34" (A.Z., T.B., and C.D.), see infra note 2; and the offense level
should be reduced by three based on Davis's acceptance of
responsibility, for a total offense level (TOL) of 34. The plea
agreement is silent as to Davis's Criminal History Category (CHC).
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Nonetheless, the parties agreed that a sentence of incarceration
between 180 and 240 months would be reasonable and appropriate.
Finally, the plea agreement contained a waiver of Davis's right to
appeal his conviction and any sentence "within the agreed-upon
sentencing range." Davis "reserve[d] the right to claim that . .
. the prosecutor . . . engaged in misconduct that entitles [him]
to relief from [his] conviction or sentence."
B. Change of Plea Hearing, Presentence Report, Sentencing
Memoranda
At the change of plea hearing, Davis represented that he
had reviewed the plea agreement and understood the appellate
waiver.1 The government stated its belief that the guideline
sentencing range would be 188 to 235 months if Davis were found to
have a CHC of III, and 262 to 327 months if he were found to be a
career offender. Defense counsel indicated that Davis understood
these potential guideline ranges. In response to a question from
the court asking if the government expected to call witnesses at
the sentencing hearing, the government stated that it would "plan
on talking to the women who were involved in this case" to
determine if "they would like to either make an impact statement
1 Davis does not contend that his plea was not knowing and
voluntary, that he did not knowingly and voluntarily enter into
the plea agreement, or that he was not aware of the waiver of his
rights, including his rights of appeal. We have therefore omitted
the recitation of certain facts concerning these points.
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in court or in writing." The court and defense counsel then had
the following exchange regarding these women:
Court: They have absolutely every right under the
statutes to allocute, to present to the [c]ourt, but
[a]re we having an evidentiary hearing on the
[g]uidelines?
Defense Counsel: I don't think so, your Honor. We have
an agreement on the [g]uidelines as part of the plea
agreement, so I don't think there's going to be any
evidence.
Court: So at most it's going to be victim impact
statements, either orally or in writing?
Defense Counsel: That's right, your Honor.
The government subsequently submitted a statement of the
offense conduct to the U.S. Probation Department, and Probation
included it in the presentence report (PSR) with some editing.
The statement vividly describes Davis's history of "pimping" --
providing and withholding drugs and using violence to force young,
drug-addicted women into prostitution and then taking the
proceeds. In addition to describing Davis's conduct in 2015 with
A.Z., T.B., and C.D., the statement described his pimping of (1)
A.O., the victim in to-be-dismissed Counts Five and Six, in 2001;
(2) N.S., the minor victim in to-be-dismissed Count Seven, in 2003;
(3) C.G., an "unnamed victim/witness," in 2015; and (4) J.A., whom
Davis began pimping in 2013, and who was a witness to the counts
involving C.D. The PSR also included this statement: "The victims
in this instance are the women who were prostituted by the
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defendant. Victim letters have been sent. Any victim impact
letters received will be forwarded to the [c]ourt and the parties."
Probation calculated Davis's TOL as 35 -- one level
higher than specified in the plea agreement -- because it used a
larger number of victims. Rather than counting only A.Z., T.B.,
and C.D. (charged victims) as outlined in the plea agreement,
Probation also counted C.G. and J.A. (victims who were not charged
in the indictment).2 Probation further added two points to Davis's
criminal history score because he was on supervised release when
2The sentencing guidelines create specific rules for grouping
sex trafficking offenses. Pursuant to U.S.S.G. § 2G1.1(d)(1), the
count grouping principles in § 3D1.4 "shall be applied as if the
promoting of a commercial sex act or prohibited conduct in respect
to each victim had been contained in a separate count of
conviction." The special instruction to subsection (d)(1) further
provides:
[E]ach person transported, persuaded, induced, enticed,
or coerced to engage in . . . a commercial sex act . . .
is to be treated as a separate victim. Consequently,
multiple counts involving more than one victim are not
to be grouped together under §3D1.2 (Groups of Closely
Related Counts). In addition, subsection (d)(1) directs
that if the relevant conduct of an offense of conviction
includes the promoting of a commercial sex act . . . in
respect to more than one victim, whether specifically
cited in the count of conviction, each such victim shall
be treated as if contained in a separate count of
conviction.
§ 2G1.1, App. Note 5 (emphasis added). Pursuant to the guidelines,
then, Probation treated A.Z., T.B., C.D., C.G., and J.A., as if
they each had been covered by a separate count, even though C.G.
and J.A. had never been included as charged victims in the
indictment.
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he committed conduct involving J.A. His extensive criminal history
included convictions for assaults of A.O. and N.S. (victims in the
to-be-dismissed counts). Probation calculated a CHC of VI, which,
when combined with the TOL of 35, yielded a guideline sentencing
range of 292 to 365 months.
The government did not submit any objections to the PSR,
but Davis did. Of relevance to this appeal, he objected to: (1)
including information regarding A.O. and N.S. because he denied
the allegations, and the government had agreed to dismiss the
counts regarding those women; (2) including information regarding
C.G. and J.A. because he had not been charged with or admitted to
this conduct, and because "[t]he parties have agreed in the plea
agreement that [J.A. and C.G. are] not [] victim[s] for purposes
of calculating the guidelines"; (3) Probation's use of C.G. and
J.A. in calculating his TOL; and (4) Probation's CHC calculation,
particularly the addition of two points based on his conduct
involving J.A.
In his sentencing memorandum, Davis recommended a
sentence of 180 months and argued that his sentence should reflect
only the conduct to which he had pleaded guilty -- "the trafficking
of three adult women [A.Z., T.B., and C.D.] in 2015." He argued
that the court was precluded from considering additional conduct
"pursuant to the guidelines calculation agreed[] to by the
government." Although noting his "concerns," based on the
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statement of offense conduct submitted to Probation, that the
government "will not honor the terms of the plea agreement where
they agreed to a guideline calculation that includes only the three
victims to which [he] pled guilty," he "assum[ed] that the
government will join him in th[e] argument[] that there are only
three victims of the offense and that the guideline calculation
set forth in the plea agreement i[s] the correct one."
Nonetheless, he enclosed with his sentencing memorandum a letter
he had sent the government "reminding them of their obligations
pursuant to the plea agreement." In the letter, defense counsel
claimed that the government's submission of information concerning
A.O., N.S., C.G., and J.A. to Probation had "[e]ffected an end-
run around the plea agreement," and "request[ed] that the
government object to the PSR, insofar as it uses [conduct involving
A.O., N.S., C.G., and J.A.] to arrive at a different guidelines
calculation [than the plea agreement], and refrain from making
argument regarding those alleged victims at sentencing."
In its sentencing memorandum, the government recommended
a "severe sentence" of 240 months of incarceration based on Davis's
"conduct in exploiting the vulnerabilities of numerous young women
through psychological manipulation, force, and fear to prostitute
themselves for his sole benefit," as well as his "lifetime spent
violating the law." Pointing to the facts "set forth in detail in
the PSR" and Davis's seeming self-centeredness and lack of
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remorse,3 the government characterized him as "a dangerous predator
with no conscience." The government highlighted his state
convictions for assaulting A.O. and N.S., and noted, "[a]lthough
the counts involving both of these victims will be dismissed
pursuant to the plea agreement, the fact that he pled guilty [to
these assaults] belies his incredible claim that he is the actual
victim in this case." The government further noted that it
"expects the [c]ourt [at sentencing] will hear from a few of the
women [Davis] victimized. Their stories . . . will further
support the government's sentencing recommendation." Finally, the
government contended that "[t]he nature and circumstances of
[Davis]'s crimes simply do not warrant the leniency [he] is
requesting."
C. Sentencing Hearing
At the sentencing hearing, the district court accepted
"the binding plea agreement [that] puts the sentencing range at
between 180 and 240 months." Noting that the government had not
responded to Davis's objections to the PSR's guideline
calculation, the court speculated that the government may not
"care" about those calculations. The government responded:
No, your Honor, and it's our position, with the
agreed-upon range [in the plea agreement], it really
3In its sentencing memorandum and at sentencing, the
government referred to post-arrest statements and incidents
allegedly demonstrating Davis's lack of remorse and sense of
personal aggrievement that are not relevant to the present appeal.
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wasn't based on a [g]uideline range at the time. There
were some representations in the plea agreement as to
what we expected the offense level to be, and the
government, based on what it knew at the time and how it
viewed the counts that were charged, those
representations are still true. We believe then
Probation calculated it differently based on their view
of the [g]uidelines and the facts, but it doesn't matter
to the sentencing[.]
No. 1:16-cr-10133-PBS, Dkt. # 155, at *3-4 (emphasis added). The
district court noted that the government was "dismissing out two
of the victims" mentioned in the PSR and stated its intention to
"basically go along with the plea agreement" regarding the
guideline calculations. Therefore, the court accepted an offense
level of 34 and a CHC of IV, yielding a guideline sentencing range
of 210 to 262 months, substantially overlapping with the plea
agreement's recommended range of 180 to 240 months.
Turning to victim statements, the court asked, "which of
the three victims are we hearing from? Is it TB, AZ, and CD?"
That is, the court inquired as to whether it would be hearing from
the charged victims in the non-dismissed counts. The government
then described several written statements it would be presenting,
including a statement from a woman "who is not charged in the
indictment." The judge stated that she had not yet received any
statements and confirmed that defense counsel also had not yet
seen them. Defense counsel interjected that she was "not entirely
clear on who [will be] speaking," and the following colloquy
ensued:
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Defense Counsel: I've heard that there's one person
who's speaking for CD, who is a victim of one of the
counts that Mr. Davis pled guilty to. But to the extent
that the government wants to submit statements of other
people besides the three victims --
Court: Well, that's what got my concern up as to who
was speaking. Let's have the ones that are the charged
victims first, and then I'll address the other one.
The government presented statements by two women who
were victims in the non-dismissed counts -- T.B. and C.D.4 Both
statements described, in forceful and sometimes profane terms, the
emotional toll of Davis's crimes and his predatory nature. In her
statement, T.B. stated, "I would have never done this to myself.
I would have never crossed that line [into prostitution], but you
dragged me over it."
The government then expressed its intention to present
a statement by C.G., "who was not a charged victim or named victim
in the indictment." Defense counsel objected: "I don't think she
meets the definition of a crime victim under the [Crime Victims'
Rights Act, 18 U.S.C. § 3771]. Pursuant to the plea agreement,
the [g]uidelines calculation only contemplates . . . three groups
representing three victims." The court overruled the objection
but noted that C.G.'s statement "won't affect the [guideline]
calculations."
4 C.D. addressed the court, but T.B. was not present in the
courtroom and her statement was read by a victim advocate. There
was no statement by the third charged victim, A.Z., because she
had died of a drug overdose.
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In her brief statement, C.G. alleged that Davis had
initially posed as a drug dealer when he met her and "let[] the
other girl that was there tell me what the deal really was, because
the entire time you were a coward." She also recalled Davis
booking hotels with his autistic son to deflect suspicion, and she
opined that "any vulnerable population to you is just fair game,
whether it's an addict or a disabled child that's your own."
Lastly, the government presented a written statement by
A.O. Defense counsel objected "for the same reasons" stated in
her objection to the statement of C.G. The court overruled the
objection, and the government provided the statement to the court
and to defense counsel. After a pause for them to read it, the
court indicated that it had read the statement and asked defense
counsel if she had done so. Defense counsel replied that she had
"skimmed it" and that she again objected to its inclusion in the
record: "These charges [relating to A.O.] were dismissed by
agreement by the government, and yet . . . they get to put all
this in front of the [c]ourt, these kind of --[.]" Before defense
counsel could finish her statement, the court interjected to again
overrule the objection. A.O.'s statement forcefully recounted the
emotional toll of being "pulled into a life of prostitution" by
Davis and described his brutal assault of her -- for which he was
previously convicted -- as well as his attempts to "find [her] and
get [her] back" after she escaped his control.
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The prosecutor began her sentencing argument by "asking
that the [c]ourt impose a 20-year sentence" -- 240 months (the top
of the agreed-upon sentencing range) -- because "[f]ifteen years,
the mandatory minimum, is just simply not enough to reflect what
this defendant has done to so many people over the course of 15
years." She rehearsed his criminal history, his alleged lack of
remorse, his use of physical force to conduct his pimping, and his
purported nature as a "predator" who sought out "the most
vulnerable women he could find." She again referred to the
appropriateness of a twenty-year sentence. In concluding she said,
"I'm asking you to sentence him to twenty years, which is every
single day that he deserves."
Defense counsel advocated for the mandatory minimum
sentence of fifteen years -- 180 months -- based on Davis's
difficult background and a contention that the victims "were
damaged individuals before they ever met" him. She contrasted his
crimes with cases "involv[ing] minors" and concluded, "for
somebody like Mr. Davis who's been convicted of trafficking three
adult women [] basically over [] weekend trips in 2015, I think 15
years is an appropriate sentence that is consistent with what other
defendants convicted of similar crimes receive for sentences."
Following Davis's allocution, in which he expressed
great remorse, the court began its consideration of the sentence
by reviewing the sentencing factors prescribed by 18 U.S.C.
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§ 3553(a). The court highlighted the nature of the offense: "As
the victims' statements indicate, this is an extremely serious
offense because it involves human trafficking of vulnerable women
who are addicted to heroin." The court was especially struck by
Davis's "persistent" use of violence, "a level of violence that I
don't remember in the very few [human trafficking cases] that I've
had." The court also noted that "the statements of the young women
are so different really . . . but each of them suffered greatly at
your hands." After considering Davis's statements of remorse in
his allocution and his difficult background, the court imposed a
sentence of 216 months, because his crimes "merit above the
mandatory minimum." This timely appeal followed.
II.
A. Breach of Plea Agreement
Davis contends that the government breached the plea
agreement when it "broke its promise . . . to advocate for a
guideline calculation that included only three victims."
Specifically, Davis argues that the government breached the
agreement by (1) including facts pertaining to A.O., N.S., C.G.,
and J.A. (again, victims in to-be-dismissed counts and victims who
were never included in charged counts) in the statement of offense
conduct it sent to Probation; (2) not objecting to the PSR's
guideline calculations; (3) not addressing the sentencing
guidelines in its sentencing memorandum and instead emphasizing
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the number of women Davis had victimized; (4) "begrudgingly"
advocating for the guideline calculation in the plea agreement at
the sentencing hearing; and (5) presenting the statements by C.G.
and A.O.
1. Appellate Waiver
As a threshold matter, we must determine whether the
appellate waiver in the plea agreement bars Davis's appeal as to
his breach claim. On its face, the appellate waiver bars his
appeal because he was sentenced within the range specified. Davis
maintains, however, that his breach claim falls within the waiver
exemption for a claim that the government "[1] engaged in
misconduct [2] that entitles [Davis] to relief." We agree that
Davis's breach claim falls within the plain language of the
exemption. See United States v. Morales-Arroyo, 854 F.3d 118, 120
(1st Cir. 2017) (applying an appellate waiver based on its plain
language and noting that "[w]e interpret plea agreements under
basic contract principles"). Davis's claim that the government
deliberately breached the plea agreement is a claim of
"misconduct." See United States v. Atwood, 963 F.2d 476, 478 (1st
Cir. 1992) ("[T]he appeal zeroes in on alleged prosecutorial
misconduct, appellant claiming that the government breached a
material term of a binding plea agreement."). If the government
did in fact engage in misconduct by breaching the plea agreement,
Davis would also likely be "entitle[d] to relief." See United
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States v. Irizarry-Rosario, 903 F.3d 151, 154 (1st Cir. 2018),
cert. denied, 139 S. Ct. 1201 (2019) ("[T]he government must keep
its promises or the defendant must be released from the bargain."
(quoting United States v. Kurkculer, 918 F.2d 295, 297 (1st Cir.
1990)). Thus, we will proceed to consider Davis's breach claim on
the merits.
2. Standard of Review
We review de novo preserved claims that the government
breached a plea agreement. United States v. Almonte-Nuñez, 771
F.3d 84, 89 (1st Cir. 2014). However, when a defendant fails to
object to the alleged breach "at the sentencing hearing, [we]
review[] for plain error." United States v. Gonczy, 357 F.3d 50,
52 (1st Cir. 2004) (emphasis added). The government rightly
concedes that Davis preserved his contention that the government
breached the plea agreement by presenting statements from C.G. and
A.O. at the sentencing hearing. Davis clearly raised this issue
before the district court.
We agree with the government, however, that Davis did
not preserve the other aspects of his breach claim. He failed to
object at the sentencing hearing to any of the government's pre-
hearing conduct, that is, the government's submission of certain
information to Probation, its failure to object to the PSR, and
its purported failure to focus on the parties' agreed-upon
guideline calculations in its sentencing memorandum. Davis's
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failure to properly raise these issues with the court at sentencing
engenders plain error review. See United States v. Saxena, 229
F.3d 1, 5 (1st Cir. 2000) ("When a defendant has knowledge of
conduct ostensibly amounting to a breach of a plea agreement, yet
does not bring that breach to the attention of the sentencing
court, we review only for plain error.").
Although Davis raised concerns about a potential breach
of the plea agreement in his sentencing memorandum, he did not
raise these concerns at the subsequent hearing. The point of a
timely objection is to bring a "live" issue to the district court's
attention at a time when the court can effectively address any
error. See Gonczy, 357 F.3d at 52; see generally Lee v. Kemna,
534 U.S. 362, 378 (2002) ("[A]n objection which is ample and timely
to bring the alleged federal error to the attention of the trial
court and enable it to take appropriate corrective action is
. . . sufficient to preserve the claim for review." (emphasis
added) (quoting Osborne v. Ohio, 495 U.S. 103, 125 (1990)).
Davis's statements in his sentencing memorandum did not accomplish
such notice. Rather, Davis paired his expression of conditional
concern with an expressed assumption that the government would
ultimately hew to the plea agreement when it mattered. In the
absence of any objection by Davis at the sentencing hearing, the
district court could reasonably have concluded that his concerns
had been alleviated. This is precisely the scenario in which we
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apply plain error review, i.e., where the complaining party does
not object at the sentencing hearing to an asserted deviation from
the plea agreement. See Puckett v. United States, 556 U.S. 129,
140 (2009); United States v. Oppenheimer-Torres, 806 F.3d 1, 4
(1st Cir. 2015). Accordingly, we review for plain error Davis's
contention that the government breached the plea agreement through
its pre-hearing conduct.5
We also apply plain error review to Davis's contention
that the government breached the plea agreement by only
"begrudgingly" advocating for the plea agreement's guideline
calculation at the sentencing hearing. Davis made no objection to
the government's sentencing arguments before the district court.
3. De Novo Review of the Preserved Claim
Davis contends that the government breached the plea
agreement by "presenting" the statements by C.G. and A.O. -- a
victim who was not included in any charged count and a victim in
a dismissed count, respectively -- after it agreed that there are
5
Davis's reliance on Gonczy is inapposite. In Gonczy, the
defendant clearly raised an objection at the sentencing hearing to
specific actions by the government purportedly effecting a breach
of the plea agreement. See 357 F.3d at 52 ("The government's
argument [for plain error review] fails not only because Gonczy's
counsel did object, but because the record shows that the district
court was aware of both the objection and the underlying reasons."
(emphasis added)). We reject Davis's suggestion that he preserved
his objection to the government's pre-hearing conduct by objecting
to different conduct at the hearing.
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only three victims for purposes of count grouping, A.Z., T.B., and
C.D.
We have recognized a tension between the general
principle that the government has a duty to provide to the court
reliable information relevant to sentencing and the fact that
"certain factual 'omission[s], helpful to the defendant,' may be
'an implicit part of the bargain' in a plea agreement." United
States v. Miranda-Martinez, 790 F.3d 270, 274 (1st Cir. 2015)
(alteration in original) (quoting United States v. Yeje-Cabrera,
430 F.3d 1, 28 (1st Cir. 2005)); see 18 U.S.C. § 3661 ("No
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence."); U.S.S.G.
§ 1B1.4 (same); Almonte-Nuñez, 771 F.3d at 90 ("We repeatedly have
emphasized that prosecutors have a . . . solemn obligation to
provide relevant information to the sentencing court and that a
plea agreement may not abridge that obligation."); Saxena, 229
F.3d at 6 ("In a nutshell, the government has an unswerving duty
to bring all facts relevant to sentencing to the judge's
attention.").
However, that tension is not present in this case. We
disagree with Davis's contention that the count grouping language
in the plea agreement constituted a promise by the government not
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to rely on dismissed or uncharged conduct for any other purpose.
"[I]nterpret[ing] [the] plea agreement as a whole and striv[ing]
to give effect to all of its terms," Almonte-Nuñez, 771 F.3d at
89, the agreement expressly "does not limit the information that
the prosecutor can convey." Miranda-Martinez, 790 F.3d at 275.
To the contrary, the agreement unambiguously reserves the
government's right "to provide the Court and the U.S. Probation
Office with accurate and complete information regarding this
case." This broad reservation is not nullified by the specific
language earlier in the plea agreement concerning the parties'
agreement that "there are a total of three groups" for purposes of
count grouping. C.G. and A.O.'s statements were unmistakably
relevant to the district court's consideration of Davis's
background, character, and conduct for imposing an appropriate
sentence, see 18 U.S.C. § 3661, and Davis does not suggest that
the statements lacked "sufficient indicia of reliability to
support [their] probable accuracy," U.S.S.G. § 6A1.3(a).
The government's actions did not deny Davis the benefit
of the plea agreement. As he acknowledges, his benefit of the
bargain was the government's agreement to drop certain charges,
not pursue other charges, and advocate for a sentence of no more
than 240 months. See Appellant's Br. at 18 (stating that the plea
agreement "hinged on the court's acceptance of the disposition
contained in . . . the agreement, i.e., a sentence of incarceration
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between 180 and 240 months" (emphasis added)). That is what Davis
bargained for, and that is what he got. The government dropped
certain charges, declined to pursue other charges, and repeatedly
argued for a 240-month term of imprisonment, a sentence consistent
with the agreed-upon guideline calculation using three victims.
The government did not violate the letter of the plea agreement by
presenting the relevant statements of C.G. and A.O.
Nor did the presentation of the statements effect an
"end-run" around the promises in the plea agreement. See United
States v. Cruz-Vázquez, 841 F.3d 546, 548 (1st Cir. 2016) ("We
prohibit not only explicit repudiation of the government's
assurances but also end-runs around those assurances."). Rather,
the presentation of C.G. and A.O.'s statements was consistent with
the government's agreed-to ability to recommend a 240-month
sentence. There is a significant discrepancy -- 60 months --
between the top and bottom of the sentencing range that the parties
agreed would be appropriate. The government could support its
"severe" sentencing recommendation and demonstrate that Davis's
recommendation was too lenient by presenting statements of other
women whom Davis had victimized. See, e.g., Almonte-Nuñez, 771
F.3d at 91 ("The [plea] [a]greement allowed the prosecutor to seek
the upper end of the [guideline sentencing range] contemplated by
the [a]greement, and the [prosecutor] was within fair territory in
emphasizing facts that made a sentence at the low end of that GSR
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inappropriate."); see also Irizarry-Rosario, 903 F.3d at 155;
United States v. Ubiles-Rosario, 867 F.3d 277, 287 (1st Cir. 2017).
We therefore conclude that the government did not breach the plea
agreement by presenting C.G. and A.O.'s statements at the
sentencing hearing.6
4. Plain Error Review of the Unpreserved Claims
To establish plain error, an appellant must show "(1)
that an error occurred (2) which was clear or obvious and which
not only (3) affected [his] substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." Almonte-Nuñez, 771 F.3d at 89 (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). We
conclude that Davis has failed to meet this daunting standard.
To recap, Davis claims that the government breached the
plea agreement by (1) including facts pertaining to A.O., N.S.,
6 Davis's reliance on United States v. Boatner, 966 F.2d 1575(11th Cir. 1992), is misplaced. In Boatner, the parties
specifically stipulated in the plea agreement that "two ounces of
cocaine would be the only [drug] quantity considered for sentencing
purposes." 966 F.2d at 1577. The government then submitted
information to Probation demonstrating that the defendant had been
involved with three kilograms of cocaine. Id. The Eleventh
Circuit determined that the government had breached the plea
agreement based on an explicit provision restricting the evidence
on drug quantity. Here, unlike in Boatner, the government reserved
the right to present relevant information about Davis's conduct.
The factual limitation in this plea agreement -- that there are
three victims -- also was stated only in reference to count
grouping pursuant to U.S.S.G. § 3D1.4.
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C.G., and J.A. (once again, victims in to-be-dismissed counts and
victims who were never included in charged counts) in the statement
of offense conduct it sent to Probation; (2) not objecting to the
PSR's guideline calculations; (3) not addressing the sentencing
guidelines in its sentencing memorandum and instead emphasizing
the number of women Davis had victimized; and (4) "begrudgingly"
advocating for the guideline calculation in the plea agreement at
the sentencing hearing.
We cannot conclude that the government's provision of
certain information to Probation and its failure to object to the
PSR's use of that information constituted a clear or obvious breach
of the plea agreement. As explained above, the plea agreement
provided Davis with multiple benefits, but the government
explicitly reserved the right to present relevant sentencing
information -- there was no promise that the government would
"sugarcoat the facts" concerning his background, character, and
conduct. See id. at 91.
Nor can we conclude that the government "clearly or
obviously" breached the plea agreement with its sentencing
memorandum or argument. See Puckett, 556 U.S. at 143. To support
his claim of error, Davis relies on cases that are readily
distinguishable. In Gonczy, we determined that the government had
breached the plea agreement where the prosecutor "pa[id] lip
service" to the agreed-upon recommended sentence but otherwise
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argued for a higher sentence. 357 F.3d at 54. In this case, the
government repeatedly recommended -- in its sentencing memorandum
and at the sentencing hearing -- the "severe" 240 month sentence
it was entitled to recommend under the terms of the plea agreement
and never argued for a different sentence. Cf. United States v.
Canada, 960 F.2d 263, 269 (1st Cir. 1992) (finding a breach where
the prosecutor "failed affirmatively to recommend 36 months, as
promised, and . . . went on to emphasize [the defendant]'s
supervisory role in the offense and then to urge the judge to
impose a 'lengthy period of incarceration' and to send 'a very
strong message'").
Further, the government's actions and advocacy were not
impermissibly equivocal, apologetic, or begrudging. See United
States v. Velez Carrero, 77 F.3d 11, 11-12 (1st Cir. 1996); Canada,
960 F.2d at 269. We acknowledge that the government's initial
statement in defense of the guideline calculation in the plea
agreement -- "[t]here were some representations in the plea
agreement . . . based on what [the government] knew at the time"
-- could be seen as less than full-throated. However, the
government directly followed by stating that the representations
in the plea agreement "are still true." More fundamentally, the
government's "overall conduct" -- its ultimate support of the plea
agreement's guideline calculations and the recommended sentence -
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- was, at the very least, "reasonably consistent" with its promises
in the plea agreement. Gonczy, 357 F.3d at 54.
B. Inadequate Notice Regarding Victim Statements
Davis also contends that he was not provided with
adequate notice concerning the victim statements presented at the
sentencing hearing and was therefore deprived of his "due process
right to respond to and challenge the factual information [that
the statements] contained." Davis cannot dispute that he received
notice that victim statements might be presented at the sentencing
hearing. Indeed, at the change of plea hearing, defense counsel
acknowledged that such statements would be presented. We thus
focus on Davis's claim that he was provided inadequate notice
regarding what he contends are new facts introduced through the
victim statements at sentencing.7
Davis concedes that the appellate waiver bars this
unpreserved claim unless enforcing the waiver "would work a
miscarriage of justice." United States v. Teeter, 257 F.3d 14, 25
(1st Cir. 2001).8 In Teeter, we explained that the miscarriage of
7To the extent Davis suggests that he was unfairly harmed by
the statements' length or inflammatory nature, he has failed to
adequately develop this argument. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
8The relationship between the "miscarriage of justice"
inquiry under Teeter and plain error review is somewhat murky.
See United States v. Cabrera-Rivera, 893 F.3d 14, 30 & n.9 (1st
Cir. 2018). However, despite recognizing that miscarriage of
justice and plain error review may be "functional equivalents," we
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justice exception to enforcement of an otherwise valid appellate
waiver should be "applied sparingly and without undue generosity"
after considering factors such as "the clarity of the error, its
gravity, its character[,] . . . the impact of the error on the
defendant, the impact of correcting the error on the government,
and the extent to which the defendant acquiesced in the result."
Id. at 26.
We enforce the appellate waiver in this case for two
reasons. First, it is not clear there was any error. Even
assuming, without deciding, that the victim statements introduced
new factual information, there is no indication that the
information was "materially relied on" by the district court in
determining the sentence. See United States v. Millán-Isaac, 749
F.3d 57, 70 (1st Cir. 2014). The court's focus was on Davis's
violent behavior, which was well-documented in the sentencing
record outside the victim statements. Second, as in United States
v. Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989), defense counsel
"never moved for a continuance to prepare for cross-examination or
to muster additional evidence." Id. at 47; see also id. ("It is
have followed a two-step approach of first determining whether
enforcing an appellate waiver would constitute a miscarriage of
justice and then reviewing the claim of error on the merits under
the applicable standard of review if we have determined that the
appellate waiver should be disregarded. Id. Because, as we
explain, there is no miscarriage of justice in enforcing the
appellate waiver as to Davis's notice claim, we do not consider
whether his claim survives plain error review.
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. . . incumbent upon a party [claiming unfair surprise] to ask
explicitly that the court grant the time needed to regroup, or
waive the point.").9 Accordingly, the appellate waiver in the plea
agreement bars his appeal on the notice issue.
III.
For the foregoing reasons, we conclude that Davis's
claim that the government breached the plea agreement fails, and
that his claim that he was provided with inadequate notice
regarding victim statements presented at the sentencing hearing is
barred by the appellate waiver in the plea agreement. We therefore
affirm the district court's sentencing judgment.
So ordered.
9
Defense counsel did not lack "an adequate opportunity to
register an effective objection." See United States v.
Toribio-Lugo, 376 F.3d 33, 40 (1st Cir. 2004). To provide one
example of a missed opportunity, counsel could have raised the
notice issue or asked for a continuance after the court and defense
counsel took time to read A.O.'s written statement.
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