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

United States Court of Appeals,
Eleventh Circuit.
Nos. 95-9377, 95-9499 and 95-9509.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gordon JOHNSON, a.k.a. Gordy, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Donn BURNS, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Richard PROCTOR, a.k.a. Ricky, Defendant-Appellant.
Jan. 6, 1998.
Appeals from the United States District Court for the Southern District of Georgia. (Nos. CR-495-
094-2, 4:95-CR-94), B. Avant Edenfield, Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*, Senior District Judge.
PER CURIAM:
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.
*
Honorable Stephen N. Limbaugh, Senior U.S. District Judge for the Eastern District of
Missouri, sitting by designation.
Discussion1
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 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 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,
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 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.
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, 499, 30 L.Ed.2d 427 (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
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, 404 U.S. at 262, 92 S.Ct. at
499 (remanding case for violation of plea agreement by prosecutor even though Court 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 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: 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.
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).
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, 404
U.S. at 262, 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 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.
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 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.
VACATED and REMANDED in part; AFFIRMED in part.