United States v. MacPherson ( 2009 )

08-1829-cr (CON))
U.S. v. MacPherson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2009
Submitted: October 19, 2009 Decided: December 30, 2009
Docket No. 08-1829-cr (CON)
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UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS MACPHERSON,
Defendant-Appellant.
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Before: NEWMAN, CALABRESI, and KATZMANN, Circuit Judges.
Appeal from the April 15, 2008, judgment of the United States
District Court for the Eastern District of New York (Dora L. Irizarry,
District Judge), sentencing the defendant to 262 months’ imprisonment
upon his plea of guilty to narcotics offenses. The defendant contends
that he should be permitted to withdraw his plea because at sentencing
the prosecutor advocated a Guidelines sentencing range higher than the
range estimated in the plea bargain. Judge Newman concurs with a
separate opinion.
Affirmed.
Todd M. Merer, New York, N.Y., for
Defendant-Appellant.
Benton J. Campbell, U.S. Atty., Susan
Corkery, Licha M. Nyiendo, Asst.
U.S. Attys., Brooklyn, New York,
N.Y., on the brief), for Appellee.
PER CURIAM:
This criminal appeal challenges a sentence for a narcotics
violation on the ground that the Government violated the plea
agreement by recommending a sentence higher than the range estimated
to be applicable at the time of the plea. The appeal also challenges
the reasonableness of the sentence, which included 262 months’
imprisonment. Carlos MacPherson appeals from the April 15, 2008,
judgment of the District Court for the Eastern District of New York
(Dora L. Irizarry, District Judge). Applying plain error review to
the challenge to the plea agreement, see Puckett v. United States, 129
S. Ct. 1423, 1428-33 (2009), we conclude that, if any error occurred
with respect to the plea agreement, it was not plain error, and that
the sentence survives review for reasonableness. We therefore affirm.
Background
MacPherson and his co-defendants were charged in a three count
indictment with various narcotics offenses. Pursuant to a plea
agreement, MacPherson pled guilty to one count, which charged him with
conspiring to import into the United States 100 grams or more of
heroin and five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 963, 960(a)(1), 960(b)(2)(A), and 960(b)(1)(B)(ii). In
conformity with United States v. Pimentel, 932 F.2d 1029, 1034 (2d
Cir. 1991), the Government included in the plea agreement its estimate
of a likely Guidelines sentencing range. The agreement stated, in
pertinent part:
2. . . . The Office will advise the Court and the
Probation Department of information relevant to sentencing,
including criminal activity engaged in by the defendant, and
such information may be used by the Court in determining the
defendant’s sentence. The Office estimates the likely
adjusted offense level under the Guidelines to be level 32
[calculated from base offense level 34, see U.S.S.G.
§ 2D1.1(c)(3), less 2 levels for acceptance of
responsibility, see id. § 3E1.1(a)]. This level carries a
range of imprisonment of 121 to 151 months [in Criminal
History Category I]. If the defendant pleads guilty on or
before June 20, 2007, the government will move the Court,
pursuant to U.S.S.G. § 3E1.1.(b), for an additional one-
level reduction, resulting in an adjusted offense level of
31. This level carries a range of imprisonment of 108 to
135 months, assuming that the defendant will be sentenced
within Criminal History Category I. Because the applicable
statutory mandatory minimum sentence is ten years[‘]
imprisonment, the applicable Guidelines range is expected to
be 120 to 135 months. The defendant stipulates that his
sentence should be calculated based on a drug type and
quantity of fifteen kilograms or more of a substance
containing cocaine and waives any right to a jury trial in
connection with such issue.
3. The Guidelines estimate set forth in paragraph 2 is
not binding on the Office, the Probation Department or the
Court. If the Guidelines offense level advocated by the
Office, or determined by the Probation Department or the
Court, is different from the estimate, the defendant will
not be entitled to withdraw the plea.
. . .
5. The Office agrees that:
. . .
based upon information now known to the Office, it will
b. take no position concerning where within the
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Guidelines range determined by the Court the sentence should
fall; and
c. Make no motion for an upward departure under
the Sentencing Guidelines.
If information relevant to sentencing, as determined by the
Office, becomes known to the Office after the date of this
agreement, the Office will not be bound by paragraphs 5(b)
and 5(c).
At the plea hearing the District Court, after ascertaining that
the defendant understood the rights he was giving up by pleading
guilty, stated:
Let me just also remind you that by entering into this
[plea] agreement you have stipulated that your sentence
should be calculated based on the drug type and quantity of
15 kilograms or more of a substance containing cocaine and
that you have waived any right to a jury trial in connection
with any such issue, do you understand that?
The defendant answered, “Yes.”
The Court then discussed the Guidelines and stated:
The bottom line is that until the date of sentencing when we
get a presentence report, as I said before, and I hear from
you, your lawyer and from the government, we will not know
with any certainty what the guidelines will be or whether
there will be grounds to depart from them or whether the
Court will impose a non-guideline sentence, do you
understand that?
The defendant answered, “Yes.”
In response to the Court’s inquiry, the prosecutor stated that
“the government estimates that the defendant would fall within
adjusted offense level 31” with a sentencing range, because of the ten
year mandatory minimum, of 120 to 135 months. The Court then
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ascertained that the defendant understood that “these are all
estimates that are not binding on the government, Probation or the
Court” and that “if this estimate is wrong, that you will not be
permitted to withdraw your plea of guilty.”
The Court then turned to the specifics of Count One, reading it
verbatim to the defendant, including the references to importing “100
grams or more of a substance containing heroin” and “5 kilograms or
more of a substance containing cocaine.” The defendant explicitly
acknowledged repeatedly traveling to Peru to make arrangements to
purchase heroin and meeting a courier at John F. Kennedy Airport who
was carrying ten kilograms of cocaine.
The Court accepted the guilty plea to Count One.
The Presentence Report (“PSR”) determined that the defendant
conspired to import and distribute fifteen kilograms of cocaine and
seven kilograms of heroin. The PSR recommended an upward adjustment
of 4 levels for the role that the defendant played in the offense,
i.e., managing criminal activity involving more than five
conspirators. As a result, the PSR found appellant’s total offense
level to be 37, 6 levels higher than the estimate of 31 in the plea
agreement. The sentencing range at offense level 37 in Criminal
History Category I is 210 to 262 months.
At sentencing, the defendant objected to the four level
enhancement for his role in the offense and the inclusion of the seven
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kilograms of heroin in the determination of his offense level. The
Defendant did not object on the basis of the inconsistency between the
estimate of the Guidelines sentencing range in the plea agreement and
the PSR, nor did he seek to withdraw his guilty plea. The Government
advocated a sentence based on seven kilograms of heroin, in addition
to the cocaine, and a role adjustment. The District Court overruled
the defendant’s objections, reviewed the section 3553(a) factors, and
determined that a non-Guidelines sentence was not appropriate. The
Court also found that the defendant had not been forthright in his
acceptance of responsibility. The Court found that the defendant’s
offense level was 37 with a sentencing range of 210 to 262 months and
imposed a sentence of 262 months’ imprisonment, five years of
supervised release, and a $100 special assessment.
Discussion
There are two issues for review: (1) whether the Government
violated the plea agreement and (2) whether appellant’s sentence at
the high end of the applicable Guidelines range was appropriate.
I. Claimed Violation of the Plea Agreement
(1) Standard of review. Although we have previously ruled that
a defendant need not object in the trial court in order to preserve
for appeal a claim that a plea agreement has been violated, see, e.g.,
United States v. Griffin, 510 F.3d 354, 360 (2d Cir. 2007); United
States v. Lawlor, 168 F.3d 633, 636 (2d Cir. 1999), the Supreme Court
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has more recently ruled that such claims are to be reviewed only for
plain error in the absence of objection in the trial court. See
Puckett, 129 S. Ct. at 1428-33. To prevail on plain error review, an
appellant must show that (1) there is error, (2) it is plain, (3) it
affects a substantial right, and (4) it seriously affects the fairness
of the judicial proceedings, resulting in a miscarriage of justice.
See United States v. Zvi, 168 F.3d 49, 58 (2d Cir. 1999).
(2) Applying plain error review.
For the first time on appeal, MacPherson contends that his
sentence violated the plea agreement. His claim is based not only on
the Government’s advocacy of a sentence based on the seven kilograms
of heroin that were not included in the Pimentel estimate, but also on
the sentence in the plea agreement in which the defendant “stipulates
that his sentence should be calculated based on a drug type and
quantity of fifteen kilograms or more of a substance containing
cocaine.” He contends that the Government’s advocacy that his
sentence should be based on the seven kilograms of heroin, which were
known to the Government at the time of the plea agreement, shows that
the Government’s estimate was in bad faith and justifies an
opportunity to withdraw his plea. Whether this contention survives
plain error review requires some consideration of two recent decisions
concerning sentences that exceed Government Pimentel estimates, United
States v. Palladino, 347 F.3d 29 (2d Cir. 2003), and United States v.
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Habbas, 527 F.3d 266 (2d Cir. 2008).
Palladino ruled that the plea could be withdrawn after the
prosecutor advocated a higher sentencing range than the range
estimated in the plea agreement. However, in similar circumstances,
Habbas ruled that the plea could not be withdrawn, stating:
[W]e reject [the defendant’s] argument that the government
violated his rights under the plea agreement by advocating
a higher Guidelines level than it had estimated in the plea
agreement.
Habbas, 527 F.3d at 270. In addition, Habbas explicitly rejected the
claim that Palladino “established a broad rule, categorically
prohibiting the government from deviating from a Pimentel estimate,
absent newly discovered facts.” Id. at 272. In view of these
conflicting outcomes concerning plea withdrawal in two cases where the
prosecutor advocated a sentencing range higher than the range
estimated in the plea agreement, the prosecutor’s similar conduct in
the pending case cannot have precipitated plain error, if any error at
all.
Nor does the prosecutor’s advocacy of a sentence based on the
seven kilograms of heroin constitute plain error just because the plea
agreement stated that the defendant “stipulates that his sentence
should be calculated based on a drug type and quantity of fifteen
kilograms or more of a substance containing cocaine.” Initially, we
note that, whereas typical contract stipulations state that the parties
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stipulate to some agreed upon terms, the agreement in this case states
only that the defendant stipulates to a sentence based on the cocaine
quantity. In any event, the agreement and the plea colloquy put the
defendant on notice that the Pimentel estimate was not binding on the
prosecutor and that if the estimate was wrong, the plea could not be
withdrawn. In such circumstances, there was no plain error.
II. Challenge to the Sentence
The Appellant contends that the District Court double-counted
certain factors by sentencing him at the high end of the guideline
range based on the same factors that provided the basis for the Court’s
finding of the applicable Guidelines range in the first place. These
factors were that MacPherson had trafficked in heroin and cocaine in
substantial quantities, he was an organizer and a supervisor and had
recruited couriers, and he had engaged in narcotics offenses prior to
the charged crime.
Initially, we note that there is no authority that prevents a
sentencing judge from using facts of the offense conduct both to
determine the applicable Guidelines range and to select a sentence
within that range. In any event, the District Court did not limit its
articulation of sentencing reasons to facts that determined the
sentencing range. The Court explained that MacPherson created “his own
drug organization,” got his father involved in the organization as a
courier, “preyed on some of [his] co-defendants when they were facing
dire family situations and [] enticed them into helping [him] to bring
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drugs into this country.” The Court also noted that when one of
MacPherson’s co-defendants “tried to extricate herself, and in fact she
did extricate herself, [appellant] still came after her trying to
convince her to get back involved.” Sentencing at the high end of the
applicable range was not unreasonable.
Conclusion
The judgment of the District Court is affirmed.
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U.S.A. v. MacPherson
Docket No. 08-1829-cr (CON)
JON O. NEWMAN, Circuit Judge, concurring:
I agree that MacPherson is not entitled to withdraw his guilty
plea because not only is there no plain error, as the Court holds,
there is no error at all. I add these additional views to explain why
this is so, a discussion that endeavors to resolve the tension between
United States v. Palladino, 347 F.3d 29 (2d Cir. 2003), and United
States v. Habbas, 527 F.3d 266 (2d Cir. 2006), this Court’s two most
recent decisions on plea withdrawal claims based on a prosecutor’s
advocacy at sentencing of a Sentencing Guidelines range higher than the
range estimated in a plea bargain. These decisions differ not only in
their outcomes (plea agreement violated in Palladino; plea agreement
not violated in Habbas), but critically in their rationale as to what
circumstances establish a breach of a plea agreement based on a so-
called Pimentel estimate. See United States v. Pimentel, 932 F.2d
1029, 1034 (2d Cir. 1991).
Notwithstanding these differences, the decisions are similar in
several respects. In both Palladino and Habbas, the plea agreement
included an estimate by the prosecutor as to the applicable sentencing
range under the Sentencing Guidelines. Both agreements also included
a statement that the estimate was based on information known to the
Government at the time of the plea agreement. And in both cases, the
prosecutor contended at sentencing that the applicable Guidelines
sentencing range was higher than originally estimated. Despite these
similarities, we ruled that denying withdrawal of the plea was error
in Palladino and was not error in Habbas.
Palladino found the agreement breached because “[i]t was . . .
logical for defendant to believe that the estimate, and the
Government’s stance at the sentencing hearing, would not be altered in
the absence of new information . . . .” 347 F.3d at 34. The basis for
that belief was said to be the phrase “based on information known to
the Office at this time,” a phrase that preceded the Government’s
Guidelines range estimate. Id. at 31.
There can be no doubt that Pallidino considered this phrase
critical. First, it was italicized when quoted. See id. Second, the
Court noted as “a curious fact” that this phrase was not brought to the
attention of the sentencing judge. See id. at 33. Third, and most
important, the Court explicitly relied on the phrase in stating its
rationale:
In the circumstances presented in this case, we believe
that defendant had a reasonable expectation that the
Government would not press the Court for an enhanced offense
level in the absence of new information. The language of
the agreement specifically stated that the Government’s
estimate was “based on information known to the [Government]
at [the time of the plea].” . . . It was thus logical for
defendant to believe that the estimate, and the Government’s
stance at the sentencing hearing, would not be altered in
the absence of new information . . . .
Id. at 34.
However, Habbas views the phrase “known to the Government” as
of little, if any, consequence:
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The problem in Palladino was not that those words appeared
in the Pimentel estimate, but rather the combination of
passages of the plea agreement conferring assurance that the
government would not advocate for a sentence higher than the
estimate, with the aura of unfair dealing that underlay the
government’s change of position. Based on our reading of
Palladino, we very much doubt that the result of that case
would have changed if, all else remaining the same, those
words had not appeared in the Pimentel estimate.
Habbas, 527 F.3d at 272 n.1. I agree with Habbas on this point.
Whether or not the Government says that its estimate is based on
information “known to the Government at this time,” the estimate could
only be based on such information. It could not be based on what the
Government does not know at that time!
The decisions also differ in the significance they attach to the
phrases in both plea agreements stating that (a) the estimate “is not
binding on the [United States Attorney’s] Office,” and (b) if the
Guidelines level “advocated by the [United States Attorney’s] Office”
is “different from the estimate,” the defendant could not withdraw the
plea. Habbas says that these statements “warned in several different
ways that the government was likely to advocate for a higher sentence.”
Id. at 270-71. Palladino accorded no significance to these statements
and ruled that the plea agreement was violated when the Government
advocated an enhancement based on information that had been known at
the time of the plea.
In light of Palladino, a defendant in Habbas, named Rahman,
contended that whenever the Government makes a Pimentel estimate, the
plea agreement prohibits the Government from deviating from the
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estimate in the absence of new evidence. However, Habbas explicitly
rejected that interpretation:
[W]e reject Rahman’s argument that the government violated
his rights under the plea agreement by advocating a higher
Guidelines level than it had estimated in the plea
agreement.
Habbas, 527 F.3d at 270. In addition, Habbas explicitly rejected the
claim that Palladino “established a broad rule, categorically
prohibiting the government from deviating from a Pimentel estimate,
absent newly discovered facts.” See id. at 272.
The plea agreement in the pending case does not have the “known
to the Office” language, which Palladino deemed critical, but which
Habbas deemed inconsequential. On the other hand, the plea agreement
does have the “not binding” and “advocate[]” language, which Habbas
deemed critical, but which Palladino deemed inconsequential.
Palladino and Habbas are problematic, not only for their
inconsistency but also for the uncertainty they risk for the use of
Pimentel estimates. I agree with Habbas that there should not be a
bright-line rule permitting a plea to be withdrawn whenever the
Government advocates a sentence above the plea agreement estimate. If
we start inquiring as to what the Government knew at the time of the
plea agreement, we open up a difficult area. Would the Government
“know” of more offense conduct at the time of the plea agreement only
if the evidence was in the office, or if an agent had told a prosecutor
about it, or if a confidential informant had told the agent about it?
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How reliable would the information have to be to be “known” to the
Government for purposes of making a Pimentel estimate binding? In the
pending case, the Government’s knowledge of the heroin at the time of
the plea agreement is clear, but if we were to make withdrawal of a
plea available whenever the Government can be said to have “knowledge”
of more offense conduct than is reflected in a Pimentel estimate, we
would open up a potentially broad inquiry of uncertain limits.
I think a far better approach is to uphold all plea agreements
with Pimentel estimates, regardless of whether the Government at
sentencing advocates a higher Guidelines range (even one based on
previously known facts), as long as the agreement makes clear that the
Government is not bound by the estimate and the district judge
ascertains at the plea colloquy that (1) the defendant understands that
the estimate is not binding and (2) if the estimate is wrong, the
defendant will not be permitted to withdraw his plea. That would leave
Pimentel letters where they were initially intended to be: only
estimates and not a basis for limiting the Government’s sentencing
advocacy nor a basis for withdrawing a plea.
In this case, the plea agreement explicitly stated:
The Guidelines estimate put forth in paragraph 2 is not
binding on the Office, the Probation Department or the
Court. If the Guidelines offense level advocated by the
Office, or determined by the Probation Department or the
Court, is different from the estimate, the defendant will
not be entitled to withdraw his plea.
Plea Agreement, ¶ 3. This language makes clear that the Government may
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advocate at sentencing a guideline higher than the estimate. The
agreement in Habbas contained identical language, see Habbas, 527 F.3d
at 270, and the Habbas opinion relied on it, see id.More important, in our case, the plea colloquy included the
following:
THE COURT: The bottom line is that until the date of
sentencing when we get a presentence report, as I said
before, and I hear from you, your lawyer and from the
Government, we will not know with any certainty what the
guidelines will be or whether there will be grounds to
depart from them or whether the Court will impose a non-
guideline sentence, do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that these are all
estimates that are not binding on the government, Probation
or the Court?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you also understand that if this estimate
is wrong, that you will not be permitted to withdraw your
plea of guilty?
THE DEFENDANT: Yes, Your Honor.
Thus, the Court’s colloquy informed MacPherson that (a) until the
Court heard from the Government, there would not be certainty as to
what the applicable guideline would be, (b) the estimate in the plea
agreement was not binding on the Government, and (c) if the estimate
was incorrect, the plea could not be withdrawn.
A plea colloquy can be examined to determine a defendant’s
understanding of a plea agreement. See United States v. Woods, 581
F.3d 531, 534 (7th Cir. 2009); United States v. Azure, 571 F.3d 769,
773-74 (8th Cir. 2009); United States v. Woolley, 123 F.3d 627, 632
(7th Cir. 1997). The colloquy in this case removes any basis for
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permitting the defendant to withdraw his plea simply because, at the
time of the plea agreement, the Government knew of facts that would
have justified a higher estimate.
If we permit withdrawal of a plea in cases such as this, we risk
two adverse consequences. First, the Government will likely stop
making Pimentel estimates. These estimates are not required, and will
not be continued if they serve as a frequent basis for post-sentencing
plea withdrawals. Second, the defendant gets two bites at the apple:
he first argues at sentencing for a lenient sentence, and if he does
not get one, he then appeals on the ground that he should be allowed
to withdraw his plea. A properly worded plea agreement and a clear
plea colloquy concerning that agreement, both of which were present in
the pending case, should avoid both consequences.
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