United States v. Everett Jerome Tripodis , 362 F. App'x 967 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 07-12525 & 08-12919 JANUARY 26, 2010
________________________ JOHN LEY
ACTING CLERK
D. C. Docket No. 05-00381-CR-01-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERETT JEROME TRIPODIS,
a.k.a. Edward Bourley,
a.k.a. Melvin Dudley,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(January 26, 2010)
Before BLACK, WILSON and COX, Circuit Judges.
PER CURIAM:
Everett Jerome Tripodis and others schemed to duplicate out-of-state car
titles that they then used to obtain Georgia car titles in an effort to conceal stolen
vehicles, the Vehicle Identification Number (“VIN”) of which they had altered.
After the Government indicted him, Tripodis pled guilty to tampering with a VIN
in violation of 18 U.S.C. § 511; mail fraud in violation of 18 U.S.C. § 1341; and
conspiracy to transport a stolen motor vehicle and tamper with a VIN, in violation
of 18 U.S.C. §§ 511 and 2312. His counseled guilty plea was entered pursuant to a
plea agreement with the Government. On appeal to this Court, Tripodis argues that
the Government breached the plea agreement by failing to fulfill its promise to
recommend a sentence at the low end of the United States Sentencing Guidelines
(“U.S.S.G.”) range. He is represented by counsel on this appeal. Separately,
Tripodis appeals, pro se, the district court’s denial of his “Motion To Withhold
Entry Of Judgment” and his “Motion Requesting Remedy for Breach of the
Government’s Plea Agreement.” We affirm as to both appeals, which we have
consolidated for appellate review.
BACKGROUND
On November 29, 2006, Tripodis entered into a written plea agreement in
which the Government agreed that it would “move pursuant to U.S.S.G. § 3B1.1
for a sentence enhancement of three levels based on the defendant’s role in the
offense.” Doc. 97–2 at 5. The agreement further provides that the “defendant
reserves the right to argue that his offense level should be enhanced by less than
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three levels.” Id. In addition, the Government agreed to recommend that Tripodis
receive a sentence at the low end of the Guidelines range. The plea agreement also
states that “[t]he Government reserves the right to inform the [district] [c]ourt . . .
of all facts and circumstances regarding the defendant in this case, and to respond
to any questions . . . the Government also reserves the right to make
recommendations regarding application of the Sentencing Guidelines.” Id.
Further, the plea agreement emphasized that the recommendations of the
Government are “not binding on the [district][c]ourt.” Id. at 6.
The applicable Sentencing Guidelines range was 46–57 months, but the
district court imposed a 60-month sentence on all counts to run concurrently. The
district court noted that the 60-month sentence was above the Government’s
recommendation, but emphasized that the PSI warranted a higher sentence than
recommended. The district court found it “worrisome” that Tripodis became
involved in an organized scheme to commit car theft shortly after his release on
prior automobile and theft charges, for which he served a 41-month sentence.
On May 31, 2007, Tripodis’s lawyer filed a notice of appeal, but Tripodis
himself filed several pro se motions challenging his sentence including his
“Motion To Withhold Entry Of Judgment” and “Motion For Requesting Remedy
For Breach of the Government’s Plea Agreement.” In these motions, his
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complaints mirror those raised in his counseled appeal in his efforts to obtain a
modification of his sentence. On May 12, 2008, the district court dismissed the
pro se motions, for lack of jurisdiction to consider them, because they failed to
meet the requirement of Federal Rule of Criminal Procedure 35(a). Tripodis now
appeals the district court’s jurisdictional conclusion and asks us to order the district
court to reconsider his post-conviction motions. Of course, we also have the
separate counseled-appeal alleging that the Government breached the plea
agreement.
DISCUSSION
We address the jurisdictional question first. Within seven days of
sentencing, the district court “may correct a sentence that resulted from
arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a).1 Clear error is
“acknowledged and obvious errors in sentencing.” United States v. Lett, 483 F.3d
782, 787 (11th Cir. 2007). We review de novo the jurisdictional question about
whether the district court had authority to resentence a defendant under Fed. R.
Crim. P. 35(a). United States v. Sjeklocha, 114 F.3d 1085, 1087 (11th Cir. 1997)
(explaining that the question of whether the district court had the authority to
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Former Rule 35(c), became the new Rule 35(a). Rule 35(a) provides that “[w]ithin 7
days after sentencing, the court may correct a sentence that resulted from arithmetical, technical,
or other clear error.” Fed.R.Crim.P. 35(a).
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resentence the defendant under Fed. R. Crim. P. 35(a) is a “legal question subject
to plenary review”). The Rule 35 Advisory Committee notes add that the Rule “is
not intended to afford the Court the opportunity to reconsider the application or
interpretation of the Sentencing Guidelines or for the court simply to change its
mind about the appropriateness of the sentence.” The scope of a district court’s
authority to rule on the merits of a post-judgment motion for reconsideration of a
plea agreement is unclear. We have said that the “district court has ‘plenary power
. . . to modify [its] judgment for error of fact or law, or even to revoke it
altogether.’” United States v. LaSpesa, 956 F.2d 1027, 1034 (11th Cir. 1992). But
we have also concluded that “[o]utside of Rule 35[(a)], there exists no inherent
authority for a district court to modify a sentence.” United States v. Diaz-Clark,
292 F.3d 1310, 1319 (11th Cir. 2002) (quotation and citation omitted). However,
we need not decide whether the district court retained jurisdiction to consider
Tripodis’s post-plea motions alleging breach of the plea agreement because we
find on the merits of Tripodis’s counseled appeals that the Government did not
breach the plea agreement.
It is well-settled that the “sentencing court is not bound by the parties’
agreements or recommendations.” United States v. Johnson, 132 F.3d 628, 630
(11th Cir. 1998) (per curiam). “When a plea rests in any significant degree on a
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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.” Id. (internal citations
and quotations omitted). Therefore, “[t]o determine whether the Government
breached the plea agreement, we must first determine the scope of the
Government’s promises.” Raulerson v. United States, 901 F.2d 1009, 1011 (11th
Cir. 1990). Additionally, “[t]he court must decide whether the Government’s
actions are inconsistent with what the defendant reasonably understood when he
entered his guilty plea.” In re Arnett, 804 F.2d 1200, 1202–03 (11th Cir. 1986)
(citation omitted); see also United States v. Rewis, 969 F.2d 985, 988 (11th Cir.
1992) (explaining that whether “the [G]overnment violated the [plea] agreement is
judged according to the defendant’s reasonable understanding at the time he
entered the plea” agreement). In United States v. Taylor, 77 F.3d 368, 370 (11th
Cir. 1996), we explained that the Government breaches a plea agreement when it
“unequivocally promise[s]” that it would make a particular sentencing
recommendation, and then advocates a position requiring a greater sentence. In
such cases, the Government’s actions are considered “flatly inconsistent with the
recommendation of a lesser sentence.” Id. In this case, the Government fulfilled
its promise to recommend a sentence at the low end of the applicable Guidelines
range. Tr. 33–34.
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Tripodis admits that the Government recommended a minimum 46-month
sentence in compliance with their plea agreement. At the sentencing hearing,
however, Tripodis objected to the Government’s statements about his “character”
and “history.” Tr. 34. Tripodis argues that the introduction of these facts into the
sentencing process served as a “backdoor” through which the Government
presented reasons for imposing a higher sentence. Specifically, Tripodis asserts
that the Government violated the plea agreement by asking the district court to
look at Tripodis’s “extensive record in terms of his involvement in car theft,” and
commenting that “it’s not every day that we have a defendant that comes in to
federal court and actually has two federal convictions, numerous arrests in
connection with auto theft, and as a matter of fact, I believe that there is still a
pending auto theft case with the defendant with Fulton County as well.” Tr. 34.
Although Tripodis’s contention has some merit, after review, we are unable
to conclude that the Government departed from the material promises contained in
the agreement itself. Indeed, the Government fulfilled its promise to recommend
that Tripodis receive a sentence at the lowest end of the Guideline range however,
it also “reserve[d] the right to make recommendations regarding application of the
Sentencing Guidelines.” Doc. 97-2 at 4–5. The record shows that the Government
did not betray the terms of the agreement when it directed “the court’s attention to
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18 U.S.C. § 3553 and the applicable factors underneath that section. In particular,
basically the history and . . . characteristics of the defendant.” Tr. 34; see 18
U.S.C. § 3553(a)(1).2 The Government also recommended that the district court
consider the need to “protect the public from his further crimes,” and “to afford
adequate deterrence.” Tr. 36; 18 U.S.C. § 3553(a)(2)(C); 18 U.S.C. §
3553(a)(2)(B). Although there appears to be some inconsistency between the
Government’s 46–month sentence recommendation and statements about the
application of the Guidelines, the recommendations are not mutually exclusive.
Because the agreement illustrates that the Government reserved both the right to
recommend a sentence and to advance an argument about the application of the
Guidelines range, we find the Government did not act in a manner beyond the
scope of the promises memorialized in the plea agreement.
Additionally, Tripodis argues that the phrase, “this case” functions as
language which limits the Government’s discussion to facts pertaining to the
instant offenses, and the parties did not intend for the Government to discuss facts
about earlier cases involving his prior criminal acts. The Government responds
2
In addition to the applicable Guidelines range, Section 3553(a) provides, inter alia, that
district courts must consider: (1) the nature and circumstances of the offense; (2) the history and
characteristics of the defendant; (3) the need for the sentence imposed to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for the offense; (4)
the need for adequate deterrence to criminal conduct; (5) protection of the public from further
crimes of the defendant; and (6) the need to avoid unwarranted sentencing disparities, prior to
imposing a sentence. See 18 U.S.C. § 3553(a).
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that such language encompasses the Government’s right to inform the district court
of “all facts and circumstances” such as past criminal acts committed by Tripodis.
When “interpreting a plea agreement, we do not accept a hyper-technical reading
of the written agreement or a rigidly literal approach in the construction of the
language.” United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004)
(internal quotations and citations omitted).
A defendant may bargain for the plea agreement to limit the type of facts the
Government may offer to the district court. See United States v. Boatner, 966 F.2d
1575, 1578 (11th Cir. 1992). In the past we have said that the “Government can
enter into a binding agreement with a defendant to restrict the facts upon which the
substantive offense is based.” Id. (quotation and citation omitted). Furthermore,
“[t]he solemnization of a plea agreement does not preclude the Government from
disclosing pertinent information to the sentencing court.” Boatner, 966 F.2d at
1578 (citation omitted).
In this case however, the plea agreement lacks any indication that the
Government agreed not to discuss Tripodis’s past crimes. Rather, the language of
the plea agreement memorializes Tripodis’s express stipulation of the factual
background information which recounts his conviction of other “federal
automobile theft charges,” and that he violated the terms of his supervised release
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for that offense. Doc. 97–2 at 4. Tripodis has not pointed to any language in the
plea agreement which restricts the Government from offering such facts to the
district court. The unambiguous language of the plea agreement permits the
Government to report background information about Tripodis’s past criminal
activity to the district court. The Government therefore, did not violate the plea
agreement because it expressly reserved the right to inform the district court of
circumstances and all facts about both “the defendant” and “this case.” Id. at 5.
The record also indicates that the district court found Tripodis’s background
information pertinent to fashioning a sentence running consecutively to the prior
19-months’ imprisonment for the “supervised release revocation in 1:01–CR–109.”
Tr. 40; see Doc. 97–2 at 4–5. Therefore, the Government’s presentation of facts
regarding Tripodis’s prior criminal activities was relevant to the sentencing
process. Accordingly, Tripodis has failed to show that the Government’s
sentencing argument breached the plea agreement. Therefore, we affirm as to both
appeals.
AFFIRMED.
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