United States v. Johnson , 132 F.3d 628 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________
No. 95-9377
_____________________________________
D. C. Docket No. CR-495-094-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GORDON JOHNSON, a.k.a. Gordy,
Defendant-Appellant.
_____________________________________
No. 95-9499
_____________________________________
D. C. Docket No. 4:95-CR-94
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONN BURNS,
Defendant-Appellant.
_____________________________________
No. 95-9509
_____________________________________
D. C. Docket No. 4:95-cr-94
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD PROCTOR, a.k.a. Ricky,
Defendant-Appellant.
______________________________________
Appeals from the United States District Court
for the Southern District of Georgia
_______________________________________
(January 6, 1998)
Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*, Senior
District Judge.
________________
*Honorable Stephen N. Limbaugh, Senior U.S. District Judge for the Eastern
District of Missouri, sitting by designation.
PER CURIAM:
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Gordon Johnson, Donn Burns, and Richard
Proctor challenge various trial rulings and
sentencing determinations. We conclude that
two reversible errors occurred as to Proctor’s
sentence: (1) Proctor’s plea agreement was
breached by the government; and (2) Proctor
was improperly denied a third point of reduction
for acceptance of responsibility. No other
reversible errors exist. So, we vacate Proctor's
sentence, remand for resentencing with
instructions; and affirm otherwise.
Discussion1
1
The three defendants raise many arguments
challenging their sentences or convictions.
Proctor argues: (1) breach of plea agreement;
(2) error for not providing a full three-point
reduction in his sentence for acceptance of
responsibility; and (3) error for enhancing his
sentence due to co-conspirator’s weapons
3
In 1995, Richard Proctor (Proctor) was
charged, along with seventeen others, in a
multi-count indictment. Proctor later entered
into a plea agreement with the government. The
plea agreement stated: "The government
represents that an amount of marijuana not
greater than 100 pounds should be attributed to
this defendant." The agreement also provided
that the government would "make no
recommendation as to sentence."
Despite the agreement's plain language,
however, the later PSI -- prepared independently
possession. Burns argues: (1) error for
enhancing his sentence due to obstruction of
justice and co-conspirator’s weapons
possession; (2) error because district court
failed to articulate reasons for his particular
sentence; and (3) error because district court
considered hearsay in sentencing him.
Johnson argues that there was insufficient
evidence to support his conviction.
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by the court’s probation officer -- recommended
that Proctor be held accountable for 1400
pounds of marijuana. When the sentencing
court inquired into the difference between the
amount in the plea agreement and the amount in
the PSI, the Assistant United States Attorney
(AUSA) explained that another co-conspirator,
Mike Miller (Miller), was not interviewed until the
day after the plea agreement was made and that
Miller's testimony had changed the amount
involved -- in the words of the AUSA during the
sentencing hearing -- "substantially and
drastically." The AUSA also said other things
that further undermined the agreed-upon
provision in the plea agreement. Proctor
contends that this conduct -- in effect, arguing
in favor of the probation officer's finding in the
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PSI that Proctor should be held accountable for
1400 pounds of marijuana -- was a breach of the
plea agreement.
"[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, 92 S.
Ct. 495, 499 (1971). It is not the court's role to
determine if the government made a wise choice
in entering into the plea agreement. United
States v. Rewis, 969 F.2d 985, 988 (11th Cir.
1992). Instead, the court is only responsible for
ensuring the terms of a plea agreement are
followed. Id.Here, the government does not dispute that
the quantity limitation induced Proctor to plead
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guilty. The government advances two
arguments in response to the claim of breach:
(1) stipulations or plea agreements between
parties are not binding on the sentencing court
under the Sentencing Guidelines; and (2) the
AUSA was not bolstering the contradictory PSI
report, but instead was simply answering the
judge’s questions, as the AUSA was required to
do as an officer of the court.
That the sentencing court is not bound by
the parties' agreements or recommendations is
well settled. But, as Proctor contends, the
AUSA, not the court, violated the plea
agreement; the sentencing judge’s acts are not
important to this issue. See Santobello, 92 S.
Ct. at 499 (remanding case for violation of plea
agreement by prosecutor even though Court
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had no reason to doubt sentencing judge's
statement that prosecutor's recommendation
did not influence sentence). As we wrote in
United States v. Tobon-Hernandez, 845 F.2d 277,
280 (11th Cir. 1988):
[The cases the government cites] are
inapposite, however, because they deal with
the sentencing court's role. In this case, we
do not address the district court's exercise
of discretion in imposing a sentence.
Rather, we focus on the government's
violation of its plea agreement.
(emphasis added). Thus, the government's first
argument is unavailing.
The government's other argument -- that it
was merely answering the district court's
questions, not bolstering the contradictory PSI
-- is also without merit. The pertinent AUSA did
more than just answer the sentencing court's
questions. Briefly stated, the court’s questions
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just invited the AUSA to respond to the PSI’s
conclusion that 1400 pounds of marijuana was,
in fact, involved -- and not 100 pounds as the
government had stipulated with Proctor. This
case is not one in which a prosecutor is subject
to much pointed probing by the district judge,
ultimately prying information from the AUSA
contrary to the plea agreement. In this instance,
the AUSA’s response to the PSI’s variance from
the government stipulation was for the AUSA to
choose to become, in effect, an advocate that
the sentencing court should accept the PSI’s
numbers and not the 100 pounds to which the
government had stipulated.
Miller was the person whose testimony led
the probation officer to conclude that a large
amount of marijuana was involved in this case:
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many, many more pounds than 100 pounds.
Faced with the PSI, the defense counsel argued
that Miller was unworthy of belief; so, the 100-
pound stipulation (or some weight close to it)
ought to be accepted by the sentencing court.
But the AUSA vouched for Miller’s credibility:
“But I, too, found Mr. Miller to be credible and
believable.”; “There’s no way that Mr. Miller
could have made that up.”; “There’s little reason
to believe that Mr. Miller has dreamed up these
poundage quantities pertaining to Mr. Proctor
out of whole cloth because they are
substantially corroborated by the testimony of
other individuals that Mr. Rasper [the probation
officer] has interviewed.” There were other
examples.
10
We stress again that these comments --
each of which undercut the stipulation on the
weight of the marijuana -- were not demanded
from an AUSA by a zealous judge. As we read
the transcript, the AUSA abandoned the
agreement he made with Proctor and became an
enthusiastic advocate for a “fact” at odds with
the “fact” to which he had stipulated. Proctor’s
plea agreement was breached by the
prosecutors. See United States v. Boatner, 966
F.2d 1575, 1579 (11th Cir. 1992) (finding
government breached plea agreement by
bolstering PSI containing recommendation that
defendant be held accountable for greater
quantity of drugs than stipulated to in
agreement).
11
Having established that the government
breached the plea agreement, we must next
consider how to rectify the situation. Two
remedies are available for the government's
breach of a plea agreement: specific
performance of the agreement or withdrawal of
the guilty plea. Santobello, 92 S. Ct. at 499.
"While the choice of a remedy is within the
discretion of the court rather than the
defendant, [however,] the remedy of withdrawal
of the guilty plea has not been favored in this
circuit." United States v. Jefferies, 908 F.2d
1520, 1527 (11th Cir. 1990). Specific performance
is particularly appropriate where, as here, no
question exists that the plea was knowingly and
voluntarily entered. Tobon-Hernandez, 845 F.2d
at 281 ("Tobon-Hernandez knowingly and
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voluntarily entered his guilty plea. To allow him
to withdraw that plea and proceed to trial would
be unwarranted. Rather, his voluntary plea
agreement should bind him just as it binds the
government.").
In this case, we conclude that Proctor's
sentence should be vacated and that he should
be resentenced by a different judge. We,
however, do not require that the PSI be altered
because it appears that the PSI was based on
information obtained independently of the
prosecution (the party bound by the plea
agreement). On remand, the sentencing court
can make its own determinations as to the most
appropriate sentence -- being bound by neither
the plea agreement nor the PSI.
13
Proctor also contends that the district court
misapplied the sentencing guidelines by
granting only a two-level reduction, instead of
three, after it determined that Proctor accepted
responsibility under U.S.S.G. § 3E1.1. “Once
the district court has determined the defendant
has accepted responsibility, . . . the court’s
application of the guidelines is reviewed de
novo.” United States v. McPhee, 108 F.3d 287,
289 (11th Cir. 1997). Here, the district court did,
in fact, decide that Proctor was entitled to a
reduction in his offense level due to his
acceptance of responsibility. But, the district
court did not grant the full three-level reduction
-- probably because of the conflicting evidence
concerning the quantity of drugs attributable to
Proctor. The district court, however, did not
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have the benefit of our recent decision in
McPhee, which held that “once a defendant is
awarded a two-level reduction for acceptance of
responsibility, whether or not to grant the one-
level reduction is a matter of determining only
whether the defendant timely provided
information and notified authorities of his
intention to enter a plea of guilty.” Id. at 289-90.
In this case, “the district court denied the
additional point on improper grounds”;
resentencing is necessary on this issue as well.
Id. at 290. Section 3E1.1 will require that the
sentencing court to grant an additional one-
point reduction if it determines that Proctor
accepted responsibility and did so in a timely
way.
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VACATED and REMANDED in part;
AFFIRMED in part.
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