United States v. Bryan Adrain Copeland , 520 F. App'x 822 ( 2013 )

Case: 12-13381 Date Filed: 05/29/2013 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13381
Non-Argument Calendar
________________________
D.C. Docket No. 3:11-cr-00281-RBD-JBT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN ADRAIN COPELAND,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 29, 2013)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Case: 12-13381 Date Filed: 05/29/2013 Page: 2 of 12
After a guilty plea, Bryan Copeland appeals his total 264-month sentence for
wire fraud, aggravated identity theft, and making false claims against the United
States. Copeland argues, inter alia, that the government breached the plea
agreement by failing to recommend a three-level guideline reduction under
U.S.S.G. § 3E1.1 for acceptance of responsibility. After review, we vacate the
district court’s judgment and remand for resentencing.
I. BACKGROUND
A. The Indictment
In 2011, a federal grand jury issued a 38-count indictment against Copeland,
charging him with 11 counts of mail fraud, in violation of 18 U.S.C. § 1341; 16
counts of wire fraud, in violation of 18 U.S.C. § 1343; 9 counts of aggravated
identity theft, in violation of 18 U.S.C. § 1028A; and 2 counts of making false
claims against the United States, in violation of 18 U.S.C. § 287. The indictment
alleged that Copeland, with the help of other co-conspirators, engaged in a
prolonged tax fraud scheme by using stolen identities to file fraudulent tax returns
and obtain refunds.
B. The Plea Agreement
In 2012, Copeland entered into a written plea agreement with the
government, in which he agreed to plead guilty to one count of wire fraud (Count
27), one count of aggravated identity theft (Count 36), and one count of making a
2
Case: 12-13381 Date Filed: 05/29/2013 Page: 3 of 12
false claim against the United States (Count 37). In exchange, the government
agreed to dismiss the remaining counts of the indictment.
It is undisputed that, before entering the plea agreement, the government was
aware of two pre-indictment incidents that were later used to enhance Copeland’s
sentence for obstruction of justice. Specifically, (1) in February 2010, after the
investigation into Copeland’s criminal activities commenced, Copeland attempted
to destroy evidence while fleeing from law enforcement officers, and, (2) in
September 2011, Copeland intimidated a potential witness by striking the witness
with his car.
Despite knowing of these incidents, the government agreed to recommend a
two- or three-level reduction for acceptance of responsibility, pursuant to U.S.S.G.
§ 3E1.1. Specifically, the plea agreement provided:
Acceptance of Responsibility – Three Levels
At the time of sentencing, and in the event that no adverse
information is received suggesting such a recommendation to be
unwarranted, the United States will recommend to the Court that the
defendant receive a two-level downward adjustment for acceptance of
responsibility, pursuant to USSG § 3E1.1(a). The defendant
understands that this recommendation or request is not binding on the
Court, and if not accepted by the Court, the defendant will not be
allowed to withdraw from the plea.
Further, at the time of sentencing . . . the United States agrees to
file a motion pursuant to USSG § 3E1.1(b) for a downward
adjustment of one additional level. The defendant understands that
the determination as to whether the defendant has qualified for a
downward adjustment of a third level for acceptance of responsibility
3
Case: 12-13381 Date Filed: 05/29/2013 Page: 4 of 12
rests solely with the [government], and the defendant agrees that the
defendant cannot and will not challenge that determination, whether
by appeal, collateral attack, or otherwise.
(Emphasis added).
The plea agreement also contained a separate “Substantial Assistance”
provision, pursuant to which Copeland agreed to “cooperate fully” with the
government’s investigation, and, in return, the government would “consider” filing
a motion for, inter alia, a downward departure under U.S.S.G. § 5K1.1.
In a paragraph entitled “Sentencing Information,” the government reserved
its right (1) to provide all relevant sentencing information to the district court and
the U.S. Probation Office, and (2) “to make any recommendations it deems
appropriate regarding the disposition of this case, subject to any limitations set
forth herein.”
C. Presentence Investigation Report
After the district court accepted Copeland’s guilty plea, a probation officer
compiled the Presentence Investigation Report (“PSI”), calculating Copeland’s
guideline range. The PSI calculated a total offense level of 42, which included,
inter alia, a 2-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1.
The PSI applied this enhancement because of the two above incidents that occurred
before Copeland was indicted.
4
Case: 12-13381 Date Filed: 05/29/2013 Page: 5 of 12
The PSI did not apply a § 3E1.1 reduction for acceptance of responsibility,
given the above two incidents and because Copeland “did not truthfully admit all
of his conduct and relevant conduct” and did not “voluntarily assist authorities
with the recovery of the fruits of the offense.”
Copeland’s total offense level of 42 and his criminal history category of I
yielded an initial guideline range of 360 months to life imprisonment. Because the
combined statutory maximum sentences for wire fraud (Count 27) and making
false claims (Count 37) totaled 25 years (300 months), the guideline range for
those offenses became 300 months, pursuant to U.S.S.G. § 5G1.2(b). See 18
U.S.C. §§ 287, 1343. 1
D. Objections to the PSI
Copeland objected to the PSI’s failure to recommend a reduction for
acceptance of responsibility under § 3E1.1, noting that the government had agreed
to recommend a two-level reduction in the plea agreement. Copeland also
objected, among other things, to the two-level enhancement for obstruction of
justice.
1
In calculating Copeland’s guideline range, the PSI grouped together Count 27 (wire-
fraud) and Count 37 (making false claims), pursuant to U.S.S.G. § 3D1.2(d). Copeland’s
conviction on Count 36 (aggravated identity theft) mandated a consecutive minimum sentence of
two years, or 24 months. See 18 U.S.C. § 1028A(a)(1). The guideline sentence for that offense
was 24 months, pursuant to U.S.S.G. § 2B1.6, and was calculated separately.
5
Case: 12-13381 Date Filed: 05/29/2013 Page: 6 of 12
The government did not object to the PSI or its failure to include the
acceptance-of-responsibility reduction. On the contrary, the government filed a
sentencing memorandum affirmatively arguing that (1) the obstruction-of-justice
enhancement should apply, given Copeland’s two pre-indictment incidents
mentioned in the PSI, and (2) the acceptance-of-responsibility reduction should not
apply.
The government acknowledged that, in the plea agreement, it had agreed to
recommend a § 3E1.1 reduction for acceptance of responsibility. It argued,
however, that this “recommendation was included in light of the fact that the plea
agreement also contain[ed] provisions which would provide for a downward
departure motion pursuant to Section 5K1.1 of the Sentencing Guidelines, should
the defendant provide substantial assistance.” In other words, the government
appeared to argue that its agreement to recommend an acceptance-of-responsibility
reduction was tied to whether it also filed a § 5K1.1 substantial-assistance motion.
The government further explained that, although an obstruction-of-justice
enhancement usually precludes an acceptance-of-responsibility reduction, both the
enhancement and the reduction may apply in “extraordinary cases.” Thus,
Copeland could have qualified for the § 3E1.1 reduction if he “provided full,
complete, and total cooperation which supported a Section 5K1.1 motion.”
According to the government, because no § 5K1.1 motion was forthcoming in this
6
Case: 12-13381 Date Filed: 05/29/2013 Page: 7 of 12
case, there were no extraordinary circumstances justifying a reduction for
acceptance of responsibility.
E. Sentencing Hearing
At the sentencing hearing, the government essentially reiterated the above
argument from its sentencing memorandum, stating that Copeland could have
qualified for an acceptance-of-responsibility reduction under § 3E1.1, even with
the enhancement for obstruction of justice, but, given Copeland’s lack of
cooperation with the government, the reduction was not warranted.
The district court overruled Copeland’s objection to the obstruction-of-
justice enhancement, finding that the government established obstruction by a
preponderance of the evidence. The district court then upheld the PSI’s denial of
the reduction for acceptance of responsibility. While noting that Copeland
expressed remorse for his crimes, the district court stated:
I don’t find a lot of acknowledgment of the scope of the fraud, the
complications of the fraud to the extent that other people were
involved in the criminal enterprise.
I don’t find any discussion about the disposition of the proceeds
of the fraud, which is particularly troublesome to the Court, and is
oftentimes I think a very good barometer of the acceptance of
responsibility; and I find all those things to be absent here.
The district court then adopted the PSI’s guideline calculations.
In sentencing Copeland, the district court varied downward from the
applicable guideline range of 300 months and imposed a total sentence of 240
7
Case: 12-13381 Date Filed: 05/29/2013 Page: 8 of 12
months’ imprisonment on Counts 27 and 37 (wire fraud and making false claims).
The district court explained that the downward variance was justified in light of the
potential sentencing disparities between Copeland and other defendants involved in
Copeland’s tax fraud scheme. The district court also imposed a statutorily
mandated 24-month consecutive sentence as to Count 36, for a total sentence of
264 months in prison and 3 years of supervised release.
II. DISCUSSION
A. Plea Agreements
“The government is bound by any material promises it makes to a defendant
as part of a plea agreement that induces the defendant to plead guilty.” United
States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008) (internal quotation marks
omitted). 2 We analyze the plea agreement according to the defendant’s reasonable
understanding on entering the plea. United States v. Rewis, 969 F.2d 985, 988
(11th Cir. 1992). If the government disputes the defendant’s understanding, we
use “objective standards” to determine the terms of the plea agreement. Id. An
ambiguous agreement “must be read against the government.” United States v.
Copeland, 381 F.3d 1101, 1105-06 (11th Cir. 2004) (internal quotation marks
omitted).
B. Copeland’s Plea Agreement about Acceptance of Responsibility
2
We review de novo whether the government has breached a plea agreement. United
States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004).
8
Case: 12-13381 Date Filed: 05/29/2013 Page: 9 of 12
In this case, the plea agreement stated that the government would
recommend a two-level reduction for acceptance of responsibility under § 3E1.1(a)
unless “adverse information is received suggesting such a recommendation to be
unwarranted.” At sentencing, the government presented no evidence of “adverse
information” received after the plea agreement was entered.
Rather, the government argued, essentially, that Copeland was not eligible
for a § 3E1.1 reduction because he failed to provide substantial assistance to the
government such as to qualify for a downward departure motion under U.S.S.G.
§ 5K1.1. Yet nothing in the plea agreement conditioned the recommendation for a
§ 3E1.1 reduction on Copeland’s substantial assistance to the government (as
defined in § 5K1.1), and nothing in § 3E1.1 itself requires a defendant to provide
substantial assistance to be eligible for a reduction. See U.S.S.G. § 3E1.1. 3
Accordingly, the government breached the plea agreement when it failed to
recommend a two-level reduction under § 3E1.1(a) and affirmatively
recommended denying such a reduction.
The government, however, did not breach the plea agreement by failing to
file a motion for an extra one-level reduction under § 3E1.1(b). The plea
3
On appeal, the government argues that Copeland’s lack of cooperation constituted the
“adverse information” that prevented him from qualifying for the acceptance-of-responsibility
reduction. We reject this argument. The plea agreement dealt with cooperation in separate
provisions, and nothing in the agreement conditioned the acceptance-of-responsibility
recommendation on such cooperation.
9
Case: 12-13381 Date Filed: 05/29/2013 Page: 10 of 12
agreement expressly stated that the determination as to whether Copeland qualified
for this additional one-level reduction “rests solely with the [government], and the
defendant agrees that the defendant cannot and will not challenge that
determination, whether by appeal, collateral attack, or otherwise.” Thus, Copeland
cannot now challenge the government’s discretionary determination about this
extra one-level § 3E1.1(b) reduction.
In addition, it does not matter to the breach analysis whether the district
court would have actually followed the government’s recommendation and granted
a reduction for acceptance of responsibility. See Santobello v. New York, 404
U.S. 257, 262-63, 92 S. Ct. 495, 499 (1971) (remanding the case due to the
prosecution’s breach of a plea agreement, even though the sentencing judge stated
that the breach did not influence the sentence and there was no reason to doubt the
judge’s statement); Johnson, 132 F.3d at 630 (stating that “the sentencing judge’s
acts are not important” to the issue of breach because the government, “not the
court,” violated the plea agreement). 4
4
The government argues that any breach of the plea agreement was harmless error
because, even with the two-level reduction for acceptance of responsibility, Copeland’s guideline
range would have been 292 to 300 months, only 8 months less than the original 300-month range
for Counts 27 and 37. This argument fails. Assuming, without deciding, that a breach of the
plea agreement is subject to such harmless error analysis, the error here was not harmless. As
the government acknowledges, the two-level reduction under § 3E1.1(a) would have reduced
Copeland’s guideline range, albeit by a relatively small amount, and the district court did not say
that it would have imposed the same sentence with or without the reduction. See United States
v. Williams, 627 F.3d 839, 845 (11th Cir. 2010) (holding that a sentencing error was not
10
Case: 12-13381 Date Filed: 05/29/2013 Page: 11 of 12
C. Obstruction of Justice Enhancement
Copeland contends that the government also breached the plea agreement by
advocating for an obstruction-of-justice enhancement under § 3C1.1. We disagree.
The plea agreement contained no provision prohibiting the government from
recommending an enhancement for obstruction of justice. Indeed, the agreement
expressly reserved the government’s right “to make any recommendations it deems
appropriate regarding the disposition of this case, subject to any limitations set
forth herein.”
We recognize that, according to the § 3E1.1 commentary, an obstruction-of-
justice enhancement “ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct.” U.S.S.G. § 3E1.1, comment. (n.4). The
same commentary also provides, however, that there may be “extraordinary cases
in which adjustments under both §§ 3C1.1 [obstruction enhancement] and 3E1.1
[acceptance reduction] may apply.” Id. Therefore, the fact that Copeland received
an obstruction-of-justice enhancement does not automatically or necessarily
prohibit him from receiving an acceptance-of-responsibility reduction.
Moreover, the government entered the plea agreement with full knowledge
of Copeland’s pre-indictment conduct that was later used for the obstruction-of-
harmless because the district court “did not state that it would impose the same sentence even if
it erred in calculating the applicable advisory guideline range”).
11
Case: 12-13381 Date Filed: 05/29/2013 Page: 12 of 12
justice enhancement, and cannot now be excused from fully performing its
promises as to acceptance of responsibility. See United States v. Johnson, 132
F.3d 628, 630 (11th Cir. 1998) (“It is not the court’s role to determine if the
government made a wise choice in entering into the plea agreement. Instead, the
court is only responsible for ensuring the terms of a plea agreement are followed.”
(citation omitted)).
D. Remedy
Given the government’s breach of the plea agreement in failing to
recommend a two-level reduction under § 3E1.1(a), two remedies are available for
Copeland: (1) “specific performance” of the agreement before a different
sentencing judge, or (2) withdrawal of the guilty plea. Johnson, 132 F.3d at 631;
United States v. Foster, 889 F.2d 1049, 1056 (11th Cir. 1989) (“[W]hen the
government breaches an agreement, the defendant must either be resentenced by a
new judge or allowed to withdraw his plea, regardless of whether the judge was
influenced [by the government’s breach].”). Specific performance is appropriate
here because “no question exists that the plea was knowingly and voluntarily
entered,” and Copeland does not seek to withdraw his plea. See id.Accordingly, we vacate Copeland’s sentence and remand for resentencing
before a different judge, consistent with this opinion.
VACATED AND REMANDED.
12