United States v. Pitt

United States Court of Appeals
For the First Circuit
No. 17-2134
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN DOE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Lipez, and Howard,
Circuit Judges.
Allison Koury for appellant.
Alexia R. De Vincentis, Assistant United States Attorney,
with whom Andrew E. Lelling, United States Attorney, was on brief,
for appellee.
September 23, 2022
HOWARD, Circuit Judge. On May 17, 2016, defendant-
appellant John Doe pled guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Shortly before sentencing, Doe moved to withdraw his guilty plea,
arguing that his counsel was constitutionally ineffective and
therefore, that his plea was unknowing and involuntary. The
district court denied the motion, and Doe appeals that denial. He
has also argued for the first time on appeal there was a "fatal
omission" in his plea colloquy, and that the indictment in this
case should be dismissed because it did not allege that he knew
that he was not permitted to possess a firearm, as required by the
Supreme Court's recent decision in Rehaif v. United States, 139 S.
Ct. 2191 (2019).
On October 18, 2017, Doe was sentenced to fifteen years
of incarceration, followed by three years of supervised release.
The district court made clear during sentencing that it adopted
the Sentencing Guideline calculation recommended by the probation
office in the Presentence Investigative Report ("PSR"). The PSR
in turn identified three predicate convictions -- two for
possession with intent to distribute cocaine and one for assault
with a dangerous weapon. Because Doe had at least three predicate
offenses, the district court found, he was subject to a mandatory
minimum incarcerative sentence of fifteen years under the Armed
Career Criminal Act ("ACCA"). The district court also denied Doe's
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request to stay sentencing and hold an evidentiary hearing in light
of his allegation that the government breached its obligations
under a cooperation agreement by failing to file substantial
assistance motions under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).
Doe additionally appeals his classification as an armed career
criminal and the district court's failure to conduct an evidentiary
hearing before proceeding with sentencing.
For the reasons discussed below, we affirm both Doe's
conviction and sentence.
I. CHALLENGES TO THE PLEA AND CONVICTION
We begin with Doe's challenges to his plea and
conviction. Doe argues, as he did in the district court, that his
decision to plead guilty was not knowing or voluntary because it
was predicated on his belief that trial counsel had filed a motion
in federal court to suppress the firearms at issue. He further
asserts that the plea was not knowing or voluntary because trial
counsel was constitutionally ineffective in failing to file a
motion in state court to vacate at least one of his qualifying
predicate convictions. He also argues for the first time on appeal
that the district court's failure to inform him specifically that
he faced a mandatory minimum sentence violated Rule 11's core
concerns and rendered his plea invalid. Finally, Doe contends
that, in the wake of the Supreme Court's decision in Rehaif, 139
S. Ct. 2191, the indictment in this case failed to allege an
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essential element of the offense charged and therefore must be
dismissed.
Only Doe's ineffective assistance claim was raised in
the district court in the motion to withdraw the guilty plea.
Consequently, this is the only basis that we may review for an
abuse of discretion, rather than for plain error. See United
States v. Isom, 580 F.3d 43, 52 (1st Cir. 2009) ("As [the
defendant] moved to withdraw his guilty plea prior to sentencing,
we review the denial of the motion for abuse of discretion . . .
[and] [t]he district court's factfinding supporting its denial of
the motion . . . only for clear error."); see also United States
v. Castro-Gómes, 233 F.3d 684, 686–87 (1st Cir. 2000) (same).
Doe's preserved ineffective assistance claim, however,
cannot be resolved in this direct appeal. We have consistently
held that "fact-specific claims of ineffective assistance cannot
make their debut on direct review of criminal convictions, but,
rather, must originally be presented to, and acted upon by, the
trial court" in the post-conviction context. United States v.
Negrón-Narváez, 403 F.3d 33, 40 (1st Cir. 2005) (quoting United
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)); see also United
States v. Rosario-Cólon, 431 F. App'x 4, 5 (1st Cir. 2011) ("[A]
collateral proceeding brought under 28 U.S.C. § 2255, and not
direct appeal, is usually the proper vehicle for a claim of
ineffective assistance of counsel."). We may make an exception,
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however, "for cases in which trial counsel's ineffectiveness is
manifestly apparent from the record." United States v. Wyatt, 561
F.3d 49, 52 (1st Cir. 2009).
Though it was raised below, Doe's claim cannot be decided
purely on the record before us. To be sure, Doe filed several
affidavits in the district court stating that he believed his
original counsel had sought to suppress the firearms at issue and
that this belief affected his decision to plead guilty. His
successor counsel represented that the motion to suppress would
have been meritorious. Beyond this, however, there is nothing in
the record that sheds light on the actual substance of these
hypothetical motions that should have been filed; nor is there any
meaningful way for us to evaluate the claim that prior counsel was
constitutionally ineffective because he failed to seek
suppression. Doe's claim of ineffective assistance therefore is
not "manifestly apparent from the record" and must be reserved for
future collateral proceedings. Id.Our review on direct appeal is limited to Doe's challenge
to the sufficiency of his plea colloquy under Rule 11 and to the
indictment under Rehaif, 139 S. Ct. 2191. Because neither claim
was presented to the district court, we review each claim only for
plain error. See United States v. Dominguez Benitez, 542 U.S. 74,
76 (2004) ("Because the claim of Rule 11 error was not preserved
by timely objection, the plain-error standard . . . applies, with
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its requirement to prove effect on substantial rights, . . .
[meaning] the defendant is obligated to show a reasonable
probability that, but for the error, he would not have entered the
plea."); United States v. Dawn, 842 F.3d 3, 5 (1st Cir. 2016)
(same).
A. Rule 11 and the Plea Colloquy
On appeal, Doe focuses his challenge to his conviction
on his contention that his plea colloquy was facially invalid
because of a "fatal omission" that rendered his guilty plea
unknowing and involuntary.
Doe is correct that Rule 11 of the Federal Rules of
Criminal Procedure requires the district court to "address the
defendant personally in open court" and "inform the defendant of,
and determine that the defendant understands . . . any mandatory
minimum penalty" he may face. Fed. R. Crim. P. 11(b)(1)(I). This
requirement, like the others codified in Rule 11(b)(1), is
intended to ensure that "(1) the plea is voluntary; (2) that the
defendant understands the charge to which he has pled guilty; and
(3) that the defendant knows the consequences of his guilty plea."
Castro-Gómez, 233 F.3d at 687 (holding that these are the "'core'
concerns of Rule 11(c)") (Rule 11 was subsequently amended in 2002
to explicitly include the list of requirements in the text of
subsection (b)). Even in cases where a mandatory minimum sentence
"is not finally determined until after the plea process is
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complete," the district court is obligated under Rule 11 to inform
the defendant of at least the possibility of a mandatory minimum
sentence. United States v. Santo, 225 F.3d 92, 98 (1st Cir. 2000).
And, the court's failure to do so renders the plea colloquy
"imperfect." Castro-Gomez, 233 F.3d at 687 (citing Santo, 225
F.3d at 98).
The record reveals that the district court satisfied
this requirement. During the plea colloquy, the district court
inquired of Doe whether he had read the plea agreement and had
discussed it with his counsel. The court went on to say that "if
you look at Section 2 [of the plea agreement], it summarizes the
penalties you become exposed to on conviction of this offense that
you're pleading guilty to, and it includes the possibility of a
minimum mandatory sentence of 15 years." Doe responded in open
court that he understood this. Whether the district court could
have been more persistent in its inquiry of Doe with respect to
his understanding of the penalties he faced, we cannot say that
the plea colloquy in this case was deficient, especially in the
absence of any objection by counsel, either contemporaneously or
in Doe's later motion to withdraw his plea.
Even if the plea colloquy was facially "imperfect,"
however, Doe must still show that, had the district court informed
him that he faced a possible mandatory minimum sentence of fifteen
years, he would not have pled guilty. See Dominguez Benitez, 542
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U.S. at 76. He cannot make such a showing here, especially because
the plea agreement specifically states that Doe faced a mandatory
minimum sentence of fifteen years and that the government would
recommend an incarcerative sentence of fifteen years. During the
plea colloquy, Doe confirmed in open court that he had read the
plea agreement multiple times and had discussed the agreement and
its implications with counsel before agreeing to plead guilty.
Moreover, Doe was advised by the PSR that he faced a mandatory
minimum sentence of fifteen years of incarceration because he had
been classified as an armed career criminal. And, Doe had the
opportunity to (and in fact did) object to this classification
prior to sentencing.
Read in conjunction, the plea agreement, the transcript
of the plea colloquy, and the PSR make clear that Doe was fully
aware of the potential mandatory minimum penalty that he faced and
still chose to proceed and plead guilty. Doe therefore cannot
carry his burden of establishing plain error. See United States
v. Romero-Galindez, 782 F.3d 63, 67–68 (1st Cir. 2015) (holding
that the defendant could not show that the district court's failure
to advise him of the statutory maximum and minimum penalties was
plainly erroneous because he was "made aware of the mandatory
minimum and maximum imprisonment term during plea negotiations, as
evidenced by the plea agreement" and because the penalties were
correctly reflected in the PSR).
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B. Rehaif and the Indictment
Second, Doe contends that the indictment should be
dismissed because it failed to adequately allege that he knew that
he was not permitted to possess a firearm at the time of the
offense. See Hamling v. United States, 418 U.S. 87, 117 (1974)
("[A]n indictment is sufficient if it . . . contains the elements
of the offense charged and fairly informs a defendant of the charge
against which he must defend.").
In Rehaif v. United States, the Supreme Court made clear
that "[t]o convict a defendant [for a firearm offense under 18
U.S.C. § 922(g)], the government must show that the defendant knew
he possessed a firearm and also that he knew he had the relevant
status when he possessed it." 139 S. Ct. at 2194. The knowledge
requirement of section 922(g), the Court held, applies to all
material elements of the offense, meaning the government had to
allege and prove that a defendant knew that he was prohibited from
carrying a firearm. Id. at 2196. Because the indictment does not
clearly state that he knew he was barred from possessing a firearm,
Doe argues, it is facially deficient and should be dismissed.
The government has not contested the indictment's deficiency, so
we assume that it, in fact, fails to adequately allege the
essential elements of the charged offense.
This does not, however, mean that the indictment must be
dismissed. "[D]efects in indictments [including the omission of
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a material element of the charged offense] are not jurisdictional
and thus are subject to waiver." United States v. Urbina-Robles,
817 F.3d 838, 842 (1st Cir. 2016) (citing United States v. Cotton,
536 U.S. 625, 630 (2002)). And Doe waived his right to challenge
the sufficiency of the indictment by pleading guilty. Id.; see
also United States v. Burghardt, 939 F.3d 397, 402 (1st Cir. 2019).
Moreover, Doe did not argue in his original briefing
that the deficiency in his indictment rendered his plea unknowing
and involuntary because he was not properly advised of the charges
against him. He was not barred by his guilty plea from raising
this argument, see Urbina-Robles, 817 F.3d at 842, and his failure
to do so until much later, in a letter filed under Fed. R. App. P.
28(j), means that the argument is waived. See United States v.
Dávila-Félix, 667 F.3d 47, 51 n.5 (1st Cir. 2011).
Even if it had not been waived, this argument would be
subject only to plain error review, because it was never presented
to the district court. To succeed, then, Doe would have had to
show that "he would have insisted on going to trial [rather than
pleading guilty] . . . if he had been told of the scienter-of-
status element" of § 922(g). United States v. Burghardt, 939 F.3d
397, 403 (1st Cir. 2019). In other words, Doe would have had to
"make a specific showing of prejudice" arising from the district
court's failure to inform him of an element of the crime to which
he was pleading guilty. United States v. Antonakopoulos, 399 F.3d
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68, 77 (1st Cir. 2005) (citing United States v. Olano, 507 U.S.
725, 735 (1993)); but see, generally, United States v. Gary, 954
F.3d 194, 198 (4th Cir. 2020) (holding, contrary to the First,
Second, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits, that
a district court's failure to inform a defendant of the scienter-
of-status element of § 922(g) during a plea colloquy constituted
structural error and rendered a guilty plea void). Doe cannot
make such a showing here. During his plea colloquy, Doe agreed
with the government's summary of the case against him, including
the fact that Doe told police that he "had traveled in interstate
commerce with the weapons and that he knew he should not have had
those weapons."
Even if, contrary to our conclusion in Burghardt, we
were free to agree with the Fourth Circuit that this kind of error
could be structural, Doe has waived any challenge to his guilty
plea on this basis. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("[I]ssues advanced in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."); Jackson v. Bartow, 930 F.3d 930, 934 (7th Cir.
2019) ("[T]he consequence of a 'structural' error is that it is
not subject to harmless error review . . . but such errors can
still be waived.").
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II. CHALLENGES TO THE SENTENCE
In addition to challenging his conviction itself, Doe
challenges his classification as an armed career criminal and the
resulting fifteen-year mandatory minimum sentence. He also argues
that the district court should have conducted an evidentiary
hearing prior to sentencing to determine whether the government
had breached its obligations under the plea and cooperation
agreements by failing to file substantial assistance motions under
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).
We conclude that, even if Doe's challenge to the ACCA
classification is not precluded by the appeal waiver in his plea
agreement, his classification as an armed career criminal is
appropriate under our precedent. Although his challenge to the
government's failure to file substantial assistance motions falls
outside the scope of the appeal waiver, we nevertheless conclude
that the district court did not err in declining to hear evidence
before sentencing.
A. Waiver of Appellate Rights
We consider first whether, in light of the waiver of
appellate rights contained in the plea agreement, Doe is entitled
to a merits review of his challenges to his sentence. We have
consistently held that written waivers of appellate rights are
valid and enforceable as long as "(1) the written plea agreement
clearly delineates the scope of the waiver; (2) the district court
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inquired specifically at the plea hearing about any waiver of
appellate rights; and (3) the denial of the right to appeal would
not constitute a miscarriage of justice." United States v. Edelen,
539 F.3d 83, 85 (1st Cir. 2008) (citing United States v. Teeter,
257 F.3d 14, 25 (1st Cir. 2001)). As a general rule, a waiver of
appellate rights will not bar a defendant from arguing that his
guilty plea was not knowing and voluntary, meaning the waiver of
appellate rights only implicates Doe's challenge to his sentence
and not to the plea itself. See Isom, 580 F.3d at 43. The waiver
in this case also does not bar a challenge to either the conviction
or sentence that is predicated on a claim of ineffective assistance
of counsel or prosecutorial misconduct, meaning it does not
foreclose Doe's argument with respect to the government's
obligations under the cooperation agreement.
However, the appellate waiver does appear to apply
broadly to all other challenges to the sentence, including to Doe's
classification as a career offender for purposes of ACCA. By its
terms, the waiver of appellate rights prevents Doe from challenging
"any sentence of imprisonment of 210 months or less . . . even if
the Court's Guidelines analysis is different from that set forth
in his plea agreement." Doe's mandatory sentence stemming from
his classification as an armed career criminal seems to fall within
the plain meaning of this provision. There is also no dispute
that the district court inquired specifically about the waiver of
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appellate rights during the plea colloquy. Doe's ACCA claim
therefore merits substantive consideration only if certain
conditions are met, and then only if a failure to do so would
constitute a "miscarriage of justice." Teeter, 257 F.3d at 25.
In this connection, Doe "faces a steep challenge" because "the
miscarriage of justice reservation is to be applied sparingly and
without undue generosity." Edelen, 539 F.3d at 87 (internal
quotations and citations omitted). "The appropriateness of the
exception turns on our consideration of several factors,"
including "the clarity of the alleged error, its character and
gravity," prejudice to the government, and "the extent to which
the defendant acquiesced in the result." Id. (quoting United
States v. Pratt, 533 F.3d 34, 37 (1st Cir. 2008)).
We do not need to consider the miscarriage of justice
factors, however. Assuming arguendo that Doe's ACCA claim is not
barred by his waiver of appellate rights in the plea agreement,
the claim fails on the merits in any event.
B. The ACCA Classification
Doe focuses his challenge to his classification as an
armed career criminal on his contention that his prior convictions
for possession with intent to distribute cocaine are not proper
ACCA predicates because the Massachusetts drug distribution
statute, Mass. Gen. Laws ch. 94C, § 32A, is not a "serious drug
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offense" for purposes of ACCA.1 In particular, he argues that the
Massachusetts statute is overbroad because, unlike the federal
Controlled Substances Act ("CSA"), it criminalizes "dispensing,"
in addition to "manufactur[ing], distributing, or possessing with
intent to manufacture or distribute a controlled substance." See
18 U.S.C. § 924(e)(2)(A)(ii). As a consequence, Doe argues, the
Massachusetts statute criminalizes conduct that is not within the
"generic guidelines offense."
To determine whether a conviction under the
Massachusetts drug distribution statute qualifies as an ACCA
predicate, we use the categorical approach, which requires that we
look "only to the statutory definitions of the prior offenses,"
and not to the particular facts underlying the conviction. Taylor
v. United States, 495 U.S. 575, 600 (1990); see also Mathis v.
United States, 136 S. Ct. 2243 (2016). In doing so, Doe argues,
1Subsequent to the oral argument in this appeal, Doe argued
that, after Borden v. United States, 141 S.Ct. 1817 (2021), his
Massachusetts conviction for assault with a dangerous weapon is no
longer a proper ACCA predicate. In Borden, the Court held that
ACCA's elements clause does not "include[] offenses criminalizing
reckless conduct." Id. at 1827 (plurality). We have previously
held that, in Massachusetts, assault with a dangerous weapon cannot
be committed recklessly. See United States v. Hudson, 823 F.3d
11, 17 (1st Cir. 2016) ("[U]nder Massachusetts decisional law an
[Assault with a Dangerous Weapon] conviction requires that the use
or threat of physical force be intentional.") (citing Commonwealth
v. Porro, 939 N.E.2d 1157, 1163–64 (Mass. 2010)). We see no reason
to deviate from our precedent.
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we determine whether a state conviction is for a "serious drug
offense" by comparing the state offense to its common-law or
federal counterpart; in other words, we apply the same approach
that we use when deciding whether a prior conviction qualifies as
one of the enumerated offenses in ACCA's definition of a "violent
felony." Mathis, 136 S. Ct. at 2248 ("ACCA defines the term
'violent felony' to include any felony, whether state or federal,
that 'is burglary, arson, or extortion.' . . . To determine whether
a prior conviction is for generic burglary (or other listed crime)
courts . . . focus solely on whether the elements of the crime of
conviction sufficiently match the elements of generic burglary.").
Contrary to Doe's argument, the Supreme Court
specifically disavowed this approach and held that "[t]he 'serious
drug offense' definition requires only that the state offense
involve the conduct specified in the federal statute; it does not
require that the state offense match certain generic offenses."
Shular v. United States, 140 S. Ct. 779, 781 (2020). Instead, we
ask only whether the elements of the prior state conviction
"necessarily entail one of the types of conduct identified in
§ 924(e)(2)(a)(ii)," namely manufacturing, distribution, or
possession with intent to distribute a controlled substance. Id.
at 784 (citing Kawashima v. Holder, 565 U.S. 478 (2012)) (emphasis
in original); see also United States v. McKenney, 450 F.3d 39, 43–
44 (1st Cir. 2006) ("[T]he word 'involving' [in the definition of
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"serious drug offense"] has expansive connotations, [meaning] it
must be construed as extending the focus of § 924(e) beyond the
precise offenses of distributing, manufacturing, or possessing,
and as encompassing as well offenses that are related to or
connected with such conduct." (quoting, inter alia, United States
v. King, 325 F.3d 110, 113 (2d Cir. 2003) (cleaned up)). To be
sure, Shular does not suggest that "all offenses bearing any sort
of relationship with drug manufacturing, distribution, or
possession with intent to manufacture or distribute will qualify
as predicate offenses under ACCA." McKenney, 450 F.3d at 45. But
it would go too far to say that a state statute that adds
"dispensing" to the categories of prohibited conduct no longer
defines an offense that "necessarily entail[s] one of the types of
conduct identified in § 924(e)(2)(a)(ii)." Shular, 140 S. Ct. at
784.
Further supporting our conclusion is the fact that the
Massachusetts Supreme Judicial Court ("SJC") has narrowed the
definition of the word "dispense" to apply only to conduct covered
by the federal CSA. Commonwealth v. Brown, 925 N.E.2d 845, 856
n.14 (Mass. 2010) (citing United States v. Badia, 490 F.2d 296,
298, n.4 (1st Cir. 1973), and concluding that the Massachusetts
legislature "intended the same when it included 'dispense' in the
drug statutes"). Under Massachusetts law, "the threshold element
of unlawful dispensing is the issuance of an invalid prescription
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. . . i.e., one issued without a legitimate medical purpose and
not in the usual course of the physician's professional practice."
Brown, 925 N.E.2d at 854-55 (emphasis added) (citing Commonwealth
v. Comins, 356 N.E.2d 241, 247 (Mass. 1976)). Consequently, only
a physician may "dispense"; everyone else "distributes." See
Comins, 356 N.E.2d at 247. And, the SJC has concluded that "there
is no space in the definition of 'dispense' for a physician acting
outside his or her role as a physician, or for a patient acting
outside his or her role as a patient," meaning a physician
"unlawfully dispenses" a controlled substance only in a narrow set
of circumstances -- such as when a physician has allowed his
license to lapse. Brown, 925 N.E.2d at 856-57 and n.14.
Violation of the Massachusetts drug distribution statute
is therefore categorically a "serious drug offense" and Doe's two
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prior convictions under this statute were properly characterized
as ACCA predicates.2 3
C. The Cooperation Agreement
Finally, Doe challenges the district court's decision to
proceed with sentencing despite argument from defense counsel that
the government had failed to honor the terms of the cooperation
agreement. At the outset, we note that this challenge to his
2 Doe also argues that his 1994 conviction in Waltham district
court does not qualify as a predicate offense under the First Step
Act. Passed in 2018, the First Step Act amended the definition of
"serious drug felony" in the CSA to apply only to convictions that
were within "15 years of the commencement of the instant offense."
21 U.S.C. § 802. However, the First Step Act only applies to
offenses that "[were] committed before the date of enactment . . .
if the sentence for the offense has not been imposed as of such
date of enactment [here, December 21, 2018]." First Step Act,
Pub. L. 115-391 § 401 (passed December 21, 2018); see also United
States v. Wiseman, 932 F.3d 411, 417 (6th Cir. 2019) ("[T]he First
Step Act is largely forward-looking and not retroactive.").
Because Doe was sentenced in 2017, before the First Step Act went
into effect, it does not apply here.
3 After oral argument, Doe filed a pro se submission citing a
recent Seventh Circuit opinion which held that the Illinois
statutory definition of cocaine was "categorically broader than
the federal definition" because its definition of cocaine included
"optical, positional and geometric isomers," see United States v.
Ruth, 966 F.3d 642, 647 (7th Cir. 2020), cert. denied, 141 S. Ct.
1239 (2021), where the federal definition of cocaine includes only
its "optical and geometric isomers," 21 U.S.C. § 812. Doe
mistakenly argues that the Massachusetts statute suffers from the
same defect. We review this entirely new argument for plain error.
See United States v. Figuereo, 404 F.3d 537, 540 n.3 (1st Cir.
2005). Unlike Illinois, Massachusetts's relevant statute does not
reference any isomers. See Mass. Gen. L. c. 94c § 31. Based on
this distinction and with the briefing and record before us, we
cannot say that any potential error was clear or obvious. See
United States v. Mastera, 435 F.3d 56, 61 (1st Cir. 2006).
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sentence falls outside the scope of the waiver of appellate rights
contained within the plea agreement. Indeed, the appellate waiver
specifically reserves to Doe the right to challenge his sentence
on the basis of prosecutorial misconduct.
The cooperation agreement between Doe and the government
specifies that Doe would provide "complete and truthful
information" to law enforcement about certain individuals and
testify against those individuals if asked to do so. In exchange,
the Agreement stated that if the "Defendant provide[d] substantial
assistance in the investigation or prosecution of another person,"
the government "w[ould] file a motion under U.S.S.G. § 5K1.1 to
recommend that the Court impose a sentence below the advisory
Guideline range"; "if the U.S. Attorney determines it is
appropriate," the government will "also file a motion under 18
U.S.C. § 3553(e) to enable the Court to impose a sentence below
the statutory mandatory minimum." However, the Agreement also
specified that "[t]he determination whether Defendant had provided
substantial assistance rests solely in the discretion of the U.S.
Attorney," who would make the decision "based on the truthfulness
and value of Defendant's assistance."
At sentencing, Doe argued to the district court that it
did not have sufficient information to proceed with sentencing and
asked the court to hear evidence on whether the government had
breached its obligations under the cooperation agreement. In
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essence, Doe argued, the government "is in breach of the
[cooperation] agreement by inducing this individual to agree to a
harsh sentence and then pulling it out from under him," especially
because Doe did "everything the government asked him to do." The
district court denied the request for an evidentiary hearing. We
review its denial for abuse of discretion. United States v.
Alegría, 192 F.3d 179, 189 (1st Cir. 1999).
Under the Sentencing Guidelines, the government has the
power, but not the obligation, to file a motion on behalf of a
defendant who has "provided substantial assistance in the
investigation or prosecution of another person who has committed
an offense," asking the court to vary downward from the guidelines.
U.S.S.G. § 5K1.1; see also Wade v. United States, 504 U.S. 181,
185 (1992). If the government also files a motion under 18 U.S.C.
§ 3553(e), as it agreed to consider here, the court may also vary
downward from any statutory mandatory minimums. 18 U.S.C.
§ 3553(e) ("Upon motion of the Government, the court shall have
the authority to impose a sentence below a level established by
statute as a minimum sentence so as to reflect a defendant's
substantial assistance . . ."); see also Melendez v. United
States, 518 U.S. 120, 130 (1996). However, both 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5K1.1 are permissive, not mandatory;
unless the government agrees explicitly to file such motions, the
decision to file them is discretionary. Wade, 504 U.S. at 185
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("[W]e see no reason why courts should treat a prosecutor's refusal
to file a substantial-assistance motion differently from a
prosecutor's other decisions . . . .").
Whether there was an abuse of discretion by the district
court in not holding an evidentiary hearing should be viewed in
context. Our cases make clear that there are only certain
scenarios in which a defendant can challenge the government's
exercise of its discretion to file substantial assistance motions.
United States v. Sandoval, 204 F.3d 283, 286 (1st Cir. 2000). One
is where the government's decision not to file was based "on some
constitutionally impermissible factor (say, race or religion), or
is 'not rationally related to [some] legitimate Government end.'"
Id. (quoting Wade, 504 U.S. at 185–86); see also United States v.
Moore, 225 F.3d 637, 641 (6th Cir. 2000). Another is where "the
government explicitly undertakes to make, or to consider making,
such a motion." Sandoval, 204 F.3d at 286. Neither scenario is
presented here.
Doe has not argued that the government's failure to file
substantial assistance motions was not rationally related to some
legitimate government purpose or that the decision was premised on
his race, religion, sex, or membership in any other protected
group. Instead, his argument is that the government promised to
consider making substantial assistance motions and that it acted
in bad faith by failing to file such motions. The argument
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proceeds that the court abused its discretion by not holding an
evidentiary hearing on the issue of the government's good faith.
See Alegría, 192 F.3d at 188 (stating that a government promise to
file a substantial assistance motion "carried with it an obligation
to evaluate the appellant's assistance in good faith (although the
'sole discretion' language in which the promise was couched
informed the nature of the obligation)").
"[A] party seeking an evidentiary hearing must carry a
fairly heavy burden of demonstrating a need for special treatment."
Id. at 188 (quoting United States v. McGill, 11 F.3d 223, 225 (1st
Cir. 1993)). After the government offers "facially adequate
reasons" explaining why a defendant "failed to achieve the
substantial assistance benchmark," the defendant must "make[] a
substantial threshold showing that the government acted in bad
faith" to warrant an evidentiary hearing. Id. at 187-88.
Here, like in the agreement in Alegría, see id. at 186,
the government agreed to file substantial assistance motions if
Doe provided "substantial assistance in the investigation or
prosecution of another person." But it cabined that agreement by
explicitly stating that "[t]he determination whether Defendant had
provided substantial assistance rests solely in the discretion of
the U.S. Attorney." Before sentencing, Doe alleged that he did
everything the government asked of him, that the government acted
in bad faith by failing to give a reason for its failure to file
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such motions, and requested the opportunity "to make a proffer of
what [Doe] would show and what evidence that [he] would like to
present."
Doe also alleged, without support, that the government
was "refusing to honor the cooperation agreement and file a
[§ 5K1.1] motion . . . [because it was] alleg[ing] the defendant
breached somehow." The government denied that allegation and
explicitly stated that it was not arguing that Doe breached either
the plea agreement or the cooperation agreement. Rather, the
government represented that it was "just not filing a [§ 5K1.1
motion] on this matter" based on the value of the assistance Doe
provided. Defense counsel may not get an evidentiary hearing with
unsubstantiated allegations such as these.
The district court declined, based on that mere request,
to hold an evidentiary hearing and stated "that the government is
within its rights . . . to decline under the agreements" to file
substantial assistance motions. It told defense counsel that he
could make a proffer after sentencing, then sentenced Doe.
In response to the district court's willingness to hear
a proffer, the government provided further explanation as to why
it chose not to file substantial assistance motions. It
represented to the district court that Doe sat for a single, two-
hour proffer with law enforcement, that it never called Doe to
testify or appear in court, and that his name "never appeared on
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a witness list." "At best," the government stated, "Doe's name
was mentioned to the defense in a case where they indicated that
it would be possible that they might call Doe as a potential
rebuttal witness." Doe did not contest there was a single two-
hour proffer but did say there was some evidence that his name had
in fact appeared on a witness list.4
The government's several representations to the court
about the reasons for its dissatisfaction with the limited nature
of Doe's assistance more than constituted a facially valid reason
for it to decide not to file substantial assistance motions. This
is so even if one were to accept Doe's contentions5 that he did
everything that was asked of him, that he provided a fully truthful
proffer, and that his name may have in fact appeared on a witness
list resulting in retaliation. Consequently, we cannot say that
the district court abused its discretion in declining to hold an
evidentiary hearing.
4 He also made an argument, not pertinent to the question of
the government's reasons for not filing substantial assistance
motions, that he faced retaliation because of his cooperation.
5 We add that even if Doe's contentions were true, that does
not lead to a conclusion that he provided substantial assistance.
See Alegría, 192 F.3d at 184 (interpreting a cooperation agreement
in light of the Sentencing Guidelines and stating that "full,
complete and truthful cooperation, in and of itself, is not
coextensive with the substantial assistance"); Sandoval, 204 F.3d
at 286 n.2 ("[C]ooperation differs significantly from substantial
assistance.").
- 25 -
The arguments made by our dissenting colleague are not
supported by the record. Contrary to the dissent's assertion, the
district court did not evince an erroneous view that "the
government retained complete discretion to determine whether to
file a substantial assistance motion 'except under very unusual
circumstances.'" The district court said that "the evaluation of
whether [the defendant's cooperation is] helpful enough to warrant
a reward is what the government reserves to itself," that it is
"up to the government to be satisfied," that "there's no obligation
to be satisfied," that "the usual reason given is that [the
government] is not satisfied," that the "very unusual
circumstances" under which the government might have acted
impermissibly "[don't] exist here," and that "[its] ruling is that
the government is within its rights. . . to decline under the
agreements [to file substantial assistance motions]." The court
correctly recited the law. Its statements hardly reflect an
ignorance of the law and certainly do not reflect that the court
considered the government to have unbridled discretion to refuse
to file substantial assistance motions.
III. CONCLUSION
For the foregoing reasons, the conviction and sentence
are affirmed.
-Dissenting Opinion Follows-
- 26 -
LIPEZ, Circuit Judge, dissenting in part. I disagree
with the majority on only one issue -- its conclusion that the
district court did not err in its handling of Doe's request for an
evidentiary hearing on the government's decision not to file
substantial assistance motions under U.S.S.G. § 5K1.1 and 18
U.S.C. § 3553(e),6 despite the government's promise to consider
doing so in the Cooperation Agreement. In my view, that conclusion
rests on a misreading of the record. The district court never
applied the burden-shifting framework of United States v. Alegría,
192 F.3d 179 (1st Cir. 1999), to Doe's request because it
misapprehended the law. Hence, I believe that the judgment must
be vacated, and the case remanded to the district court so that it
can apply that framework in determining whether Doe was entitled
to an evidentiary hearing.
6The Sentencing Guidelines provide that, upon motion of the
government stating that the defendant has provided substantial
assistance in another criminal investigation or prosecution, a
court may sentence the defendant below the applicable guidelines
range. See U.S.S.G. § 5K1.1. If the defendant is subject to a
mandatory minimum sentence, the government may also file a
substantial assistance motion pursuant to 18 U.S.C. § 3553(e),
which authorizes a court to impose a sentence below the applicable
mandatory minimum. The government agreed to consider filing a
motion under both provisions in Doe's Cooperation Agreement.
During the district court proceedings, the parties referred to a
motion filed under either provision interchangeably as a "5K
motion" or a "substantial assistance motion." To avoid confusion,
I will simply refer to such motions as "substantial assistance
motions."
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I.
As the majority recognizes, Alegría similarly involved
a written agreement between the government and a defendant in which
the government promised to consider filing a motion for leniency
at sentencing in exchange for the defendant's substantial
assistance. 192 F.3d at 182, 188. The agreement in Alegría also
contained a qualification -- using language nearly identical to
that used in Doe's Cooperation Agreement -- that the decision to
file a substantial assistance motion rested in the sole discretion
of the government. Compare Doe's Cooperation Agreement ("The
determination whether the Defendant has provided substantial
assistance rests solely in the discretion of the U.S. Attorney."),
with Alegría, 192 F.3d at 184 ("[T]he [government's] decision
whether to file a motion based on 'substantial assistance' . . .
rests in the sole discretion of the United States.").
At sentencing in Alegría, the government declined to
file a substantial assistance motion. 192 F.3d at 182. The
defendant insisted that he was entitled to an evidentiary hearing
on whether the government had an adequate reason for its decision
not to file. Id. at 182, 186-87. The government argued that its
decision was unreviewable because it had expressly reserved
complete discretion to decide whether to file a motion. Id. at
184-85. We disagreed. We held that when the government (1) enters
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an agreement with a defendant that specifically contemplates the
filing of a substantial assistance motion at sentencing in exchange
for the defendant's plea and cooperation, and (2) purports to
retain complete discretion as to whether to file such motion, the
government's discretion is nonetheless cabined by a requirement
that it act in good faith and supply a facially adequate reason
for its decision not to file a substantial assistance motion. Id.
at 187. Otherwise, we explained, "a significant element of the
consideration for appellant's change of plea" -- the government's
promise to consider asking for leniency at sentencing -- would be
rendered "illusory." Id. (quoting United States v. Garcia, 698
F.2d 31, 36 (1st Cir. 1983)).
The framework spelled out in Alegría is thus clear: when
the government expressly agrees to consider filing a substantial
assistance motion and it declines to do so, and the defendant
challenges that decision, the government bears a modest burden of
production -- not persuasion -- to show that it evaluated the
defendant's assistance in good faith by offering a facially
adequate reason for its decision not to file the motion. Id. That
burden exists even when the government retains complete discretion
as to whether to make that filing. Id. If the government satisfies
its burden to provide a facially adequate reason, the burden then
shifts to the defendant to demonstrate entitlement to an
evidentiary hearing on the matter by making "a substantial
- 29 -
threshold showing that the government acted in bad faith." Id.Such a showing may include "persuasive evidence of either
substantial assistance or bad faith."7 Id. at 189. The defendant
must satisfy "a fairly heavy burden" to show that he is entitled
to an evidentiary hearing. Id. at 188 (quoting United States v.
McGill, 11 F.3d 223, 225 (1st Cir. 1993)).
II.
A fair reading of the record reveals that the district
court never applied Alegría's good-faith requirement and burden-
shifting framework. Prior to sentencing, Doe filed under seal a
Motion for Downward Departure, arguing that, even though the
government had not filed a substantial assistance motion, he was
entitled to a downward departure because the government's decision
not to file such a motion was "not rationally related to [some]
legitimate [g]overnment end," and was instead based on the
government's unexplained determination that Doe had breached the
plea agreement. At sentencing, in light of that motion, the
following exchange took place at sidebar:
Despite the disjunctive language of Alegría, even if the
7
defendant's threshold showing involves a claim of substantial
assistance, the defendant must also provide persuasive evidence
that the government's claim to the contrary involves bad faith in
order to justify an evidentiary hearing. In other words, the focus
of Alegría's burden-shifting framework is the good faith of the
government in declining to file a substantial assistance motion.
See Alegría, 192 F.3d at 188-89.
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Defense Counsel: This relates to the
government refusing to honor the cooperation
agreement and file a 5K motion and whether
the government can establish that the
defendant -- they allege the defendant
breached somehow. We don't -- I don't know
how he supposedly breached, all I know is
that the government said he breached, and
they won't file. So we need to establish
whether or not the government has an
obligation to file a 5K.
Court: I don't have the agreements in front
of me. The standard agreements usually
provide that it's at the sole discretion of
the government to make a decision to move
for a downward departure under 5K.
Defense Counsel: That may be the case, your
Honor; however, the sole discretion is to
determine whether or not a defendant
provided substantial cooperation.
Court: So --
Defense Counsel: Whether a defendant breaches
in some other manner is a question for the
Court.
Government: Let me be very clear. The
government's not alleging that he breached
the cooperation agreement in the least; the
government is just not filing a 5K on this
matter. We're not suggesting that he
breached any plea agreement.
Defense Counsel: So you induce a defendant
to sign a plea agreement and [accompanying]
cooperation agreement, and then you just
pull it out and refuse to file a 5K without
reason?
Court: Well, the usual reason given is that
they're not satisfied. It's an interesting
argument but --
Defense Counsel: Your Honor, if I may, I
would like on the record to make a proffer
- 31 -
of what we would show and what evidence that
we would like to present.
Court: I'll tell you what: I'll let you make
the proffer after the conclusion of the
proceedings just to protect the record,
because the ruling is that the government is
within its rights, I guess, to decline under
the agreements. I'm assuming the agreements
have the traditional language.
Government: Absolutely the standard
language. I have it at my desk.
Court: It's up to the government to be
satisfied. There's no obligation to be
satisfied.
Defense Counsel: Is the government claiming
--
Government: I'm not answering questions to
you. The court asks the questions --
Defense Counsel: This is why we need
testimony to establish it.
Court: No. I'll let you preserve the point.
I don't think it's necessary to do it any
more than we are doing it now, but I'll give
you the chance after the conclusion of the
proceedings if you want to amplify on
it. . . . [T]he evaluation of whether [the
defendant's cooperation is] helpful enough
to warrant a reward is what the government
reserves to itself. And the law is pretty
clear on that.
Defense Counsel: I'm sorry. Just -- but
that's not necessarily what they're saying.
For a Court to impose sentence with this
open issue without resolving it factually, I
think it cannot --
Court: I guess my point is that I don't
regard it as an open issue because of the
discretion the government has. They simply
say, "We've decided not to move." There's
no enforceable obligation basically --
- 32 -
Defense Counsel: There is an --
Court: -- except under very unusual
circumstances that I might possibly imagine,
but it doesn't exist here. But I'll let you
preserve the argument for appellate review if
you want. I just don't want to disrupt things.
As the excerpted colloquy demonstrates, the district
court held the legally erroneous view that the government retained
complete discretion to determine whether to file a substantial
assistance motion "except under very unusual circumstances that
[the court] might possibly imagine," but never explained further.
There is no support in the record for the majority's conclusion
that the district court "correctly recited the law" and determined,
in its discretion, that Doe was not entitled to an evidentiary
hearing. To the contrary, the district court's statements make
clear that it thought that it lacked the authority to review the
government's decision. Instead, it speculated that the "usual
reason" the government gives for not filing a substantial
assistance motion is "that they're not satisfied," but the court
did not inquire further because it concluded that, "basically,"
the government has "no enforceable obligation." Hence, without
demanding any showing from the government (its burden of production
under Alegría), the court simply concluded that "the government
[wa]s within its rights . . . to decline [to file a substantial
assistance motion] under the agreements," and proceeded to
sentencing.
- 33 -
The post-sentencing proceedings did not, contrary to the
majority's suggestion, remedy the district court's pre-sentencing
error. During an "addendum" to Doe's sentencing hearing, after
sentence had already been imposed, the court allowed the defense
to elaborate on Doe's objection to the government's failure to
file a substantial assistance motion for the sole purpose of
preserving the issue for appeal. Counsel for Doe argued that the
court "did not . . . ha[ve] sufficient information with which to
impose sentence" and that the court was obligated by case law to
ask the government to provide a reason for its refusal to file a
substantial assistance motion and to evaluate whether an
evidentiary hearing was warranted on the matter prior to imposing
sentence. Counsel contended that "the government . . . decide[d],
'No, no 5K. We don't have to. We don't even have to give you a
reason.' I say they do and case law says they do. . . . Th[e] court
does have the ability to enforce the agreement. . . . I don't think
the court had sufficient information to impose sentence at this
time."
Counsel for Doe also argued that it was error for the
district court effectively to conclude that the government could
"induc[e] Doe to agree to a harsh sentence" by promising to
consider filing a substantial assistance motion for Doe's
cooperation and then "pull [that promise] out from under [Doe]
saying, 'No, we don't have to file anything' without any
- 34 -
explanation." Counsel argued, again for the sole purpose of
preserving the issue for appeal, that Doe was entitled to an
evidentiary hearing:
Mr. Doe did everything, everything the
government asked him to do. We would have
presented evidence that he did a good job and
gave substantial, significant information to
the government. We would have presented
evidence that the government said he, John
Doe, hit a home run with his proffer. He did
everything they wanted. He put his life in
danger because of that cooperation your Honor.
He has been attacked in jail. His wife has
been threatened. He's in fear.
Counsel concluded: "If they [the government] say [Doe] breached,
we want to know how. If they say he didn't breach, we want to
know why they will not file a 5K."
The court asked if the government had anything to add.
In response, the government finally elaborated on its decision,
explaining that "Doe met with law enforcement for approximately
two hours and provided them information" but "[t]he government
chose not to use Mr. Doe." The government emphasized that "Doe
did not testify, [he] did not appear in court. . . . [His] name
never appeared on a witness list." The government explained that
it "chose not to utilize Mr. Doe and that's as far as it goes."
It continued, "[w]e're well within our right to do this. We didn't
make any promises, rewards, inducements; we just chose not to use
the . . . information. I'm not going to quantify whether it was
- 35 -
accurate, inaccurate. It was just information [Doe] provided us
and we said we would consider it . . . and we chose not to use
it."
Defense counsel responded that there was evidence that
Doe's name did in fact appear on a witness list and, apparently,
that the witness list made its way to the facility where Doe was
awaiting sentencing -- placing his life in danger. In response,
the court simply stated, "[a]ll right," sealed the transcript, and
adjourned the proceedings. The court said nothing about the
substance of what it had just heard.
Remarkably, the majority reads the district court's
silence as a decision. That is, my colleagues read the post-
sentencing record as establishing that the government provided "a
facially valid reason" for refusing to file a substantial
assistance motion, and "[c]onsequently, we cannot say that the
district court abused its discretion in declining to hold an
evidentiary hearing."
There is a major problem with the majority's conclusion.
There is simply no indication in the record that the district court
exercised any discretion whatsoever, pre- or post-sentencing. The
court did not weigh the issues, engage in any back and forth with
the parties, or give any indication that it was considering the
arguments presented. It simply allowed the defendant to preserve
the record for appeal and, in fairness, it allowed the government
- 36 -
to do the same. The majority's conclusion that the district court
did anything more is unsupported by the record.
Indeed, in the offer-of-proof sequence that I have
described, the burden-shifting framework of Alegría was inverted.
Doe was compelled to make his "counter-proffer" without knowing
the government's reason for refusing to file a substantial
assistance motion. As I noted earlier, Doe concluded his proffer
by stating,
[o]nly after the government received [Doe's]
assistance and the information did they
decide, "No, no 5K. We don't have to. We
don't even have to give you a reason." I say
they do and case law says they do. If they
say he breached, we want to know how. If they
say he didn't breach, we want to know why they
will not file a 5K.
Thus prompted, the government finally provided a reason. That
simply is not how the Alegría burden-shifting framework is supposed
to work. See 192 F.3d at 186-89.
III.
The district court was obliged -- and failed -- (1) to
hold the government to its burden under Alegría of providing a
facially adequate reason for declining to file a substantial
assistance motion, and (2) after considering the defendant's
response to the government's explanation, to exercise its
discretion to consider whether Doe was entitled to an evidentiary
hearing. The district court's failure to exercise any discretion
- 37 -
was an abuse of discretion. See In re Grand Jury Investigation,
545 F.3d 21, 25 (1st Cir. 2008) ("[A] trial court can abuse its
discretion by failing to exercise that discretion."). The district
court made this error because of its misguided view of the
government's unconstrained authority. Unlike my colleagues, who
do not recognize that failure, I would vacate the judgment and
remand this case to the district court so that it can properly
determine whether Doe is entitled to an evidentiary hearing under
Alegría.
The stakes are high in such determinations. Cooperation
agreements are important to defendants, and they assist law
enforcement in the plea-bargaining process. Their implementation
deserves more careful consideration than the treatment accorded by
the district court and the majority in this case. Hence, I
respectfully dissent.
- 38 -