United States v. William Davenport ( 2015 )


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  •                                        PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 13-3644
    ___________
    UNITED STATES OF AMERICA
    v.
    WILLIAM DAVENPORT
    a/k/a Little One,
    Appellant
    __________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D. C. No. 1-08-cr-00424-006)
    District Judge: Honorable Christopher C. Conner
    ___________
    Argued September 10, 2014
    Before: FISHER, JORDAN and HARDIMAN,
    Circuit Judges.
    (Filed: January 6, 2015)
    Stephen R. Cerutti, II, Esq.
    Christy H. Fawcett, Esq.
    Office of United States Attorney
    228 Walnut Street, P.O. Box 11754
    220 Federal Building and Courthouse
    Harrisburg, PA 17108
    Christian A. Fisanick, Esq. [Argued]
    Amy C. Phillips, Esq.
    Office of United States Attorney
    235 North Washington Avenue
    P.O. Box 309, Suite 311
    Scranton, PA 18503
    Attorneys for Appellee
    J. Nicholas Ranjan, Esq. [Argued]
    K&L Gates
    210 Sixth Avenue
    Pittsburgh, PA 15222
    Attorney for Appellant
    ____________
    OPINION
    ____________
    HARDIMAN, Circuit Judge.
    William Davenport appeals an order of the District
    Court denying his motion to vacate, set aside, or correct his
    sentence under 28 U.S.C. § 2255. Davenport claims his trial
    counsel was ineffective when he failed to argue that the
    Government had breached Davenport’s plea agreement.
    2
    Because we agree with the District Court that the plea
    agreement was not breached, we will affirm.1
    I
    A
    On September 1, 2008, Drug Enforcement
    Administration agents executed a search warrant on a storage
    facility that Davenport controlled in Harrisburg,
    Pennsylvania. Once inside, the agents found large amounts of
    drug paraphernalia and cash as well as approximately 160
    grams of cocaine. The facility also housed three vehicles,
    including a Cadillac that contained a loaded nine-millimeter
    pistol stashed between its seat cushions.
    Several weeks later, DEA agents executed another
    search warrant, this time on Davenport’s residence in Enola,
    Pennsylvania. Davenport was present during this second
    search and agreed to cooperate. He was taken back to the
    DEA’s office, where he described his involvement with
    specific individuals in the drug trafficking business and
    admitted that he had purchased cocaine hydrochloride,
    cooked it into crack cocaine, and sold it. Davenport also
    admitted that the gun in the Cadillac was his.
    B
    Following the searches, Davenport and five others
    were charged with several drug-related offenses. After
    initially pleading not guilty, Davenport signed a plea
    agreement in which he waived indictment and pleaded guilty
    1
    The Court acknowledges the excellent advocacy of
    pro bono counsel, J. Nicholas Ranjan of K&L Gates LLP, on
    behalf of Mr. Davenport.
    3
    to a superseding information charging him with one count of
    conspiracy to distribute and possess with intent to distribute
    cocaine and cocaine base, in violation of 21 U.S.C. § 846.
    The plea agreement addressed, among other things,
    what recommendations the parties could make at sentencing.
    For example, Paragraph 12 stated that the Government would
    seek a three-level reduction in Davenport’s offense level if he
    accepted responsibility. Paragraph 13 permitted the
    Government to recommend a sentence it deemed appropriate,
    up to and including the maximum allowable by law.
    Likewise, Paragraph 26 stated that the Government could
    raise—and the sentencing court could consider—“all relevant
    information with respect to the defendant’s background,
    character and conduct including the conduct that is the subject
    of the charges which the United States has agreed to
    dismiss[.]” Rec. No. 178, at 16–17.2 And Paragraph 38 stated
    that the Government was not restricted in any way from
    responding to motions filed by Davenport or requests made
    by the sentencing court about how the Guidelines should be
    applied, “including but not limited to, requests for
    information concerning possible sentencing departures.” Rec.
    No. 178, at 23.
    Most important for this appeal, however, is Paragraph
    14, which listed several specific recommendations as to how
    the Guidelines should be applied to Davenport’s conduct.
    Therein, the parties initially agreed to recommend:
    that the quantity of cocaine hydrochloride
    attributable to the defendant is 15-50 kilos, the
    2
    Davenport proceeded on the original record. Thus, all
    references to “Rec. No., at __” are to record entries in the
    district court docket.
    4
    quantity of crack cocaine attributable to the
    defendant is between 500 grams and 1.5
    kilograms, the defendant obstructed or impeded
    or attempted to obstruct or impede the
    administration of justice with respect to the
    investigation or prosecution of the offense, and
    the defendant possessed a firearm.
    Rec. No. 178, at 8–9 (emphasis added). Paragraph 14 then
    stated that Davenport “understands that none of these
    recommendations is binding” on the U.S. Probation Office or
    the sentencing court, either of which could arrive at different
    findings, and that the Government fully intended to provide
    “all information in its possession which it deems relevant to
    the application of the [Guidelines] to the defendant’s
    conduct.” Rec. No. 178, at 9.
    At some point during the plea negotiations, the clause
    “and the defendant possessed a firearm” was stricken from
    Paragraph 14 and the initials “WD” and “RLM” (presumably
    “William Davenport” and his trial counsel, “Royce L.
    Morris”) were handwritten next to the deletion.3 Davenport
    argues that the stricken provision precluded the Government
    from pursuing a gun enhancement at sentencing. The
    Government counters that the strike-through meant nothing
    3
    The record does not indicate when this was done.
    Also, Davenport says his counsel and the Government
    initialed the stricken provision, Davenport Br. 4, whereas the
    Government claims Davenport and his counsel initialed the
    provision, Gov’t Br. 7. These ambiguities are immaterial to
    the outcome of this case.
    5
    more than that Davenport no longer stipulated to possession
    of a firearm.
    At a change-of-plea hearing, Davenport affirmed that
    he read and understood the plea agreement, and the
    Government summarized the specific provisions in
    Paragraphs 12 and 14. The Government made no mention of
    the gun enhancement during its recital of Paragraph 14, but it
    did state that a loaded gun had been found during the search
    of Davenport’s storage facility. Davenport admitted the facts
    presented, and the District Court accepted his plea of guilty.
    C
    The U.S. Probation Office calculated Davenport’s
    Total Offense Level at 35, which included a two-level
    enhancement under United States Sentencing Guidelines
    (USSG) § 2D1.1(b)(1) for possessing a firearm in connection
    with his offense and another two-level enhancement under
    USSG § 3C1.1 for obstructing justice. Davenport’s Criminal
    History Category was IV, which yielded a Guidelines range
    of 235 to 240 months’ imprisonment in light of the statutory
    maximum of 20 years. Davenport raised eight objections to
    the PSR.
    During Davenport’s sentencing hearing, the
    Government stated that there was “the issue of whether the
    gun enhancement should apply.” Rec. No. 313, at 2.
    Consequently, the Government called a DEA agent to
    respond to Davenport’s objections to the gun and obstruction
    of justice enhancements. After the DEA agent and another
    witness testified, the District Court invited Davenport’s trial
    counsel to argue that there was insufficient evidence to
    connect the firearm to the drug offense at issue. The Court
    then asked the prosecutor to reply, and she stated: “The area
    where the gun, loaded gun[,] was located was accessible from
    the same area where the drugs were located. I think the
    6
    circumstances under which the gun was possessed can be
    taken into consideration by the court.” Rec. No. 313, at 49–
    50.
    The District Court rejected Davenport’s objections to
    the PSR, but varied downward and sentenced him to 199
    months’ imprisonment. Davenport appealed his sentence and
    we affirmed. See United States v. Davenport, 422 F. App’x
    115 (3d Cir. 2011).
    D
    On July 3, 2012, Davenport filed a pro se motion to
    vacate, set aside, or correct his sentence under 28 U.S.C. §
    2255. The District Court denied the motion, holding that the
    stricken clause in the plea agreement meant merely that
    Davenport no longer stipulated to a gun enhancement, not
    that the Government had waived the right to advocate for the
    enhancement at sentencing. Accordingly, because the
    Government had not breached the plea agreement,
    Davenport’s trial counsel was not ineffective for failing to
    argue that it had.
    Davenport appealed and we granted a certificate of
    appealability on the question whether Davenport’s trial
    counsel was ineffective because he failed to object to the
    Government’s pursuit of a two-level gun enhancement in
    alleged violation of the terms of his plea agreement.4
    II
    We exercise plenary review over the legal component
    of an ineffective assistance of counsel claim. United States v.
    4
    The District Court had subject matter jurisdiction
    over Davenport’s motion to vacate, set aside, or correct his
    sentence pursuant to 28 U.S.C. § 2255. We have jurisdiction
    over his appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).
    7
    Smack, 
    347 F.3d 533
    , 537 (3d Cir. 2003). We review the
    underlying facts for clear error, but exercise independent
    judgment on whether those facts, as found by the District
    Court, show that counsel rendered ineffective assistance. 
    Id. (quoting United
    States v. Baird, 
    218 F.3d 221
    , 225 (3d Cir.
    2000)).
    III
    The threshold question presented is whether the
    Government breached Davenport’s plea agreement when it
    urged the District Court to impose a two-level gun
    enhancement under USSG § 2D1.1(b)(1). We hold that it did
    not, so it necessarily follows that Davenport’s trial counsel
    was not ineffective for failing to object to a non-existent
    breach.
    A
    We follow a three-step analysis in determining
    whether there has been a breach of a plea agreement. First, we
    identify the terms of the agreement and the government’s
    alleged improper conduct. Second, we determine whether the
    government has violated its obligations under that agreement.
    And if it has, we fashion the proper remedy. United States v.
    Nolan-Cooper, 
    155 F.3d 221
    , 235 (3d Cir. 1998) (citing
    United States v. Moscahlaidis, 
    868 F.2d 1357
    , 1360 (3d Cir.
    1989)).
    At the outset, we determine “whether the
    government’s conduct is inconsistent with what was
    reasonably understood by the defendant when entering the
    plea of guilty.” 
    Id. at 236
    (quoting United States v.
    Badaracco, 
    954 F.2d 928
    , 939 (3d Cir. 1992)). “Reasonably
    understood” is a “purely objective” standard governed by the
    common law of contract. United States v. Hodge, 
    412 F.3d 479
    , 485–86 (3d Cir. 2005). Specifically, we look to the plain
    meaning of the plea agreement and eschew a “rigidly literal”
    8
    interpretation of it. 
    Id. at 486.
    And we give the benefit of any
    doubt to the defendant, given the government’s “tremendous
    bargaining power” in negotiating such plea agreements,
    United States v. Schwartz, 
    511 F.3d 403
    , 405 (3d Cir. 2008),
    and the fact that the defendant, “by entering into the plea,
    surrenders a number of [his] constitutional rights,” Nolan-
    
    Cooper, 155 F.3d at 236
    .
    Once the plea agreement has been made, the
    government does not have to endorse its terms
    “enthusiastically,” 
    Badaracco, 954 F.2d at 941
    , but it is
    expected to “adhere strictly to the terms of the bargain it
    strikes,” 
    Moscahlaidis, 868 F.2d at 1361
    (quoting United
    States v. Miller, 
    565 F.2d 1273
    , 1274 (3d Cir. 1977)), and we
    will hold the government to that bargain.
    B
    Davenport argues that he reasonably expected that the
    Government would not pursue a gun enhancement based on
    the written terms of the plea agreement. We disagree. At the
    outset, we note that the extent to which the Government can
    be said to have advocated for an enhancement is itself
    debatable, given the fact that Davenport himself objected to
    the gun enhancement in the PSR, and the only time the
    Government addressed the issue at the sentencing hearing
    was when it was specifically asked to do so by the Court.
    Davenport makes three arguments in support of his
    claim that the Government breached the plea agreement.
    First, he claims that because Paragraph 14 contains a set
    number of sentencing recommendations the Government
    would pursue, the removal of one of those
    recommendations—the gun enhancement—led him to
    reasonably believe that the Government would not advocate
    for it at sentencing. “Under the contractual interpretive canon
    of expressio unius est exclusio alterius,” he argues, “the
    9
    expression of these items necessarily excluded anything that
    was not listed, including the firearm enhancement.”
    Davenport Br. 14. He cites the Tenth Circuit’s decision in
    United States v. Scott, where, on his view, the Court was
    presented with “nearly identical facts” and held that the
    government had breached a plea agreement when it agreed to
    take specific positions at sentencing but then sought an
    unstated enhancement. 
    469 F.3d 1335
    , 1338 (10th Cir. 2006).
    Second, Davenport leans on two Texas Supreme Court
    decisions for the proposition that a stricken provision in a
    contract “can manifest an intent to preclude or an
    unwillingness to be bound.” Davenport Br. 17 (citing
    Houston Exploration Co. v. Wellington Underwriting
    Agencies, Ltd., 
    352 S.W.3d 462
    , 472 (Tex. 2011), and
    Houston Pipe Line Co. v. Dwyer, 
    374 S.W.2d 662
    , 664–66
    (Tex. 1964)). Finally, Davenport argues that at the very least
    the stricken provision created ambiguity, which should be
    resolved in his favor. Davenport Br. 18 (citing 
    Schwartz, 511 F.3d at 405
    ).
    Davenport’s arguments fail because, as we stated in
    Schwartz, plea agreements “must be interpreted as a whole
    and no part should be 
    ignored.” 511 F.3d at 405
    (quoting
    Calamari & Perillo, Contracts § 3.13 (5th ed. 2003)). While
    Davenport homes in on the first part of Paragraph 14, the rest
    of that paragraph makes clear that the Government reserved
    the right to provide the District Court and the Probation
    Office with “all information in its possession which it deems
    relevant.” Rec. No. 178, at 9. Meanwhile, Paragraphs 13, 26,
    and 38 all put Davenport on notice of the Government’s
    significant flexibility at sentencing to respond to both his
    objections and the District Court’s inquiries. The record
    shows that the Government raised the issue of the gun only in
    direct response to Davenport’s argument that there was
    10
    insufficient evidence to connect the gun with his offense.
    Read as a whole, the plea agreement clearly permits this kind
    of advocacy.
    The plea agreement also makes plain that Paragraph 14
    contained joint recommendations of the parties.
    Recommendations that the parties had not agreed to, or that
    they could unilaterally make or oppose, were not included in
    that list. Accordingly, the removal of the gun enhancement
    meant simply that the parties no longer jointly agreed on that
    specific recommendation. It did not, as Davenport claims,
    mean that the parties had jointly agreed that the Government
    would be barred from bringing the gun enhancement to the
    Court’s attention at sentencing. Davenport’s argument ignores
    the other provisions of the plea agreement that explicitly
    permit the Government to do just that.
    Davenport’s argument also falls prey to the logical
    fallacy of the inverse—the incorrect assumption that if P
    implies Q, then not-P implies not-Q. See NLRB v. Noel
    Canning, 
    134 S. Ct. 2550
    , 2603 (2014) (Scalia, J., concurring
    in judgment) (explaining the logical error); Ruggero J.
    Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking
    161 (3d ed. 1997) (same). Davenport essentially argues that
    striking the stipulation to the gun enhancement was
    tantamount to an agreement that he did not possess a firearm.
    He is incorrect. While striking the gun clause vitiated the
    recommendation, it did not tacitly impose the obverse
    recommendation.
    Nor is Davenport’s reliance on the Tenth Circuit’s
    decision in Scott availing. The plea agreement in Scott
    delineated the “positions [the parties] expect to take at
    sentencing” and then articulated what those positions would
    be. 
    Scott, 469 F.3d at 1338
    . The Tenth Circuit determined that
    the Government had breached the agreement because Scott
    11
    reasonably understood that language to mean the Government
    would not argue for other sentencing enhancements, but it did
    so anyway. 
    Id. Here, the
    parties did not circumscribe the
    positions they were allowed to take at sentencing—a fact
    made evident when one reads the plea agreement as a whole,
    including the second half of Paragraph 14 and Paragraphs 13,
    26, and 38. Rather, the parties consented to a list of joint
    recommendations and agreed that the Government would
    have substantial flexibility to advocate positions at
    sentencing.
    IV
    Because the Government did not breach Davenport’s
    plea agreement, his trial counsel was not ineffective for
    failing to say there was a breach. The judgment of the District
    Court will be affirmed.
    12