United States v. Brandon Tate , 845 F.3d 571 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4252
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON TATE,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00296-RJC-1)
Argued: October 28, 2016 Decided: January 11, 2017
Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit
Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Chief Judge Gregory and Judge Keenan joined.
ARGUED: Roderick Morris Wright, Jr., WRIGHT LAW FIRM OF
CHARLOTTE, PLLC, Charlotte, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Jill
Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
FLOYD, Circuit Judge:
Appellant Brandon Tate signed a plea agreement in which the
government agreed to seek a sentence at the lowest end of the
“applicable guideline range.” At sentencing, the government
recommended a sentence at the lowest end of the guideline range
found by the district court. Tate now argues that in doing so,
the government breached the plea agreement. Tate contends that
the government was actually obligated to recommend a sentence at
the lowest end of the correct guideline range, which, in his
view, was lower than the range found by the court. We disagree,
and hold that in this case, the phrase “applicable guideline
range” only obligated the government to recommend a sentence at
the lowest end of the guideline range found by the district
court. Because the government fulfilled this obligation, it did
not breach the plea agreement. Accordingly, we affirm.
I.
In a written plea agreement, Tate agreed to plead guilty to
possession with intent to distribute and distribution of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C)
(2012). The plea agreement stated that the government would
“seek a sentence at the lowest end of and either party may seek
a departure or variance from the ‘applicable guideline range.’
(U.S.S.G. § 5C1.1).” J.A. 74. Additionally, Tate agreed to
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waive all “rights to contest the conviction except for: (1)
claims of ineffective assistance of counsel or (2) prosecutorial
misconduct.” J.A. 77. Tate also agreed to waive “all rights
conferred by 18 U.S.C. § 3742 or otherwise to appeal whatever
sentence is imposed with the two exceptions set forth above.”
Id.A magistrate judge then held a hearing pursuant to Federal
Rule of Criminal Procedure 11. At the hearing, Tate consented
to plead guilty, and the magistrate judge established Tate’s
competence to plead guilty and his understanding of the terms of
his plea agreement.
A presentence report (PSR) and, later, a revised PSR were
then prepared. The revised PSR calculated a base offense level
of 24 under the Sentencing Guidelines. Tate then received a
three-level reduction for acceptance of responsibility, which
resulted in a total offense level of 21. The revised PSR then
assigned Tate seven criminal history points and calculated his
criminal history as Category IV. This criminal history category
and the total offense level of 21 resulted in a guideline range
of 57 to 71 months’ imprisonment.
Tate objected to the revised PSR’s assignment of three
criminal history points for his four 2004 North Carolina state
convictions for common law robbery, robbery with a dangerous
weapon, and attempted robbery with a dangerous weapon. Tate
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claimed that those convictions should not have been the basis
for additional points under the Guidelines because they were
part of a consolidated sentence. He argued that his guideline
range should have actually been 46 to 57 months’ imprisonment.
At sentencing in March 2015, the district court adopted the
magistrate judge’s finding that Tate’s guilty plea was knowingly
and voluntarily made, and found there was a factual basis to
support the entry of the plea. The district court overruled
Tate’s objections to the revised PSR’s assignment of criminal
history points, and adopted the revised PSR’s calculation of the
guideline range of 57 to 71 months’ imprisonment. The
government then recommended a sentence of 57 months, and stated
that it was doing so in compliance with the plea agreement. The
government also stated that Tate had been making good use of his
time in prison, and that this boded well for his future. The
district court then sentenced Tate to 57 months’ imprisonment.
Tate noted a timely appeal of his sentence, claiming that
the government’s sentencing recommendation breached the plea
agreement. The government then moved to dismiss the appeal,
arguing that the appeal waiver in Tate’s plea agreement bars
Tate’s claim.
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II.
The first issue, raised in the government’s motion to
dismiss, is whether Tate’s appeal waiver bars this claim. In
the appeal waiver, Tate waived all rights to appeal his
conviction and his sentence, except for claims of ineffective
assistance of counsel and prosecutorial misconduct.
Tate’s appeal waiver is generally valid. 1 However, “[a]
defendant’s waiver of appellate rights cannot foreclose an
argument that the government breached its obligations under the
plea agreement.” United States v. Dawson, 587 F.3d 640, 644 n.4
(4th Cir. 2006) (citing United States v. Cohen, 459 F.3d 490,
495 (4th Cir. 2006)). Here, Tate argues that the government
breached the plea agreement. This Court may review that claim;
it is not barred by the appeal waiver.
1A criminal defendant may waive the right to appeal if that
waiver is knowing and voluntary. United States v. Davis, 689
F.3d 349, 354 (4th Cir. 2012) (per curiam). “Generally, if a
district court questions a defendant regarding the waiver of
appellate rights during the Rule 11 colloquy and the record
indicates that the defendant understood the full significance of
the waiver, the waiver is valid.” United States v. Thornsbury,
670 F.3d 532, 537 (4th Cir. 2012). Here, Tate confirmed at his
Rule 11 hearing that he agreed with the appeal waiver and
understood that he was waiving his right to appeal his
conviction and sentence. His waiver is therefore valid.
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III.
We now turn to the main issue in this case: whether or not
the government breached the plea agreement. In the plea
agreement, the government agreed to seek a sentence at the
lowest end of the “applicable guideline range.” The government
contends that this provision obligated it to recommend a
sentence at the lowest end of the guideline range found by the
district court. Tate argues that the government was not
permitted to rely on the range found by the district court, but
was instead obligated to recommend an even lower sentence, based
on what he alleges is the correct guideline range.
Because Tate did not raise this issue below, we review his
claim for plain error. Fed. R. Crim. P. 52(b); Puckett v.
United States, 556 U.S. 129, 135 (2009). Plain error analysis
has four prongs: (1) there must be an error; (2) the error must
be plain; (3) the appellant’s “substantial rights” must be
affected by the error; and (4) the error must seriously affect
“the fairness, integrity or public reputation of judicial
proceedings.” Puckett, 556 U.S. at 135 (internal quotation mark
omitted). To prevail, Tate would need to prove all four prongs;
however, Tate’s appeal fails on the first prong, error.
Tate alleges that the government breached the plea
agreement. Plea agreements are grounded in contract law, and
both parties to a plea agreement should receive the benefit of
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their bargain. Dawson, 587 F.3d at 645. The government
breaches a plea agreement when a promise it made to induce the
plea goes unfulfilled. Santobello v. New York, 404 U.S. 257,
262 (1971). However, “[a] central tenet of contract law is that
no party is obligated to provide more than is specified in the
agreement itself. Accordingly, in enforcing plea agreements,
the government is held only to those promises that it actually
made to the defendant.” United States v. Peglera, 33 F.3d 412,
413 (4th Cir. 1994).
In determining what promises the government made, we read
“a plea agreement’s plain language in its ordinary sense.”
United States v. Jordan, 509 F.3d 191, 195 (4th Cir. 2007)
(internal quotation marks omitted). Moreover, any ambiguities
in a plea agreement are construed against the government as its
drafter. United States v. Barefoot, 754 F.3d 226, 246 (4th Cir.
2014). Whether a plea agreement is ambiguous on its face is a
question of law to be resolved by the courts, Jordan, 509 F.3d
at 195, and we will not create an ambiguity where none
legitimately exists.
In determining whether the government breached the plea
agreement in this case, we will assume arguendo that the lower
guideline range proposed by Tate of 46 to 57 months was the
correct guideline range, and that the range found by the
district court was incorrect. Notably, Tate has waived his
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right to appeal the court’s guideline range determination. The
only question here is what the government was required to do
under the plea agreement. The plea agreement stated that the
government would seek a sentence at the lowest end of the
“applicable guideline range.” We hold that the “applicable
guideline range” means the guideline range found by the district
court, and that, therefore, the government’s sentencing
recommendation complied with the plea agreement. 2
A.
First, the natural reading of the phrase “applicable
guideline range” is the guideline range found by the district
court, because it is clearly the district court that is assigned
the task of determining the “applicable guideline range.” The
Supreme Court has consistently held that sentencing in federal
district courts is to proceed as follows: First, the district
court must determine “the applicable [g]uidelines range.”
Molina-Martinez v. United States, 136 S. Ct. 1338, 1342 (2016);
see also Peugh v. United States, 133 S. Ct. 2072, 2080 (2013);
2 This holding should not be read to preclude claims of bad
faith or prosecutorial misconduct. No such claims have been
made in this case.
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Gall v. United States, 552 U.S. 38, 49 (2007). 3 Next, once the
district court determines this range, the government and the
defendant present their arguments regarding what the sentence
should be. Peugh, 133 S. Ct. at 2080. The court considers
these arguments, along with the factors set forth in 18 U.S.C. §
3553(a). Id. Then, the court determines the defendant’s
sentence, and states its reasons for this sentence on the
record. Id.In the process described above, it is plainly the task of
the district court to determine the “applicable guideline
range,” and it is this range that forms the basis of the rest of
the sentencing hearing. See Gall, 552 U.S. at 49 (“[T]he
Guidelines should be the starting point and the initial
benchmark.”) Thus, in the context of a federal sentencing
proceeding, where the district court first determines the
“applicable guideline range” and the government then has an
opportunity to make a sentencing recommendation, it is clear
that a promise by the government to recommend a sentence at the
lowest end of the “applicable guideline range” is a promise to
3In all three cited cases, the Court has used the specific
phrase “applicable [g]uidelines range” to describe the range
determined by the district court. Molina-Martinez, 136 S. Ct.
at 1342; Peugh, 133 S. Ct. at 2080; Gall, 552 U.S. at 49.
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recommend a sentence at the lowest end of the range found by the
court.
Additionally, the Guidelines themselves state “[t]he court
shall determine the kinds of sentence and the guideline range as
set forth in the guidelines,” and instruct that the court does
so in accordance with U.S.S.G. 1B1.2, which is entitled
“Applicable Guidelines.” U.S.S.G. 1B1.1(a)(1). The Guidelines
as a whole are written as instructions to the court on how to
determine the applicable guideline range. It is clear that it
is the district court, and no other entity, that traditionally
determines the “applicable guideline range.”
Based on the above, we hold that the phrase “applicable
guideline range,” as used in the plea agreement here,
unambiguously refers to the guideline range found by the
district court.
B.
Second, although this Court has not dealt with this exact
issue before, it has previously considered similar arguments
made by criminal defendants claiming that the imposition of
incorrect sentences rendered their appeal waivers invalid. See
United States v. Brown, 232 F.3d 399, 404 (4th Cir. 2000);
United States v. Bowden, 975 F.2d 1080, 1081 n.1 (4th Cir.
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1992). These cases support the above interpretation of
“applicable guideline range.”
In Bowden, this Court was presented with an appeal waiver
that read, “By this agreement Defendant waives any appeal and
the right to exercise any post-conviction rights . . . if the
sentence imposed herein is within the [Sentencing Guidelines.]”
975 F.2d at 1081 n.1 (emphasis added). In that case, we held
that the waiver preserved the defendant’s right to challenge his
sentence as being outside of the Guidelines, because the waiver
was expressly conditioned on the sentence being within the
Guidelines. Id.In contrast, in Brown, the defendant had signed a plea
agreement with a waiver of all rights to appeal his sentence;
however, a different part of the plea agreement stated that
“[t]he Defendant understands . . . [t]hat sentencing will be in
accordance with the United States Sentencing Guidelines.” 232
F.3d at 404 (alterations in original). There, this Court held
that the defendant had waived all rights to contest his
sentence, and that the other statement that his sentence would
be “in accordance with” the Guidelines did not qualify or change
this unconditional waiver. Id. We explained:
A common sense reading of [the relevant provision]
indicates that its purpose is merely to inform Brown
that his sentence will be calculated using the
Sentencing Guidelines. The paragraph does not, in any
way, condition the waiver of Brown's right to appeal
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on a proper application of the Guidelines, as the plea
in Bowden did.
Id.Although Bowden and Brown address the validity of appeal
waivers, rather than the government-breach argument presented
here, they are still instructive. Read together, these cases
indicate that a provision in a plea agreement that is explicitly
conditioned on a correct sentence under the Guidelines will be
honored, but a mere reference to the Guidelines is not
sufficient to create such a condition. The provision at issue
here falls into the latter category. Moreover, Brown counsels
that common sense should be used when interpreting such
provisions. Here, when the process and structure of sentencing
are taken into account, common sense dictates that “applicable
guideline range” signifies the range found by the district
court.
C.
Third and finally, Tate’s proposed interpretation of the
plea agreement is logically untenable. Tate contends that the
term “applicable guideline range” should be read to mean the
correct guideline range--which in this case we assume to be 46
to 57 months. Tate is thus arguing that the only way the
government could have complied with the plea agreement would
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have been through a recommendation of a 46 month sentence.
Under Tate’s view, any other recommendation violates the plea
agreement. However, although it was entirely possible for
Tate’s attorney to calculate the guideline range and propose
that the specific figure of 46 months be included in the
agreement when it was made, the agreement does not say 46
months. No specific number of months is included. Rather, the
agreement uses only the indeterminate phrase, “the lowest end of
. . . the ‘applicable guideline range.’”
The fact that the two parties did not specify a number of
months in the agreement, even though it was completely possible
for them to do so, and instead merely agreed to the lowest end
of a yet-to-be-determined “range,” manifestly implies that they
anticipated that a third party (i.e., the district court) was
going to determine that range. If the two parties had actually
agreed to 46 months, there is no conceivable reason why they
would forego memorializing this agreement, and instead opt for
the indeterminate “the lowest end of . . . the ‘applicable
guideline range’” language contained in the plea agreement. It
is well established that the government is not “obligated to
provide more than is specified in the agreement itself.”
Peglera, 33 F.3d at 413. Tate’s interpretation of the plea
agreement would violate this rule.
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IV.
At bottom, Tate’s true grievance is with the district
court’s application of the Guidelines in determining the
guideline range. However, Tate has waived the right to present
this issue on appeal. He cannot now convert this claim of
sentencing error into a claim of breach by the government when
the government has complied fully with the terms of the plea
agreement.
As used in the plea agreement here, the phrase “applicable
guideline range” unambiguously means the guideline range
determined by the district court. The government complied with
the plea agreement when it made its sentencing recommendation
based on the district court’s guideline range calculation.
Therefore, an error did not occur, and the plain error standard
has not been met. Accordingly, the judgment below is
AFFIRMED.
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