United States v. Bancroft , 68 F. App'x 312 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-10-2003
USA v. Bancroft
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3310
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3310
___________
UNITED STATES OF AMERICA
vs.
ROBERT BRUCE BANCROFT,
Appellant.
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 01-cr-00665-2)
District Judge: The Honorable Eduardo C. Robreno
___________
ARGUED MAY 20, 2003
BEFORE: SCIRICA, Chief Judge, NYGAARD, and BECKER, Circuit Judges.
(Filed: June 10, 2003)
Robert J. O’Shea, Jr., Esq. (Argued)
Kenney & O'Shea
1818 Market Street
Suite 3520
Philadelphia, PA 19103
Counsel for Appellant
Ewald Zittlau, Esq. (Argued)
Suite 1250
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Robert Bruce Bancroft appeals his sentence of 228 months for his
involvement in a conspiracy to distribute methamphetamine. The District Court declined
to grant the government's 18 U.S.C. § 3553(e) motion for departure below the mandatory
minimum after the government argued against its own motion during the sentencing
hearing. Bancroft asserts on appeal that the government violated the terms of his plea
agreement by this conduct. We have plenary review over questions of law pertaining to
the interpretation of plea agreements. United States v. Moscahlaidis, 868 F.2d 1357,
1360 (3d Cir. 1989). We will affirm the District Court.
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I.
Bancroft argues that the government violated the terms of the plea
agreement by making, but then arguing against, the § 3553(e) motion. When determining
if the government violated the plea agreement, we use three steps: “First, what are the
facts of the case, i.e., what are the terms of the agreement and the conduct of the
government; second, whether the conduct of the government violated the terms of the
plea agreement; and third, what is the appropriate remedy if the court concludes that a
violation occurred.” Moscahlaidis, 868 F.2d at 1360.
Our inquiry regarding the § 3553(e) motion begins with a look at the
language of the agreement and the subsequent actions by the government. The plea
agreement required the government to “[m]ake a motion to allow the Court to depart
below any statutory mandatory minimums pursuant to 18 U.S.C. § 3553(e)” if the
government determined that Bancroft had provided “complete and substantial assistance”
with the investigation. The government, prior to sentencing, filed the § 3553(e) motion
requesting the appropriate departure. At the sentencing hearing, the government
acknowledged the motion and its affect of allowing the sentencing judge to depart, but
then argued against granting the § 3553(e) motion by detailing Bancroft's criminal history
and likelihood of recidivism. With this factual scenario in place, we move to the second
question under Moscahlaidis: did the conduct of the government violate the plea
agreement?
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The government was permitted to make any argument it wished once it
fulfilled its obligation to file the bargained-for motions. United States v. Medford, 194
F.3d 419, 423 (3d Cir. 1999). In Medford, we addressed the near identical situation
where the “[d]efendants contend[ed] that the government violated the plea agreement by
filing a downward departure motion and then stating at the sentencing hearing that it did
not recommend a downward departure.” Id. at 422. The language of the plea agreement
in Medford was almost identical to that found in Bancroft’s agreement. Id. at 423 (“[T]he
plea agreement required the government ‘to make a motion to allow the Court to depart
from the Sentencing Guidelines pursuant to Sentencing Guidelines § 5K1.1, if the
government, in its sole discretion, determines that the defendant has provided substantial
assistance.’”). In Medford, we focused on the language merely requiring the government
to file the motion:
We interpret the plain terms of the plea agreement to require
only that the government file a § 5K1.1 motion in order to
give the District Court the power (“to allow the Court”) to
depart downward under that provision. Contrary to
defendants' suggestions, the plea agreement did not require
the government to recommend a downward departure at the
sentencing hearing; nor did it prohibit the government from
stating at the sentencing hearing that it did not recommend
departure. Therefore, when the government filed the 5K1.1
motion, it complied with the terms of the plea agreement.
Id. Although Medford dealt with a § 5K1.1 motion, the principle announced is
indistinguishable from our case and controls our outcome. Once the government files the
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motion for departure, it has fulfilled its obligation under the plea agreement and is free to
argue for or against the motion.
Bancroft's second argument, that he did not “receive from the government
that which was reasonably due to him under the circumstances,” is also resolved by
Medford. Allegations of bad faith were addressed in Medford, where we confronted the
“contention that the government acted in bad faith by failing to make a more concerted
5K1.1 downward departure motion at the time of sentencing,” and found that because the
government fulfilled its obligation to file the motion, there was no bad faith. Id. at 423.
Here, because the government complied with the terms of the plea agreement by filing the
§ 3553(e) motion, its actions were not unreasonable or in bad faith.
II.
Bancroft makes two other arguments regarding the conduct of the
government in this case. First, he contends that the government did not make the nature
and extent of his cooperation known, in violation of the plea agreement. This argument
has no merit. At the sentencing hearing, the government attorney throughly explained
Bancroft's cooperation. See App. at 44–45.
Bancroft’s final argument is that the government breached the plea
agreement by altering its sentencing recommendation at the time of sentencing. This
argument is equally unpersuasive. In the sentencing memorandum, the government
recommended “that a substantial sentence of imprisonment be imposed based upon the
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seriousness of the offense committed, the fact that the defendant had a prior felony drug
offense conviction, and the fact that the defendant is a career offender.” See App. at 39.
No definition of “substantial sentence” was given in the memorandum. At the sentencing
hearing, the government asked for a sentence of 20 years following an explanation of
Bancroft's criminal history and the nature of the current offense. Pursuant to the plea
agreement, the government did not contradict itself by simply defining a “substantial
sentence” to be 20 years at sentencing.
III.
For the foregoing reasons will we affirm the order of the District Court.
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_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard_____________
Circuit Judge
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