United States v. Cannel ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30590
Plaintiff-Appellee,
v.  D.C. No.
CR-05-02059-EFS
JAMES N. CANNEL,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
December 4, 2007—Seattle, Washington
Filed March 3, 2008
Before: M. Margaret McKeown and Richard R. Clifton,
Circuit Judges, and William W Schwarzer,* District Judge.
Opinion by Judge Schwarzer;
Concurrence by Judge Clifton
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
1909
1912 UNITED STATES v. CANNEL
COUNSEL
Tracy A. Staab, Research and Writing Attorney, Federal
Defenders of Eastern Washington & Idaho, Spokane, Wash-
ington, for the defendant-appellant.
K. Jill Bolton, Assistant United States Attorney, United States
Attorney’s Office, Spokane, Washington, for the plaintiff-
appellee.
OPINION
SCHWARZER, Senior District Judge:
James N. Cannel appeals the sentence of 72 months’
imprisonment for possession of child pornography, in viola-
tion of 18 U.S.C. § 2252A(a)(5)(B). On this appeal, Cannel
UNITED STATES v. CANNEL 1913
contends for the first time that the government breached the
plea agreement. We review for plain error and find that the
government did not breach the plea agreement with Cannel.
We therefore affirm the sentence.
FACTUAL AND PROCEDURAL HISTORY
In January 2005, Cannel began chatting online under the
username “surching” with a Seattle Police Department detec-
tive, who was posing as a twelve-year-old boy under the user-
name “tim_12_seattle.” In February 2005, Cannel asked
“tim_12_seattle” for a picture of himself, sent pictures of his
genitalia, and suggested that they meet for a sexual encounter.
Detectives traced the IP address used by “surching” to Can-
nel. When interviewed by law enforcement, Cannel admitted
that he used the screen name “surching,” sent pictures of his
genitalia, and possessed 100 to 500 images of child pornogra-
phy. Cannel also admitted that he traded images of child por-
nography with others in on-line chat rooms.
On April 12, 2006, Cannel pleaded guilty to possession of
child pornography in violation of 18 U.S.C. § 2252A(a)
(5)(B), pursuant to a written plea agreement. The agreement
stipulated substantially as follows:
• a base offense level of 18;
• a two-level increase for material involving a pre-
pubescent minor or a minor who had not attained
the age of 12 years;
• a four-level increase for portrayal of sadistic or
masochistic conduct or other depictions of vio-
lence;
• a two-level increase for an offense involving the
use of a computer;
1914 UNITED STATES v. CANNEL
• a two-level increase for an offense involving at
least ten images, but fewer than 150 images;
• a three-level downward adjustment for accep-
tance of responsibility, pursuant to U.S.S.G.
§ 3E1.1(a) and (b) and upon motion of the gov-
ernment, if Cannel pleaded guilty and accepted
personal responsibility for the criminal conduct,
and provided accurate information during the
sentencing process;
• a final adjusted offense level of 25; and
• the government would not seek an upward depar-
ture from the applicable sentencing guideline
range, but could seek any sentence within the
applicable sentencing guideline range.
The plea agreement also stipulated that neither party was pre-
cluded from “presenting and arguing, for sentencing purposes,
additional facts which are relevant to the guideline computa-
tion or sentencing,” unless otherwise prohibited by the agree-
ment.
On June 1, 2006, the United States Probation Office sub-
mitted its Presentence Investigation Report (“PSR”), which
recommended an adjusted offense level of 33, minus three
levels for acceptance of responsibility. This resulted in a final
adjusted offense level of 30 and an advisory sentencing range
of 97 to 121 months. The PSR calculation included two
enhancements that were not in the plea agreement: (1) a two-
level enhancement for distribution, based on a shared folder
on Cannel’s computer containing a video clip and a still
image available for downloading on a peer-to-peer file shar-
ing program; and (2) a five-level enhancement for an offense
involving 600 or more images, based on the nineteen video
clips found on Cannel’s computer. Pursuant to Application
Note 4(B)(ii) to U.S.S.G. § 2G2.2, each video clip was
UNITED STATES v. CANNEL 1915
counted as the equivalent of seventy-five images, for a total
of 1,425 images.
On July 26, 2006, Cannel filed a Sentencing Memorandum.
In it, he objected to the PSR’s proposed two-level enhance-
ment for distribution on the ground that it was not part of the
plea agreement. He also argued that there was “insufficient
evidence to support this enhancement” because placing the
images in a shared folder was not the same as posting material
on a website for public viewing, as suggested in the PSR.
With respect to the five-level enhancement for the 1,425
images, Cannel argued that it should not apply because the
parties had agreed that the number of images for sentencing
purposes would be more than ten but less than 150. In support
of his request for a sentence of 12 months and one day, Can-
nel submitted an evaluation by a clinical psychologist. This
evaluation recounted Cannel’s assertion that his discussions
with “tim_12_seattle” were merely part of a fantasy with no
relationship to reality.
On August 2, 2006, the government filed a Notice of
Review of Presentence Investigation Report and Sentencing
Memorandum. The government stood by its recommendations
in the plea agreement and did not adopt the PSR’s additional
enhancements, but opposed a three-level reduction for accep-
tance of responsibility “[i]n light of the representations made
by [Cannel] in his sentencing memorandum, including his
contention that he did not distribute child pornography and his
contention that his on-line chats were merely fantasy.” The
government pointed out that Cannel had admitted that he dis-
tributed child pornography through Internet chat rooms, and
concluded that Cannel had “failed to provide complete and
accurate information during the sentencing process, as
required for the Government’s recommendation for reduction
in offense level for acceptance of responsibility.”
With respect to Cannel’s objection to the five-level
enhancement for the number of images, the government
1916 UNITED STATES v. CANNEL
acknowledged that in agreeing on a two-level enhancement,
the parties erroneously disregarded Application Note 4(B)(ii).
The government urged the court to overrule Cannel’s objec-
tion because contrary to Cannel’s argument that most of the
video clips were very short in duration, the video clips aver-
aged five minutes in length. The government, however, also
stated that it was standing by its plea agreement recommenda-
tions in order to avoid a breach, and that the court should sim-
ply consider the number of images as a factor supporting a
sentence “at the high end of the guideline range.” The govern-
ment recommended an offense level of 28, which excluded
the three-level acceptance of responsibility adjustment
reflected in the offense level of 25 originally called for by the
plea agreement. The government therefore requested a sen-
tence of 97 months, at the top of the 78 to 97-month sentenc-
ing range called for by an offense level of 28.
At the sentencing hearing on October 18, 2006, Cannel
objected to the PSR’s enhancement for distribution, and to the
PSR’s five-level enhancement for an offense involving 600 or
more images. The court overruled the objections, noting that
Cannel had admitted to police officers that he had distributed
child pornography in Internet chat rooms, and finding that the
PSR had correctly calculated the number of images involved.
Cannel did not argue that the government had breached the
plea agreement. The government recommended a sentencing
range of 78 to 97 months, which reflected the enhancements
specified in the plea agreement but did not include the down-
ward adjustment of three levels for acceptance of responsibil-
ity. The government referred the court to its sentencing
memorandum, in which it recommended a sentence of 97
months.
The district court accepted the PSR’s offense level of 33
and it subtracted two levels for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(a). Consistent with its position
that Cannel had not been truthful, the government declined to
move for the additional one-level acceptance of responsibility
UNITED STATES v. CANNEL 1917
adjustment under U.S.S.G. § 3E1.1(b). This resulted in an
advisory guideline range of 108 to 135 months. Noting that
the sentence would amount to nine years in prison, the court
observed this to be “far more than necessary to adequately
punish [Cannel]” and imposed a sentence of 72 months, with
three years of supervised release and special conditions. This
timely appeal followed.
DISCUSSION
I. Standard of Review
We would normally review Cannel’s claim that the govern-
ment breached his plea agreement de novo. See United States
v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000) (applying
de novo review when facts were not in dispute and “the only
issue [was] whether the prosecutor’s statements as a matter of
law constituted a [violation of the plea agreement]). Cannel,
however, did not preserve this issue for appeal, having failed
to claim a breach of the plea agreement by the government at
the sentencing hearing. United States v. Flores-Payon, 942
F.2d 556, 558 (9th Cir. 1991) (“Issues not presented to the
trial court cannot generally be raised for the first time on
appeal.”). His objection to the PSR in his Sentencing Memo-
randum and at the sentencing hearing on the ground that it
conflicted with the plea agreement is not sufficient to preserve
the issue of a breach of the plea agreement. United States v.
Maldonado, 215 F.3d 1046, 1051 (9th Cir. 2000) (pointing
out discrepancy between PSR and plea agreement does not
constitute a claim that the government breached the plea
agreement). Cannel’s objections at the sentencing hearing
were directed at persuading the court that the enhancements
for distribution and for a larger number of images were incon-
sistent with the plea agreement, not that the government had
breached the plea agreement.
Although Cannel forfeited his claim that the plea agreement
was breached, we may review that claim for plain error.
1918 UNITED STATES v. CANNEL
Flores-Payon, 942 F.2d at 558; Maldonado, 215 F.3d at 1051.
Relief for plain error is available if there has been (1) error;
(2) that was plain; (3) that affected substantial rights; and (4)
that seriously affected the fairness, integrity, or public reputa-
tion of the judicial proceedings. United States v. Recio, 371
F.3d 1093, 1100 (9th Cir. 2004) (citing United States v.
Olano, 507 U.S. 725, 732-35 (1993)).
II. Breach of the Plea Agreement
Plea agreements are contracts and are enforced as such. The
defendant relinquishes his constitutional right to a trial by
entering into a plea agreement, and “[t]he integrity of our
judicial system requires that the government strictly comply
with its obligations under a plea agreement.” United States v.
Allen, 434 F.3d 1166, 1174 (9th Cir. 2006) (quoting Mondra-
gon, 228 F.3d at 981).
Cannel contends that the government breached his plea
agreement by: (1) recommending against a three-level adjust-
ment for acceptance of responsibility and volunteering addi-
tional evidence in support of an enhancement for distribution;
and (2) supporting a five-level enhancement for the number
of images.
A. Acceptance of Responsibility
[1] The plea agreement provided that the government
would move for a three-level downward adjustment for accep-
tance of responsibility if Cannel “demonstrates a recognition
and an affirmative acceptance of personal responsibility . . .
[and] provides complete and accurate information during the
sentencing process.” Although Cannel had previously admit-
ted that he had distributed pornographic images, he opposed
the PSR’s recommended distribution enhancement by arguing
that there was insufficient evidence to support the enhance-
ment. Cannel stated in his sentencing memorandum that the
materials in the shared folder relied upon by the PSR had not
UNITED STATES v. CANNEL 1919
been available for downloading by the public and had in fact
not been downloaded.
[2] Under the plea agreement, each party was entitled to
present and argue additional facts relevant to sentencing. The
government did not advocate an enhancement for distribution
or present evidence in order to support such an enhancement.
However, in response to what it viewed as Cannel’s effective
repudiation of his prior admissions, the government did high-
light evidence already presented in the PSR of repeated
instances in which Cannel had admitted to distributing porno-
graphic images over the Internet. This evidence was relevant
to sentencing: its purpose was to show why the government
believed that Cannel had not been accurate in his representa-
tions to the court and had not demonstrated affirmative accep-
tance of personal responsibility and thus did not meet the plea
agreement’s conditions for an acceptance of responsibility
adjustment. Cf. United States v. Johnson, 187 F.3d 1129,
1135 (9th Cir. 1999) (finding that the government made a rec-
ommendation concerning the sentence in violation of the plea
agreement when it introduced a victim impact statement that
had “nothing to do with the crime” to which the defendant
pleaded guilty). Because the government was obligated to
move for the reduction only if Cannel met the specified condi-
tions, and because there is no suggestion that it acted based
on unconstitutional or arbitrary motives,1 the government did
not breach the plea agreement by not recommending an
adjustment for acceptance of responsibility, or by explaining
to the court why it would not make such a recommendation.
1
See, e.g., United States v. Espinoza-Cano, 456 F.3d 1126, 1128 (9th
Cir. 2006) (holding that the government’s decision not to move for an
acceptance of responsibility adjustment under U.S.S.G. § 3E1.1(b) cannot
be based on “an unconstitutional motive or for reasons not rationally
related to a legitimate government interest”).
1920 UNITED STATES v. CANNEL
B. Enhancement for Number of Images
[3] Cannel contends that the government also breached the
plea agreement by volunteering that the number of images
had been incorrectly calculated, and by advocating the five-
level enhancement. Cannel inaccurately characterizes the gov-
ernment’s actions. In its sentencing memorandum the govern-
ment acknowledged that, as suggested by the PSR’s
sentencing calculation, the parties had erroneously disre-
garded Application Note 4(B)(ii), which would have brought
the total number of images to over 600 and resulted in an
enhancement of five levels, rather than two levels. The gov-
ernment agreed that the PSR accurately assessed the number
of images but added that “in order to avoid a breach of the
plea agreement, the Government stands by its original plea
agreement recommendation” with respect to the enhancement
for the number of images involved in the offense. Although
the government urged the court to overrule Cannel’s objection
to the five-level enhancement because the objection was not
supported by the facts or the relevant application note, the
government only invoked the facts behind the five-level
enhancement in support of its argument that the court should
give a sentence at the high end of the sentencing range recom-
mended by the government. The government’s sentencing
memorandum presented a final adjusted offense level of 28.
That number reflected all of the upward adjustments in the
plea agreement (including a two-level, rather than five-level,
enhancement for the number of images), but excluded the
downward adjustment for acceptance of responsibility (for the
reasons discussed above).
[4] Thus the government’s final sentencing recommenda-
tion was consistent with the plea agreement, which permitted
the government to withhold a recommendation for an adjust-
ment for acceptance of responsibility if Cannel did not com-
ply with the specified conditions. The plea agreement,
moreover, permitted the government to seek any sentence
within the applicable guideline range; the government recom-
UNITED STATES v. CANNEL 1921
mended a sentence of 97 months, which was at the top of the
78 to 97-month sentencing range dictated by the offense level
of 28.
AFFIRMED.
CLIFTON, Circuit Judge, concurring in the judgment:
I agree with my colleagues that the sentence should be
affirmed, but I reach that result via a different route. Specifi-
cally, I disagree with the conclusion that the government did
not breach the plea agreement in this case. I conclude that the
government did breach the agreement. Because I do not
believe that the sentence imposed by the district court was
affected in any way by that breach, however, I agree that the
sentence should be affirmed.
I. Breach of the Plea Agreement
The government promised in the plea agreement to move
for a three-level decrease for acceptance of responsibility. The
recommendation contained in the Presentencing Report
(“PSR”) prepared by the probation officer included that three-
level reduction for acceptance of responsibility. When it came
time for sentencing, though, the government opposed that
reduction and declined to move for the third of the three
levels of reduction, which it had sole power to do under
U.S.S.G. § 3E1.1(b). It justified its action by pointing to Can-
nel’s submission to the court regarding sentencing, “including
his contention that he did not distribute child pornography and
his contention that his on-line chats were merely fantasy.”
The government viewed those positions as contradicting
acceptance of responsibility for his crime.
I do not believe that the government’s position was correct,
so I conclude that its failure to honor the plea agreement con-
1922 UNITED STATES v. CANNEL
stituted a breach of that agreement. Cannel did not disclaim
responsibility for his crime. Notably, nowhere in his sentenc-
ing memorandum did Cannel deny that he had distributed
child pornography. He simply denied that he distributed por-
nography in one manner stated in the PSR.
The PSR recommended a two-level distribution enhance-
ment on the ground that Cannel had a video and a graphic
image “available for downloading” in the shared folder of a
peer-to-peer file sharing program. Cannel argued in his sen-
tencing memorandum that “there is insufficient evidence to
support this enhancement.” He argued that the fact that the
files were present in his shared folder did not mean that the
files were “post[ed] . . . for public viewing” as required by
U.S.S.G. § 2G2.2(b)(3)(F), cmt. n.1. He also argued that there
was no evidence that anybody actually downloaded the files
from his folder. Cannel did not deny that he had distributed
child pornography in other ways, nor did he deny that he
“traded pictures with others in chat rooms,” as he had previ-
ously admitted. He simply advanced the legal argument that
the basis articulated in the PSR was insufficient to support the
recommended enhancement for distribution. That was a legal
argument, made not by Cannel himself but by his defense
attorney, and that attorney made this distinction clear to the
trial court during the sentencing hearing. The legal arguments
contained in the sentencing memorandum do not amount to a
repudiation of Cannel’s admission that, as a factual matter, he
had distributed child pornography, nor do they contradict his
acceptance of responsibility for that offense.
Cannel did not deny responsibility for his crime by assert-
ing that his discussions with “tim_12_seattle” were mere fan-
tasy, or by submitting an evaluation by a clinical psychologist
recounting that assertion. Cannel did not deny that he had
possessed or distributed child pornography. The argument
behind his assertion is simply that his conduct would not have
led to an in-person encounter or caused any physical harm,
UNITED STATES v. CANNEL 1923
factors which could have affected the district court’s determi-
nation of an appropriate sentence.
I believe it is significant that despite the government’s
arguments, the district court did not conclude that Cannel in
fact failed to accept responsibility. Instead, it overruled the
government’s objection to the reduction. That contradicts the
current claim by the government — and the conclusion of the
majority opinion — that the positions taken by Cannel justi-
fied the government’s failure to honor the plea agreement.
Because Cannel did not deny responsibility or provide incom-
plete or inaccurate information in violation of the plea agree-
ment, he did not relieve the government of its obligation to
seek a three-level decrease for acceptance of responsibility.
Accordingly, I conclude that the government breached the
plea agreement by failing to do so.
II. Prejudice
Because Cannel did not preserve his breach argument by
objecting to the district court, I agree with the majority opin-
ion that we review for plain error, under which it is Cannel’s
burden to establish prejudice. See United States v. Mal-
donado, 215 F.3d 1046, 1051 (9th Cir. 2000) (“A plain error
is a highly prejudicial error affecting substantial rights.”)
(citations omitted); United States v. Campbell, 42 F.3d 1199,
1204 (9th Cir. 1994) (“Plain error is error that is clear under
the law and that affects substantial rights. [The defendant] has
the burden to establish that the error was prejudicial.”);
accord United States v. Puckett, 505 F.3d 377 (5th Cir. 2007)
(affirming on plain error review where government admitted
that it had breached plea agreement but defendant could not
show prejudice).
Cannel cannot show prejudice because the government’s
breach of the plea agreement did not increase the sentence
imposed. The district court overruled the government’s objec-
tion to the two-level reduction for acceptance of responsibil-
1924 UNITED STATES v. CANNEL
ity. Without a motion by the government, the court did not
have the power to reduce by a third level based on acceptance
of responsibility, so it can be assumed that if the government
had not breached, Cannel’s base offense level would have
been 30 rather than 31. Based on that calculation and his
criminal history category, Cannel’s advisory guidelines range
would have been 97 to 121 months rather than 108 to 135
months.
In the end, though, the district court imposed a sentence of
72 months, far below the low end of either of these guidelines
ranges. This strongly supports the inference that the district
court did not key off the bottom of the advisory range but
rather calculated the appropriate sentence independently, as it
is empowered to do. To the extent that acceptance of respon-
sibility played a role in the court’s determination, the court
was obviously aware of its disagreement with the govern-
ment’s position that Cannel had repudiated his acceptance, so
it must be assumed that the court took that into account.
Accordingly, Cannel has not shown that the government’s
breach prejudiced him, and his sentence should be affirmed.