United States v. Abdulrasheed Yusuf ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-3472
_____________
UNITED STATES OF AMERICA,
Appellant
v.
ABDULRASHEED YUSUF
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-18-cr-00042-001)
District Judge: Hon. Katharine S. Hayden
_______________
Argued
September 23, 2020
_____________
Nos. 19-3697/3800
_____________
UNITED STATES OF AMERICA,
Appellant in 19-3697
v.
STEVEN CAMPBELL,
Appellant in 19-3800
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-18-cr-00354-001)
District Judge: Hon. Anne E. Thompson
_______________
Argued
September 23, 2020
Before: SMITH, Chief Judge, McKEE, and JORDAN,
Circuit Judges.
(Filed: April 2, 2021)
_______________
David B. Glazer [ARGUED]
Glazer & Luciano
19-21 West Mount Pleasant Avenue
Livingston, NJ 07039
Counsel for Abdulrasheed Yusuf
James R. Murphy [ARGUED]
947 State Road – Suite 205
Princeton, NJ 08540
Counsel for Steven Campbell
2
Mark E. Coyne
Richard J. Ramsay [ARGUED]
Office of United States Attorney
970 Broad Street – Room 700
Newark, NJ 07102
Counsel for the United States of America
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
In these consolidated appeals, the government
challenges the sentences given to Steven Campbell and
Abdulrasheed Yusuf, both of whom pled guilty to their
respective crimes. As part of their plea agreements, Campbell
and Yusuf each agreed not to argue for a sentence outside the
range recommended by the United States Sentencing
Guidelines. The government contends that both defendants
breached their plea agreements by in fact seeking sentences
below the guidelines-recommended ranges.
Although the facts of these two cases provide a useful
contrast, ultimately, we conclude that the government’s
contentions are well founded in both. Accordingly, we will
vacate Campbell’s and Yusuf’s sentences and remand for
resentencing.
Campbell also cross-appeals, arguing that evidence
discovered during the traffic stop leading to his arrest should
have been suppressed because the stop violated the Fourth
Amendment. The District Court rejected his arguments,
3
holding that the police officer involved was justified in
stopping Campbell’s vehicle and did not impermissibly extend
the duration of the stop. Because we agree that the traffic stop
was conducted within the bounds of the Fourth Amendment,
we will affirm the order denying suppression.
I. BACKGROUND
A. Federal Sentencing
As context for the case histories that follow, we briefly
note the legal framework that governs sentencing. Federal
courts follow a well-established three-step process to
determine the sentence in any given case. United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2011). First, the court
calculates the defendant’s non-binding sentencing range as
provided by the sentencing guidelines. Id. The range is a
function of the defendant’s offense level and his criminal
history points, which are respectively determined by the
particular facts of the case and the defendant’s past behavior,
all as viewed through the substantive rules set forth in the
guidelines. See Guidelines Manual 2018, United States
Sentencing Commission,
https://www.ussc.gov/sites/default/files/pdf/guidelines-
manual/2018/GLMFull.pdf. Second, the court considers
whether one or more departure provisions of the guidelines are
applicable, warranting a sentence outside of the ordinarily
recommended range. See Gunter, 462 F.3d at 247. Finally, the
court looks to the sentencing factors listed in 18 U.S.C.
4
§ 3553(a), 1 to determine whether, as a matter of discretion, a
variance from the recommended range is appropriate. 2 Id.
With that framework in mind, we turn to the details of
the cases before us.
1
The seven factors a court must consider under
§ 3553(a) are: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the
need for the sentence imposed to reflect the four primary
purposes of sentencing, i.e., retribution, deterrence,
incapacitation, and rehabilitation; (3) the kinds of sentences
available (e.g., whether probation is prohibited or a mandatory
minimum term of imprisonment is required by statute); (4) the
sentencing range established through application of the
sentencing guidelines and the types of sentences available
under the guidelines; (5) any relevant “policy statements”
promulgated by the Commission; (6) the need to avoid
unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct;
and (7) the need to provide restitution to any victims of the
offense. 18 U.S.C. § 3553(a).
2
A “variance” is a sentence that deviates from the
guidelines range based on the § 3553(a) sentencing factors. A
“departure,” on the other hand, is a sentence that differs from
the guidelines range based on specific guidelines provisions
that authorize such changes. United States v. Gunter, 462 F.3d
237, 247 n.10 (3d Cir. 2006) (citation omitted).
5
B. Steven Campbell
Campbell was arrested following a traffic stop when it
was discovered that he was unlawfully in possession of
firearms. He had been driving home from work, when a police
officer pulled behind him at a stop light and noticed that his
license plate was partially obstructed. The officer checked the
number on the plate against a law enforcement database and
saw that Campbell, who was listed as the owner of the car, had
had his license suspended the month before. When the light
turned green and Campbell turned the corner, the officer
verified that Campbell was driving the car from the photograph
on record.
The officer then pulled Campbell over and asked for his
license, registration, and insurance card. As Campbell began
searching for his registration and insurance card, he
unintentionally revealed a handgun in the center console. The
officer thought he saw a gun but “wasn’t 100 percent sure at
that point[.]” (JA at 108.) When Campbell produced his
insurance card, the officer saw that it was expired. Campbell
next produced his vehicle registration. He then continued
looking for an up-to-date insurance card, and the officer
suggested he look in the center console. While Campbell was
searching the center console a second time, the officer saw the
gun more clearly. Campbell also opened the glove box, and
the officer observed a second gun there. Upon seeing the
second gun, the officer drew his firearm and asked Campbell
to put his hands on the steering wheel. At that point, the officer
placed Campbell under arrest. Up to that point, the stop had
lasted approximately five minutes.
6
Campbell as a convicted felon was prohibited from
possessing guns. He was indicted under 18 U.S.C. § 922(g) for
possessing the two guns and ammunition. He filed a motion to
suppress, arguing that the officer lacked probable cause for a
search and arrest. The government opposed that motion, and,
following a suppression hearing, the District Court denied it.
Campbell ultimately entered into a plea agreement
which included a limited right of appeal, permitting him to seek
review of the suppression ruling. The agreement also noted
that Campbell and the government agreed “that the United
States Sentencing Guidelines are not binding upon the
Court[,]” but “that the Court should sentence Campbell within
the Guidelines range that results from the total Guidelines
offense level” specified in the agreement. (JA at 199.) In
addition, “[t]he parties agree[d] not to seek or argue for any
upward or downward departure, adjustment or variance” and
“that a sentence within the Guidelines range that results from
the agreed … offense level is reasonable.” (JA at 199.) The
parties agreed that the guidelines offense level was 18,
resulting in a guidelines range of 30 to 37 months of
imprisonment. 3
3
The Presentence Investigation Report from the U.S.
Probation Office concluded that Campbell’s criminal history
score was three, resulting in a category II criminal history
designation. Although not expressly agreed to in the plea
agreement, the parties did not dispute that designation, and it
is the one that, when combined with an offense level of 18,
yields a range of 30 to 37 months on the guidelines sentencing
table.
7
Despite the agreement not to seek a departure or
variance, when Campbell’s counsel filed a sentencing
memorandum, he reminded the District Court of its discretion
to look beyond the guidelines. He closed the memorandum by
saying, “the only question left to answer is does one treat
Steven Campbell by the calculated Guideline formula or by an
appreciation of the person [] he has become.” (JA at 221-23.)
The sentencing memorandum also included letters of support
asking for leniency in sentencing, some plainly asking for a
non-custodial sentence. The government did not object to
those statements in its subsequent sentencing memorandum
and said instead that, “[i]n accordance with the terms of the
plea agreement, Campbell has not sought a variance[.]” (JA at
268.)
At the sentencing hearing, Campbell’s counsel again
emphasized the importance of the § 3553(a) factors, saying he
did so “despite whatever the plea agreement says between the
Government and my client and I [sic.]” (JA at 280.) He also
described the guidelines range as “the starting point obviously
… and that’s just it, a starting point.” (JA at 280.) When he
had a chance to put Campbell himself on record, counsel asked
what Campbell thought a just punishment would be for his
offense, and Campbell, addressing the Court, said, “I would
hope Your Honor would consider probation, house arrest,
community service, anything other than jail time.” (JA at 287.)
The government objected to that statement, based on the
plea agreement. Campbell’s attorney said, “[w]e stand by the
plea agreement[,]” and he claimed he had “not raised any issue
as to the guideline range[,]” but he again emphasized that the
District Court “has the right to make the decision as to what
sentence my client receives.” (JA at 288.) The District Court
8
responded by noting that “this is probably not the case” where
such comments are “appropriate[,]” but it let the defense
continue presenting testimony and argument. (JA at 288-89.)
When he continued, Campbell’s attorney asked Campbell why
the judge “should give [him] a break?” (JA at 289.) Campbell
responded that “jail will [have] a totally negative effect on
everything I have tried to do in recent years.” (JA at 289.)
Campbell went on to ask the Court to “grant [him] any
punishment, except for jail time[.]” (JA at 290.)
When Campbell and his attorney finished their
presentation, the government again objected, this time pointing
to defense counsel’s question about “a break” and Campbell’s
final plea for any sentence other than jail. (JA at 291-92.)
Without speaking further on the government’s objection, the
District Court sentenced Campbell to a term of imprisonment
of one year and a day, followed by three years of supervised
release, the time in prison being roughly a third of the time
called for by the sentencing range which Campbell had agreed
not to contest. In explaining the sentence, the District Court
noted the efforts Campbell had made to turn his life around
following earlier offenses and then observed that “the tenuous
and perhaps fragile hold a person, a former offender, has on
rehabilitation can be toppled … perhaps easily.” (JA at 300.)
C. Abdulrasheed Yusuf
In August 2017, Yusuf participated in a scheme to steal
money from accounts at various financial institutions. His co-
conspirators would impersonate account holders and withdraw
or transfer funds. Yusuf’s role was to pick up and deposit the
resulting checks in co-conspirators’ bank accounts using
fraudulent identification. When Yusuf was arrested, he had in
9
his possession the driver’s license of someone he intended to
impersonate, as well as the license of another individual whom
he had impersonated in the past.
Yusuf pled guilty to a two-count information charging
him, in Count 1, with conspiracy to commit wire fraud in
violation of 18 U.S.C. § 1349, and, in Count 2, with aggravated
identity theft in violation of 18 U.S.C. § 1028A(a)(1). The plea
agreement included a provision stating, “that neither [Yusuf
nor the U.S. Attorney’s Office] will argue for the imposition of
a sentence outside the Guidelines range that results from the
agreed total Guidelines offense level.” (JA at 333.) In
addition, “[t]he parties agree not to seek or argue for any
upward or downward departure, adjustment or variance not set
forth herein.” (JA at 334.) The U.S. Attorney’s office was also
careful to ensure that it reserved the right to respond to
questions from the court, correct misinformation provided to
the court, and provide the sentencing judge with all
information relevant to sentencing. The plea agreement further
recognized that, notwithstanding its provisions, the
“sentencing judge may impose any reasonable sentence” (JA
at 327) and that “[t]his agreement … cannot and does not bind
the sentencing judge, who may make independent factual
findings and may reject any or all of the stipulations entered
into by the parties.” (JA at 328.)
Yusuf ended up being sentenced twice, and, for reasons
not apparent in the record, he was sentenced by a different
judge than was his co-conspirator Temilade Adekunle, who
was charged with and convicted of the same crimes, based on
essentially the same conduct. At Yusuf’s first sentencing, the
District Court granted a downward variance, imposing a
sentence of three months on Count 1 (the wire fraud
10
conspiracy) and a mandatory 24 months on Count 2 (the
aggravated identity theft). United States v. Yusuf, 781 F. App’x
77, 79 (3d Cir. 2019). We vacated that sentence because the
District Court impermissibly considered the mandatory 24-
month sentence under Count 2 when calculating the
appropriate sentence on Count 1. Id. at 80-81. The case was
thus remanded for resentencing.
By the time Yusuf appeared for resentencing, his co-
conspirator Adekunle had already been sentenced to 26 months
for the same two crimes. At Yusuf’s resentencing, defense
counsel began by saying that he was “to some degree, governed
by the plea agreement in this matter, and the reasonableness of
the range per the plea agreement[,]” but he nevertheless went
on to say that the co-conspirator’s sentence “is something that
we can’t close our eyes to.” (JA at 427.) He said that Yusuf
and Adekunle were “involved in the same incident, culpable
for the same conduct, essentially” but that the government’s
recommended minimum sentence of 21 months for Count 1
was “ten times the amount of time” the co-defendant was
sentenced to. (JA at 429-30.) He also said that the time Yusuf
had already served – five months – was “two and a half times
more than the time that Mr. Adekunle got.” (JA at 429.) He
concluded that he “just [didn’t] see how we can all stand here
and say, well, that somehow is a way, you know, the way this
rolls out.” (JA at 430.)
The District Court responded that defense counsel’s
statement was “not only the one that most benefits your client,
but also one that makes perfect commonsense because we do
have … the anomaly of two low level folks who clearly are a
part, and the government has told me they are a part of” the
same conspiracy. (JA at 430.) She then asked the government
11
to provide more information about the conspiracy, which it did.
The government agreed that Adekunle had played a
comparable role in the conspiracy as had Yusuf, but it noted
that the difference between the two defendants was their
criminal history categories: Yusuf had a criminal history
category of three, and Adekunle had a criminal history
category of one. The District Court then noted some concern
that Adekunle’s sentence had been influenced by Yusuf’s
original sentence which had since been overturned.
When the Assistant U.S. Attorney was asked about the
proportionality of the sentences given to Adekunle and Yusuf,
he began by saying, “for the record … the government believes
defense counsel has clearly breached the plea. He is not
allowed to argue for a departure or a variance.” (JA at 438.)
The Court disagreed, saying, “He is arguing proportionality.
[Defense counsel] is way too smart to walk into that trap. He
is doing everything but. And I am almost forcing him to do it.
It is fair for him to argue proportionality . . . . [s]o I don’t find
he’s breached the agreement.” (JA at 439.)
The District Court then engaged in an extended
colloquy with Yusuf about his post-conviction conduct. While
in prison, Yusuf had participated in substance abuse classes,
including attending additional classes even after he received
his certificate of completion, and was more than two years
sober.
In imposing its sentence for Count 1, the District Court
began by noting that much of Yusuf’s criminal history was
driven by crimes related to alcohol abuse. She then departed
from the guidelines calculation in the presentence report and
the plea agreement by lowering Yusuf’s criminal history
12
category to two, with a total offense level of 14, resulting in a
sentencing range of 18 to 24 months. In addition to making
that adjustment, the District Court said, “I believe a variance is
warranted … based upon the post-conviction conduct that Mr.
Yusuf has described[.]” (JA at 465.) The District Court then
imposed a total sentence of 30 months – six months for Count
1, plus the mandatory 24 months on Count 2 – with six months
of home detention and three years of supervised release. The
government contemporaneously objected to the sentence on
several bases, including the District Court’s “determination
that defense counsel did not breach the plea agreement.” (JA
at 477.)
The government timely appealed both cases and asked
that they be consolidated.
II. DISCUSSION 4
A. Breach of Plea Agreements 5
According to the government, Campbell and Yusuf
breached their plea agreements by arguing for sentences that
were not within their respective guidelines ranges. Again,
central to this common issue are the provisions in the plea
4
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291.
5
When the question of whether a defendant breached a
plea agreement has been properly preserved for appeal, our
review is de novo. United States v. Williams, 510 F.3d 416,
424 (3d Cir. 2007).
13
agreements stating that the U.S. Attorney’s “Office and [the
defendant in each case] … agree that neither party will argue
for the imposition of a sentence outside the guidelines range
that results from the agreed total guidelines offense level” 6 (JA
at 199, 333), and that “[t]he parties agree not to seek or argue
for any upward or downward departure, adjustment or variance
not set forth herein.” (JA at 199, 332.)
Campbell argues that the statements on his behalf were
permissible because they simply encouraged the Court to apply
the § 3553(a) factors. He also points to his counsel’s statement
that “I have not raised any issue as to the guideline range.” (JA
at 288.) Yusuf similarly contends that his proportionality
argument was appropriate and that he was compelled to make
it to advocate for fairness in sentencing. In neither case do we
think the defendant-appellee’s arguments justify the statements
made at sentencing.
1. Legal Standard for Determining
Breach
Our decision here is guided by United States v.
Williams, a case in which we considered whether a defendant
had breached the provisions of a plea agreement nearly
identical to the ones before us now. 510 F.3d 416, 417-18 (3d
Cir. 2007). As a matter of first impression, Williams also
6
Again, sentencing ranges are a function of not only the
pertinent offense level but also of the defendant’s criminal
history ranking, and neither Campbell nor Yusuf disputed their
criminal history scores as calculated by the U.S. Probation
Office.
14
determined what standard should govern when deciding
whether a defendant has committed a breach. Id. at 417.
In Williams, the plea agreement stated that the U.S.
Attorney’s “Office and [the defendant] … agree that neither
party will argue for the imposition of a sentence outside the
Guidelines range that results from the agreed total Guidelines
offense level.” Id. at 418-19. Further, the parties agreed “not
to seek or argue for any upward or downward departure or any
upward or downward adjustment not set forth herein” and
agreed also that the guidelines range for the appropriate offense
level was reasonable. Id. at 419. At sentencing and in his
sentencing memorandum, defense counsel said that he did not
dispute the offense level, but he argued for a downward
departure in the criminal history category, as well as variances
under the § 3553(a) factors. Id. at 419-20. The government
appealed, arguing that the defendant had breached his plea
agreement. Defense counsel responded that, because the
sentencing guidelines are only advisory, “Booker requires the
Court to do a reasonableness analysis, when you consider those
things, you can depart even though we stipulated it.” Id. at 420.
In determining what standard should apply, we first
recognize the well-established rule that “plea agreements,
although arising in the criminal context, are analyzed under
contract law standards.” United States v. Erwin, 765 F.3d 219,
228 (3d Cir. 2014). That is so whether the government or the
defendant is the allegedly breaching party. Williams, 510 F.3d
at 424. In line with general principles of contract
interpretation, we typically construe ambiguities against the
government, given its customary role in drafting such
agreements. Id. at 422 (“[I]n ‘view of the government’s
tremendous bargaining power [courts] will strictly construe the
15
text against [the government] when it has drafted the
agreement.’” (quoting United States v. Floyd, 428 F.3d 513,
516 (3d Cir. 2005))).
We went on to emphasize in Williams, however, that “a
plea agreement necessarily ‘works both ways. Not only must
the government comply with its terms and conditions, but so
must [the defendant].’” Id. (quoting United States v. Carrara,
49 F.3d 105, 107 (3d Cir. 1995)). “[A] defendant should not
be permitted ‘to get the benefits of [his] plea bargain, while
evading the costs[,]’” we said. Id. (quoting United States v.
Bernard, 373 F.3d 339, 345 (3d Cir. 2004)). Considering the
needs of the criminal justice system generally, we observed
that failure to “enforce a plea agreement against a breaching
defendant … would have a corrosive effect on the plea
agreement process.” Id. Therefore, “[w]hen a defendant
stipulates to a point in a plea agreement, he ‘is not in a position
to make … arguments [to the contrary].’” Id. (quoting United
States v. Melendez¸ 55 F.3d 130, 136 (3d Cir. 1995)). Our
analysis led us to conclude that, “[t]he essential question [in a
breach analysis] is whether the alleged breaching party’s
conduct is consistent with the parties’ reasonable
understanding of the agreement.” Id. at 425 (internal quotation
marks and citation omitted). Applying that standard, we
determined that the defendant then before us had breached the
plea agreement, and so we remanded for resentencing in
accordance with the plea agreement. Id. at 428.
Our esteemed colleague Judge Joseph Weis dissented in
Williams. He acknowledged “that as a general matter a
defendant should not be permitted to renege on a valid and
clear sentencing stipulation and a plea agreement.” Id. (Weis,
J., dissenting). But he argued that, because the agreement in
16
Williams only specified the offense level and not the criminal
history category, the defendant had not breached the agreement
when his counsel argued for a departure based on the criminal
history category. Id. at 429-30. Particularly pertinent to issues
before us now, Judge Weis stated that defense counsel also did
not breach the agreement by arguing for a variance based on
the § 3553(a) factors, “because the District Court invited and
allowed the argument at the sentencing hearing.” Id. at 430.
He reasoned that “[t]o deny the sentencing judge the ability to
carry out his statutory duty and responsibility through consent
of the parties seems to undermine the sentencing procedure
Congress has mandated.” Id. at 432.
Both the majority and dissenting opinions in Williams
looked to earlier precedents that considered whether the
government had breached a plea agreement by statements it
made at sentencing. While each case required a fact-specific
inquiry, “the basic rules are clear.” United States v. Hodge,
412 F.3d 479, 485 (3d Cir. 2005). When the government is
alleged to have violated a plea agreement, we ask whether the
“conduct [at issue] is inconsistent with what was reasonably
understood by the defendant when entering the plea of guilty.”
United States v. Badaracco, 954 F.2d 928, 939 (3d Cir. 1992)
(citation omitted). Although “[t]he government need not
endorse the terms of its plea agreements ‘enthusiastically[,]’”
id. at 941 (citation omitted), “[t]he government must adhere
strictly to the terms of the bargains it strikes with
defendants[.]” Hodge, 412 F.3d at 485 (citation and internal
quotation marks omitted).
For example, in United States v. Badaracco, the
government assented in the plea agreement that, given the
defendant’s conduct, a potential two-point enhancement of the
17
offense level should not apply. 954 F.2d at 939. For that
enhancement to apply, the defendant would have had to take
significant affirmative steps to conceal his offense. Id. at 940.
At sentencing, the government said that, in reality, “there was
an affirmative step taken by [the defendant] indicating that he
was concealing something[.]” Id. at 939 (emphasis omitted).
We concluded that the government’s “remarks about
concealment were meant to serve as a possible basis for the
district court to ignore the stipulation in the plea agreement[,]”
and were therefore a breach of the plea agreement. Id. at 941.
Later, in United States v. Nolan-Cooper, when the
government made an argument in response to questions from
the district court, we considered whether it was a breach of the
plea agreement. 155 F.3d 221, 238 (3d Cir. 1998). The
government had agreed not to oppose the defendant’s request
for a three-level downward departure for acceptance of
responsibility. Id. Nevertheless, at the sentencing hearing
counsel for the government stated, “the Government does not
believe that the defendant gave complete information.” Id.Concluding that the government’s comments undermined the
defendant’s claim that she should receive the full offense-level
adjustment for acceptance of responsibility, we determined
that the government had violated the plea agreement. Id. We
expressly rejected the argument that our analysis should be
altered because the government’s comments were made in
response to a question from the district court. Id. “While such
questions may place the government in an uncomfortable
situation, it still must inform the court that it cannot answer the
question without breaching its plea agreement. Sometimes ‘the
better part of valor is discretion.’” Id. (quoting William
Shakespeare, Henry the Fourth Part I, act V, scene iv, line 12).
18
2. Whether Campbell Breached His Plea
Agreement
Here, the government argues that Campbell, like the
defendant in Williams, explicitly argued for a sentence below
the guidelines range in breach of his plea agreement. We
agree.
As noted by the District Court, defense counsel’s
advocacy would be “more appropriate in a case where a
variance is still provided for in the plea agreement and that’s
not a part of [Campbell’s] plea agreement.” (JA at 288
(emphasis added).) Paragraph 1 of Campbell’s plea agreement
states that the government and Campbell “agree that neither
party will argue for the imposition of a sentence outside the
Guidelines range that results from the agreed total Guidelines
offense level.” (JA at 199.) In addition, Paragraph 7 of the
agreement unambiguously prohibits Campbell from “seek[ing]
or argu[ing] for any upward or downward departure,
adjustment or variance not set forth herein.” (JA at 199.)
Despite that clear language, at sentencing Campbell
twice requested a sentence of no jail time, in response to
questions by his counsel. 7 (JA at 287 (stating “I would hope
7
The government further argues that Campbell
“exacerbated the breach” in his sentencing memorandum when
he reminded the District Court that it has discretion to look
beyond the guidelines, closing the memorandum by saying
“the only question left to answer is does one treat Steven
Campbell by the calculated Guideline formula or by an
appreciation of the person, he has become.” (Opening Br. at
19
Your Honor would consider probation, house arrest,
community service, anything other than jail time[,]” in
response to defense counsel’s question of what a just
punishment would be); JA at 290 (asking the Court to “grant
[him] any punishment, except for jail time”).) Those
sentencing requests were indisputably below the agreed-upon
guidelines range.
Campbell contends that he did not violate the plea
agreement because he simply encouraged the Court to apply
the § 3553(a) factors as permitted under Federal Rule of
Criminal Procedure 32(i) and did not raise any issue as to the
applicable guidelines range. That argument is wholly
unpersuasive. As we recognized in Williams:
nothing in the plea agreement prevented the
District Court from departing downwardly or
imposing a non-Guideline sentence on its own
accord. The plea agreement did not purport to
21; JA at 221-23.) The government also points to letters of
support attached to the memorandum advocating for leniency
in sentencing (some asking for a non-custodial sentence). But
the government raises these arguments for the first time on
appeal. (JA at 268 (failing to object to Campbell’s sentencing
memorandum in its subsequent memorandum, instead stating,
“[i]n accordance with the terms of the plea agreement,
Campbell has not sought a variance”).) Because Campbell’s
statements at sentencing, which the government did promptly
object to, breached the plea agreement, we need not determine
whether the government forfeited its arguments based on
Campbell’s presentence filings.
20
restrict the Court’s duty to consider the § 3553
factors. Rather, the agreement merely prohibited
[the defendant] from making arguments
regarding those issues. If [the defendant] wanted
to make a departure argument, it would have
been prudent to negotiate a different agreement
with the government.
Williams, 510 F.3d at 425-26.
Similarly, although courts must give both defense
counsel and the defendant an opportunity to speak before
imposing a sentence, we agree with the government that Rule
32(i) does not give defendants license to disavow their
obligations under a plea agreement. See United States v. Ward,
732 F.3d 175, 182 (3d Cir. 2013) (declaring that “the
defendant’s right of allocution is not unlimited”). To hold
otherwise would allow defendants to reclaim rights they
bargained away to minimize sentencing exposure. That
“would make the current system of plea agreements untenable
because it would render the concept of a binding agreement a
legal fiction[,]” Williams, 510 F.3d at 423, thereby
jeopardizing an “essential” and “highly desirable” component
of the administration of justice in criminal cases. Santobello v.
New York, 404 U.S. 257, 260-61 (1971). Campbell breached
his plea agreement and did so blatantly, to his own detriment.
3. Whether Yusuf Breached His Plea
Agreement
Yusuf’s case presents a much closer question, given its
unusual procedural history (a resentencing following the
sentencing of a co-conspirator for the same conduct in front of
21
a different district court judge) and the more nuanced argument
the defense presented to the District Court. The foundational
provisions of the plea agreement are, however, essentially the
same as in Campbell’s case. Paragraph 1 of Yusuf’s plea
agreement stated that the government and Yusuf “agree that
neither party will argue for the imposition of a sentence outside
the Guidelines range that results from the agreed total
Guidelines offense level.” (JA at 333.) In addition, Paragraph
12 of the plea agreement unambiguously prohibited Yusuf
from “seek[ing] or argu[ing] for any upward or downward
departure, adjustment or variance not set forth herein.” (JA at
334.)
Yusuf’s counsel acknowledged that he was bound by
the plea agreement, but he nevertheless indicated that imposing
the lowest guidelines sentence would be grossly
disproportionate to Yusuf’s co-conspirator’s sentence “from a
mathematical standpoint[.]” (JA at 429.) Specifically, defense
counsel said that “simple math tells you that [the lower end of
the guidelines range] is ten times, ten times the amount of time
that [Yusuf’s co-conspirator] got. I just don’t see how we can
all stand here and say, well, that somehow is a way, you know,
the way this rolls out.” (JA at 429-30.)
The unusual facts in Yusuf’s case implicate at least two
important procedural policies. First is the need for sentencing
courts to have all material facts. As the District Court
emphasized, Yusuf presented the “anomaly of two low level
folks who clearly are a part … of … a vast conspiracy[,]”
charged for the same crimes based on essentially the same
conduct but sentenced by different judges. (JA at 430.) Those
anomalous circumstances put the District Court and the
defense in a particularly difficult position, given the strictures
22
of the plea agreement. Had Yusuf and his co-conspirator both
been sentenced by the same judge, Yusuf may not have felt the
need to so plainly point out the proportionality problem posed
by his co-conspirator’s sentence, because the judge would
almost certainly have been aware of it.
While acknowledging that concern, the government
nevertheless cites Nolan-Cooper to argue that the plain
language of the bargained-for plea agreement must govern,
regardless of how uncomfortable a position that may leave a
party in when addressing the sentencing court. See Oral
Argument at 5:00-6:36, http://www.circ3.dcn/iptvmedia/19-
3472_19-3697_USAv.Yusuf_Campbell.mp3; Nolan-Cooper,
155 F.3d at 238. That argument, however, shortchanges the
statutory duty of district courts to consider proportionality in
sentencing under the § 3553(a) factors, a job they will be ill-
prepared to do if not made aware of all material facts.
Although Judge Weis’s view of the appeal in Williams did not
carry the day, we take to heart the wisdom of his observation
that we should avoid eliminating a key source of information
from sentencing judges and thereby impeding their ability to
carry out their statutory duties. Williams, 510 F.3d at 432
(Weis, J., dissenting) (“To deny the sentencing judge the
ability to carry out his statutory duty and responsibility through
consent of the parties seems to undermine the sentencing
procedure Congress has mandated.”).
Along the same lines, the duty to consider the § 3553(a)
factors includes a responsibility to take account of facts that
arise after a plea agreement has been struck. The government
essentially conceded the importance of after-arising facts when
it stipulated in Yusuf’s plea agreement that, “if this Office
obtains or receives additional evidence or information prior to
23
sentencing that it determines to be credible and to be materially
in conflict with any stipulation in the attached Schedule A, this
Office shall not be bound by any such stipulation.” (JA at 328.)
It is equally important to ensure that defendants are able to
notify the sentencing court of material after-arising facts, even
when bound by plea agreement provisions like the ones at issue
here.
The second policy we must bear in mind is the central
role that plea bargaining plays in our criminal justice system.
“Because a plea agreement is a bargained-for exchange, … we
reach the same conclusion when a defendant breaches a plea
agreement as we would reach if the government breached.”
Williams, 510 F.3d at 422 (citation omitted). To hold
otherwise would leave the government with no meaningful
recourse if it performed its side of the agreement but did not
receive the benefit of the deal in return, potentially leading to
a chilling effect on plea bargaining overall. Such a result
would be intolerable “because our criminal justice system
depends upon the plea agreement process.” Id. at 423 (citation
omitted).
With those considerations in mind, and consistent with
our precedent describing the government’s obligation in
similar situations, we hold that Yusuf did breach his plea
agreement. 8 Central to our decision is the fact that defense
8
Yusuf also argues that the same government
prosecutor did not object to similar statements made during co-
conspirator Adekunle’s sentencing hearing months earlier
(where the parties were bound by the same plea agreement
24
provisions). He references the following exchange from
Adekunle’s sentencing:
Defense Counsel: Another issue that the Court should
consider is the previous sentence to the co-defendant,
which was imposed by another judge, of 27 months. I
would urge the Court to consider that portionality [sic]
in sentencing –
The Court: Just to make a clear record, state the name
of the person and the nature of the sentence.
Defense Counsel: Yes, sir. It was Mr. Yusuf, and he
received a 27-month sentence …. I am constrained from
arguing a below guideline sentence. The lowest
guideline sentence under the six-month split sentence
would still be above Mr. Yusuf’s sentence….
The Government: So let’s just look at Count 1, and I
know defense counsel brought to your attention [i.e., the
sentence of Mr. Yusuf], as she should, and I’m going to
bring to your attention misuse of sentencing….
The Government: So, Your Honor, we have a situation
where, yes, I think Your Honor has to take Mr. Yusuf’s
sentencing into account to some degree, but Your Honor
has to also take into account all the other sentencings.
(JA at 368-74 (emphasis added).) While we are sympathetic
to Yusuf’s argument that the government’s position at
Adekunle’s sentencing emboldened him to raise his
25
counsel not only pointed out the existence of Adekunle’s lower
sentence but went on to suggest that the bottom of the
guidelines range was therefore too long a sentence for Yusuf.
Although we agree with the District Court that it would
be wrong to prevent Yusuf from bringing the fact of
Adekunle’s sentence to the District Court’s attention (see JA at
439), here Yusuf did more than merely present a fact. He went
on to affirmatively advocate for a sentence below the agreed
upon guidelines range. The distinction may be a fine one, but
it is important. Had Yusuf only informed the District Court of
Adekunle’s sentence and reminded the Court that he was
bound by the plea agreement, the Court may well have intuited
the argument that was left unsaid. Cf. Nolan-Cooper, 155 F.3d
at 238 (noting the prosecution’s obligation to “inform the court
that it cannot answer the question without breaching its plea
agreement”). But leaving it unsaid is the difference between
breaching and not breaching the agreement. 9 See Williams,
proportionality argument, we agree with the government that
the advocacy in Adekunle “differed quantitatively and
qualitatively” and therefore Yusuf had no reasonable basis to
rely on the government’s actions in Adekunle’s case.
(Appellant Supp. Ltr. at 1.) As the government points out,
Adekunle’s counsel twice pointed out that she was bound by
the terms of the plea agreement and limited her advocacy to
“bringing the necessary facts and circumstances to the Court’s
attention.” (JA at 378.)
9
Recognizing the delicate balance of interests at play in
these circumstances, we respectfully encourage our colleagues
on the district courts, whose responsibilities at sentencing are
26
510 F.3d at 422 (“[U]nder the law of this circuit, [a defendant]
cannot renege on his agreement. When a defendant stipulates
to a point in a plea agreement, he is not in a position to make .
. . arguments [to the contrary.]”) (citations and internal
quotation marks omitted).
4. Remedy for Breach
“When the government breaches a plea agreement, the
general rule is to remand the case to the district court for a
determination whether to grant specific performance or to
allow withdrawal of the plea.” Nolan-Cooper, 155 F.3d at 241.
That principle also applies when the defendant breaches the
plea agreement, and, in this case, specific performance means
resentencing. “[W]e have observed that ‘when the government
requests specific performance at the hands of a defendant’s
breach [of the plea agreement], ... resentencing under the terms
of the executed plea agreement might be the only appropriate
remedy.’” Erwin, 765 F.3d at 231 (quoting Williams, 510 F.3d
at 427-28).
“It is also the rule in this circuit that if specific
performance is the applicable remedy, the defendant must be
resentenced by a different district judge than the one who
presided over the now-vacated original sentence.” Nolan-
Cooper, 155 F.3d at 241. We hasten to reiterate that
“remanding to a different district court judge does not reflect
upon the District Judge’s prior decision” and that the remand
“is not attributable to any error by the sentencing judge.”
never easy, to be particularly mindful of the strictures on
counsel when plea agreement provisions like the ones here are
in place.
27
Williams, 510 F.3d at 428 (citation omitted). Rather, “[a]
sentencing judge could be influenced inadvertently by the
breaching party’s prior arguments when the case is remanded
for re-sentencing.” Id. Therefore, consistent with the
government’s request in these two cases, we remand to
different district court judges for resentencing. 10
B. Campbell’s Motion to Suppress 11
Campbell cross-appealed the denial of his motion to
suppress. He claims that the police officer unnecessarily
prolonged the traffic stop in violation of the Fourth
Amendment. 12 His argument fails.
10
Our concurring colleague has well expressed our
respect for the judges who imposed sentence in Campbell’s and
Yusuf’s cases. Since we are compelled to direct resentencing
by different judges, however, we note that there may be
efficiencies in sending Yusuf’s case to the same judge who
sentenced Yusuf’s co-conspirator, Adekunle.
11
We review the denial of a motion to suppress for clear
error as to the underlying facts, but exercise plenary review “as
to its legality in light of the court’s properly found facts.”
United States v. Donahue, 764 F.3d 293, 298 (3d Cir. 2014)
(quoting United States v. Crandell, 554 F.3d 79, 83 (3d Cir.
2009)).
12
To the extent Campbell may be asserting lack of
reasonable suspicion for the traffic stop, that argument also
fails. “A police officer who observes a violation of state traffic
laws may lawfully stop the car committing the violation.”
28
Campbell says that the officer impermissibly prolonged
the stop to continue an “eyeball search” while Campbell looked
for his registration and proof of insurance. He is correct that
any inquiries unrelated to the purpose of a traffic stop that
“measurably extend [its] duration” are unconstitutional,
Rodriguez v. United States, 575 U.S. 348, 355 (2015) (citation
omitted), but “ordinary inquiries incident to a traffic stop …
which serve the purpose of enforcing the traffic code” certainly
are constitutional, United States v. Green, 897 F.3d 173, 179-
80 (3d Cir. 2018) (quoting Illinois v. Caballes, 543 U.S. 405,
408 (2005)). “Typically such inquiries involve checking the
driver’s license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile’s
United States v. Thompson, 772 F.3d 752, 759 (3d Cir. 2014)
(citation omitted). That analysis is objective. Therefore, what
matters is not what is in the mind of the officer making the stop
but whether, given the particular circumstances, a reasonable
officer could articulate sound reasons for it. See Whren v.
United States, 517 U.S. 806, 812-13 (1996); see also Ashcroft
v. al-Kidd, 563 U.S. 731, 739 (2011) (Courts will “not look
behind an objectively reasonable traffic stop to determine
whether racial profiling or a desire to investigate other
potential crimes was the real motive.”) In Campbell’s case,
there is ample evidence that a reasonable officer could rely on
to articulate particularized reasons for the traffic stop. The
officer testified that he first ran Campbell’s plates because of a
license plate violation, and, after discovering the owner of the
vehicle had a suspended license, he verified that Campbell was
the driver before pulling him over. That testimony was
supported by camera footage documenting the stop.
29
registration and proof of insurance.” Rodriguez, 575 U.S. at
355. Officers should be reasonably diligent in performing
those tasks, and the Supreme Court has stated that the best
indication of whether an officer has been reasonably diligent is
by “noting what the officer actually did and how he did it[.]”
Id. at 357.
Here, the officer did not unnecessarily prolong the stop.
Approximately five minutes elapsed from the time the stop
commenced to when Campbell was arrested. Although the
officer suggested that Campbell look in the console again for
his insurance card, the search for the insurance card and
registration was a plainly valid reason to continue the stop.
Furthermore, there was nothing nefarious in the suggestion to
look in the console, as Campbell had not yet produced the
necessary documents and the console is a commonly used
storage compartment in vehicles. There was no error in the
District Court’s ruling that the officer did not unnecessarily
prolong the stop. 13
13
Campbell claims he was stopped because he is Black;
however, he has provided no basis to support an Equal
Protection claim. See Whren v. United States, 517 U.S. 806,
813 (1996) (“We of course agree with petitioners that the
Constitution prohibits selective enforcement of the law based
on considerations such as race. But the constitutional basis for
objecting to intentionally discriminatory application of laws is
the Equal Protection Clause, not the Fourth Amendment.
Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.”).
30
III. CONCLUSION
Because both defendants breached their plea
agreements, albeit to different degrees, we will vacate their
sentences and remand for resentencing. In addition, we will
affirm the denial of Campbell’s motion to suppress.
31
McKee, J. concurring
I join my colleagues’ thoughtful opinion in its entirety.
I write separately only to emphasize two concerns. First, as the
Majority Opinion explains, the fact that we are remanding to a
new judge for resentencing in no way reflects upon the two fine
judges who imposed the sentences in these cases. 1 Both are
thoughtful and experienced jurists with many years of
distinguished service to the bench and their communities.
However, as the Majority notes, our precedent requires that
whenever we remand for resentencing because a plea
agreement has been breached, a different judge must conduct
the resentencing. 2
Second, our holding should not be read as suggesting
that a sentencing judge cannot interact with a defendant, the
defendant’s family, or anyone else whom the judge may want
to hear from at sentencing to determine the appropriateness of
a particular sentence. Each of the judges on this panel have
been trial judges and we are well aware of how agonizingly
difficult it can be to impose a sentence in a criminal case.
Sentencing someone to a period of imprisonment impacts
families and communities as well as the defendant. In order
for judges to discharge their obligations to the defendant, to
victims of crime and to the community, it is imperative that
they be able to engage in a dialogue with a defendant and the
defendant’s family, as well as anyone else who may be able to
better inform the judge about a defendant or the circumstances
surrounding the offense of conviction. Such dialogue often
does much more than assist in deciding upon a sentence. The
discussion with a defendant is particularly important because it
may go a long way towards convincing the defendant that s/he
was heard and treated fairly. This, in turn, may well afford the
defendant some measure of the respect and decency necessary
to a successful return to the community at the completion of
the sentence.
Courts should not feel that they are between the
proverbial “rock and a hard place” by encouraging a defendant
to speak while remaining cognizant of the strictures imposed
1
See Maj. Op. at 25.
2
Id.by a plea agreement and our opinion today should not be
interpreted in that vein. What occurred here went beyond an
attorney affording the judge an opportunity to hear from a
client or facilitating a client’s right of allocution. The
proceedings here can best be described as “an invitation to
breach.” This is best demonstrated by the conduct of
Campbell’s attorney.
During the sentencing hearing, when asked whether he
had “anything further,” Campbell’s attorney replied: “Yeah.
I’ve got an argument to make.” 3 And argue he did. Although
counsel attempted to describe what was to follow as
Campbell’s right of allocution, 4 as my colleagues explain, it
was indeed an argument and it was a flagrant breach of the plea
agreement. 5 After Campbell addressed the court and informed
the judge about his background, expressed remorse, and gave
certain assurances about how he would conduct himself in the
future, his attorney asked: “How does giving you leniency
reflect upon the seriousness of your offense?” 6 This was, of
course, a not-so-veiled invitation to mitigate the §
3553(a)(2)(A) factor. 7
Nor did counsel stop there. Instead, he forged ahead
and asked his client to lend the court a helping hand by
suggesting an appropriate and just sentence. Counsel asked his
client: “What is a just punishment for your offense?” 8 Not
surprisingly, Campbell did not respond that it would be a
sentence consistent with the plea agreement. Rather, he asked
for a sentence that was totally inconsistent with the plea
agreement. He stated: “I would hope Your Honor would
consider probation, house arrest, community service, anything
3
JA at 279.
4
Id. (“[M]y client has got an allocution he’d like to make as
well as a statement he’d like to give to the Court.”).
5
See Maj. Op. at 20.
6
JA at 286.
7
18 U.S.C. § 3553(a)(2)(A) requires the court to consider
“the need for the sentence imposed-- (A) to reflect the
seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense.”
8
JA at 287.
2
other than jail time.” 9 He had, of course, agreed to plead guilty
in return for a sentence that would include incarceration. Thus,
while purporting to acknowledge the plea agreement, counsel
encouraged his client to ask the court for anything but the
agreed upon sentence.
Counsel then proceeded to pour more gild on the lily
just in case the court had somehow managed to miss his client’s
“ask.” He asked Campbell, “Why will giving leniency protect
the public from further crimes by you?” 10 Campbell then
assured the court that he had “learned [his] lesson” and would
be crime free “for the rest of [his] life.” 11 Undeterred by the
Government’s well-founded objection, counsel plowed still
deeper and asked the judge to give his client a break despite the
negotiated plea. Speaking through his client, counsel asked:
“Why should [the judge] give you a break?” 12
As the Majority notes, plea agreements “are analyzed
under contract law standards.” 13 The law has long taken this
approach even though negotiated plea agreements are indeed a
very strange breed of contract. Not only does the Government
have “tremendous bargaining power[;]” 14 it is also hard to
imagine another context in which the law enforces a “contract”
where one party knew s/he faced years of imprisonment (or
even execution in some cases) if s/he didn’t agree to the other
party’s terms.
Nevertheless, the law has traditionally applied contract
principles to plea agreements, and we thus require that parties
to a plea agreement not breach the terms of a negotiated plea.
Here, attorneys for both Yusuf and Campbell breached those
terms. Campbell’s attempt to provide the court with additional
information is a textbook example of verbal compliance
accompanied by the old “wink and a nod.” This certainly does
9
Id.10
Id. at 289.
11
Id.12
Id.13
Maj. Op. at 14 (citing United States v. Erwin, 765 F.3d 219,
228 (3d Cir. 2014) (internal quotation marks omitted)).
14
Id. (citing United States v. Floyd, 428 F.3d 513, 516 (3d
Cir. 2005) (internal quotation marks omitted)).
3
not mean that one who signs a plea agreement forfeits the right
of allocution and thereafter can make absolutely no statement
to the court. It does mean that counsel cannot orchestrate a
presentation that is clearly intended to shred a plea agreement
while purporting to merely inform the court and safeguard a
client’s right of allocution.
4