United States v. Calvin Bernard Cochran

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 26, 2006
No. 06-10609 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00023-CR-FTM-33-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN BERNARD COCHRAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 26, 2006)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Calvin Cochran appeals his sentence for possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Cochran argues
on appeal that the government breached the plea agreement in which it agreed not
to oppose a sentence for Cochran at the low end of the relevant guidelines range,
by advocating a position inconsistent with a low end sentence. Specifically,
Cochran objects to the government’s adding facts about his offense and calling the
district court’s attention to them at his sentencing. Cochran also contends that the
district court did not understand the mandatory requirements of U.S.S.G. §
5G1.3(b) (Nov. 2005) and should have phrased the judgment to deduct the time
Cochran had already served for his state sentence. For the reasons discussed
below, we hold that the government did not breach the plea agreement and
therefore Cochran’s argument concerning U.S.S.G. § 5G1.3(b) is waived by his
plea agreement sentence appeal waiver. Accordingly, we AFFIRM.
I. BACKGROUND
Cochran and the government entered into a plea agreement in which
Cochran agreed to plead guilty to possession of a firearm by a convicted felon as
an armed career criminal in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The
probation officer recommended an enhanced base offense level of 34 pursuant to
the armed career criminal provision of § 4B1.4(b)(3)(A). The government agreed
to not oppose Cochran’s request for a two-level reduction for acceptance of
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responsibility. Further, the government agreed to make a motion pursuant to
U.S.S.G. § 3E1.1(b) for a one-point downward adjustment, creating a final offense
level of 31 with a criminal history category of VI. Cochran’s guideline
imprisonment range was 188-235 months. The government also represented that
“[a]t the time of sentencing, and in the event that no adverse information is
received suggesting such a recommendation to be unwarranted, the United States
will not oppose the defendant’s request to the Court that the defendant receive a
sentence at the low end of the applicable guideline range . . . .” R1-24 at 3-4. The
agreement emphasized that the district court was not bound by these
recommendations. The agreement also provided that:
The United States reserves its right and obligation
to report to the [district court] and the United States
Probation Office all information concerning the
background, character, and conduct of the defendant, to
provide relevant factual information, including the
totality of the defendant’s criminal activities, if any, not
limited to the count to which the defendant pleads, to
respond to comments made by the defendant or
defendant’s counsel, and to correct any misstatements or
inaccuracies. The United States further reserves its right
to make any recommendations it deems appropriate
regarding the disposition of this case, subject to any
limitations set forth herein, if any.
Id. at 9. Additionally, the agreement stated that:
[Cochran] agrees that [the district court] has
jurisdiction and authority to impose any sentence up to
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the statutory maximum and expressly waives the right to
appeal [his] sentence or to challenge it collaterally on any
ground, including the ground that the [district court]
erred in determining the applicable guidelines range
pursuant to the United States Sentencing Guidelines,
except (a) the ground that the sentence exceeds the
defendant’s applicable guidelines range as determined by
the [district court] pursuant to the United States
Sentencing Guidelines; (b) the ground that the sentence
exceeds the statutory maximum penalty; or (c) the
ground that the sentence violates the Eighth Amendment
to the Constitution; . . . .
Id. at 10-11. By entering into the agreement, Cochran acknowledged that he had
numerous felony convictions and that:
On August 19, 2004, . . . the Fort Myers Police
Department received a complaint of a possible assault in
progress . . . . The complainant provided Florida tag
number X62719 and indicated it was attached to a silver
vehicle involved in the assault. A registration check on
the tag number . . . showed it registered to a 1990 Buick
Regal listed as stolen.
[A Fort Myers Police officer] arrived in the area
minutes later and observed a gray Buick . . . [and] . . . a
single black male occupant in the vehicle. The driver of
the vehicle, later identified as Calvin Bernard Cochran,
spotted [the officer] . . . and made a quick turn . . . [the
officer] was able to catch up to the Buick . . . [and]
confirmed the tag on the vehicle was X62719 . . . .
Cochran ignored [the officer’s] attempt to stop him and
accelerated away from him and began a series of turns in
an attempt to escape . . . Cochran continued . . . [until] he
impacted with stop sticks . . . . The stop sticks . . .
flattened the right front tire of the vehicle . . . [and]
Cochran continued to attempt to flee and put the vehicle
in reverse and spun it away from [the officer]. Cochran .
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. . then fled from the vehicle on foot[,] . . . ran through
the front entrance of [a house,] and shut the door behind
him. [The officer] believed that Cochran had entered this
home illegally and attempted to open the front door, but
Cochran blocked his efforts temporarily. [The officer]
was able to make entry through the front entrance
causing Cochran to flee into a back bedroom where he
locked the door. [The officer] bre[a]ched this door and
ordered Cochran to the ground. Cochran continued to
resist . . . and was forcibly taken to the ground . . . .
[B]ackup officers secured the vehicle . . . [and]
observe[d] a silver revolver sticking out from under the
front center armrest of the vehicle . . . .
The . . . revolver was manufactured in Connecticut.
The presence of this item in Florida proves Cochran
possessed it in or affecting commerce. Cochran
knowingly possessed the firearm at the time he was
confronted and eventually apprehended . . . . According
to the Florida Department of Clemency, there is no
record of restoration of the civil right to possess a firearm
for Cochran.
Id. at 12-16.
At his change-of-plea hearing, Cochran stated that he read and understood
the plea agreement before signing it. Cochran understood that the court was not
bound by the recommendations or facts contained in the agreement and that it
could sentence him based on what the it believed to be correct. The magistrate
judge reviewed the terms and consequences of the sentence appeal waiver in the
plea agreement, and Cochran stated that he understood them. Cochran agreed with
the facts contained in the plea agreement and pled guilty to the charge.
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In the presentence investigation report (PSI) the probation officer also
reported that Cochran was then serving a three-year, two-month Florida state
sentence for fleeing, possession of cocaine and marijuana, and grand theft of an
automobile, charges stemming from the same conduct as the instant offense. The
PSI also stated that U.S.S.G. § 5G1.3 applied to the offense.
The government objected to the PSI, proposing to add additional facts that
had no impact on the advisory guidelines. The government contended that
paragraph six should include the statement of a witness, Geoff Griggs, who
observed the silver vehicle Cochran was driving chasing a small white compact
car. The driver of the silver vehicle shot at the white car three times. Griggs
observed that the driver of the silver car had a nickel or chrome revolver. Griggs
recorded the license tag number X62719 and provided it to police after calling 911.
The government indicated that if Cochran objected to these facts, the government
would object to an sentence adjustment for acceptance of responsibility. Cochran
objected to the inclusion of the additional facts, stating that all pertinent facts were
in the plea agreement.
At sentencing, the government noted that the original PSI fixed the adjusted
offense level of 33 and that it wanted to add facts to the PSI that would raise
Cochran’s offense level to 34. The government reiterated the facts contained in its
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objection to the PSI and argued that these acts constituted either aggravated assault
or attempted second degree murder under Florida law. It urged the court to find
that Cochran possessed a firearm in connection with a violent crime.
Cochran objected to the inclusion of those facts and protested that the
government breached the plea agreement. Cochran agreed that he should have an
adjusted criminal offense level of 34 with a three-level reduction for acceptance of
responsibility. Cochran explained that he pled guilty in Florida state court to four
charges stemming from the conduct of the instant offense and that those charges
did not include aggravated assault or attempted second-degree murder. The factual
basis contained in the plea agreement did not support charges of attempted second-
degree murder and aggravated assault. Cochran posited that the government’s
attempt to insert additional facts that did not change the guidelines scoring in the
PSI was inconsistent with its promise not to oppose a low-end guidelines sentence.
Cochran asserted that the government furthered its breach by insisting that it would
oppose a reduction in Cochran’s sentence for acceptance of responsibility if he
objected to these new facts.
The government responded that the plea agreement allowed the government
to introduce these additional facts because it was only including all pertinent facts
relating to the assault already mentioned in the PSI. The government explained
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that it could not previously locate Griggs and that it was recently able to locate him
and obtain a statement. The government did not realize that fleeing and eluding
constituted a violent crime, so it included the assault witnessed by Griggs because
it also constituted a violent crime. The government conceded that the original PSI
only gave Cochran an offense level of 33, but Cochran agreed to use his state
fleeing and eluding charge as a violent crime to reach an offense level of 34. The
government argued that the additional facts constituted relevant conduct and that
Cochran could lose acceptance of responsibility for objecting to them.
Cochran responded that the facts in the plea agreement already produced an
offense level of 34 and were unnecessary. The district court sustained the
government’s objection to the facts contained in the PSI and allowed it to introduce
the additional facts in the addendum. Cochran objected to the court’s ruling.
When the court asked the prosecutor about an appropriate sentence for
Cochran, the prosecutor stated he “st[oo]d by [his] concession in the plea
agreement.” R3 at 42-43. When asked to reaffirm the government’s concession,
the prosecutor specified that he had “[n]o objection to the low end of the
guidelines,” adding, “[a]nd I would just ask the Court to take into consideration all
the facts as presently contained in the presentence report.” Id. at 43. The court
gave Cochran a 211-month sentence that was to be served concurrently with his
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state prison sentence. The court opined that it did not find any mitigating or
aggravating circumstances and that Cochran had an extensive criminal record, so a
middle-of-the-guidelines range sentence was appropriate. Further, the sentencing
judge reiterated that the government’s low-end recommendation was non-binding
and she did not think it was an appropriate sentence.
Cochran requested that the district court’s judgment subtract the 16 months
and 9 days that he had already served for his state convictions from the 211-month
sentence pursuant to U.S.S.G. § 5G1.3(b). The government objected to Cochran’s
request because the district court had not determined that the Federal Bureau of
Prisons (“BOP”) was unable to credit the concurrent sentence properly, as required
by § 5G1.3(b). The government further advised that Cochran’s time served was
not for a gun charge, but for fleeing and drug charges. Cochran responded that
drafting the judgment in this way did not diminish Cochran’s sentence and that his
state sentence stemmed from the same criminal episode as the federal offense. The
court found that the BOP could give Cochran the proper credit for his state
sentence and refused to alter the judgment. Cochran objected to the court’s ruling
and stated that the BOP would not take his state sentence into account.
II. DISCUSSION
Generally, the issue of whether the government breached a plea agreement is
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a question of law reviewed de novo. United States v. Mahique, 150 F.3d 1330,
1332 (11th Cir. 1998) (per curiam). A material promise by the government, which
induces the defendant to plead guilty, binds the government to that promise.
Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499 (1971). Whether
the court considered or was influenced by the government’s position on the
sentencing issue is not relevant. See United States v. Johnson, 132 F.3d 628, 630
(11th Cir. 1998) (per curiam).
For the government to “unequivocally promise[]” that it would make a
particular sentencing recommendation, and then advocate a position incompatible
with the fulfillment of that promise is a clear breach of a plea agreement. United
States v. Taylor, 77 F.3d 368, 370-371 (11th Cir. 1996). A recommendation by the
government that merely provides “lip service” to the plea agreement does not
rectify the breach. Id. at 371 (citations omitted). The solemnization of a plea
agreement, however, does not preclude the government from disclosing pertinent
information to the sentencing court. United States v. Boatner, 966 F.2d 1575, 1578
(11th Cir. 1992) (citations omitted).
Whether the government violated the agreement is judged according to the
defendant’s reasonable understanding of the agreement at the time he entered the
plea. United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). If the
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government disputes the defendant’s understanding, however, we determine the
terms of the agreement according to objective standards. Id. When a breach of an
agreement by the government has been established, we may either order specific
performance of the agreement, by means of resentencing before a different judge,
or allow withdrawal of the plea. Santobello, 404 U.S. at 262-63, 92 S.Ct. at 499.
In this case, the government did not breach the plea agreement. Cochran
reasonably understood the agreement to require the government not to oppose a
sentence at the low end of the guidelines range, and not to take a position contrary
to that requirement. Similar to the plea agreement in United States v. Levy,
Cochran’s plea agreement did not bind the government to refrain from providing
only certain factual information. See 374 F.3d 1023, 1030 (11th Cir. 2004) (per
curiam), vacated on other grounds, Levy v. United States, 543 U.S. ___, 125 S.Ct.
2542 (2005).
Nothing prevented the parties from entering into a binding agreement that
restricted the facts upon which the substantive offense was based. See Boatner,
966 F.2d at 1578 (citing United States v. Nelson, 837 F.2d 1519, 1522-1525 (11th
Cir. 1988)). The plea agreement here, however, stated that the government
“reserves its right and obligation to report to the Court and the United States
Probation Office all information concerning the background, character, and
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conduct of the defendant, to provide relevant factual information, including the
totality of the defendant’s criminal activities, if any, not limited to the count to
which the defendant pleads . . . .” R1-24 at 9. As a result, Cochran should have
understood the government’s right to report facts about his offense. Therefore, the
government did not breach the plea agreement by introducing the facts disclosed
by its witness, Griggs, because the plea agreement gave the government the right to
report relevant factual information, including the totality of Cochran’s criminal
activities. See United States v. Carrazana, 921 F.2d 1557, 1569 (11th Cir. 1991).
The government also did not breach the plea agreement when the court
asked it to recommend a sentence. The government responded that it did not
oppose a sentence at the low-end of the advisory guidelines range, but asked the
court to consider all of the facts contained in the PSI. The government did not
explicitly advocate that the court sentence Cochran above the low end of the
guideline range, and the government did not openly oppose the promises made in
the plea agreement.
Taylor, Rewis, and Johnson are distinguishable from this case. In both
Taylor and Rewis, the government affirmatively advocated positions that
contradicted its express obligations under the plea agreements. In Rewis, the
agreement limited the government’s right of allocution of facts relevant to the
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current offenses and foreclosed the government from suggesting any sentence.
969 F.2d at 988. The government there, however, stepped outside those bounds by
emphasizing evidence not related to the offenses and made statements, although
not specific, that suggested a harsh sentence. Id. In Johnson, the prosecutor
“became an enthusiastic advocate for a ‘fact’ at odds with the ‘fact’ to which he
had stipulated.” 132 F.3d at 631.
Here, the government never explicitly advocated “a position requiring a
greater sentence ” than the “low end” of the advisory guidelines. See Taylor, 77
F.3d at 370. Furthermore, the factual information the government presented was
not specifically precluded by the plea agreement, did not contradict stipulated
facts, and was relevant to the totality of Cochran’s criminal activities. See Boatner,
966 F.2d at 1579 (government violated plea agreement by endorsing information
that was specifically precluded by the plea agreement). Cochran fails to cite a
promise in his plea agreement that was breached when the government added these
particular facts about his offense and called the court’s attention to them at his
sentencing.
Cochran also argues that the court did not understand the mandatory
requirements of U.S.S.G. § 5G1.3(b) and should have fashioned the judgment to
deduct the time Cochran had already served for his state sentence. Cochran claims
13
that this argument is not a guidelines issue; rather, the district court erred in
drafting the judgment. In response, the government argues that Cochran waived
this challenge in his plea agreement.
We review the validity of an appeal waiver provision of a plea agreement de
novo. United States v. Weaver, 275 F.3d 1320, 1333 n. 21 (11th Cir. 2001). An
appeal waiver is valid if it was entered into knowingly and voluntarily. United
States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). For an appeal wavier to
be enforced, the government must show that either: (1) the court specifically
questioned the defendant concerning the sentence appeal waiver during the plea
hearing, or (2) it is manifestly clear from the record that the defendant otherwise
understood the full significance of the waiver. Id. at 1351. “A waiver of the right
to appeal includes a waiver of the right to appeal difficult or debatable legal
issues-indeed, it includes a waiver of the right to appeal blatant error.” United
States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999).
The sentence appeal waiver in Cochran’s plea agreement precludes us from
considering this issue. Cochran challenges his sentence on the ground that the
court did not properly adjust it for time he had served on his state conviction as
required by U.S.S.G. § 5G1.3(b). Cochran waived all challenges to his sentence
except for challenges that the sentence (1) exceeded the applicable guidelines
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range; (2) exceeded the maximum statutory penalty; (3) or violated the Eighth
Amendment of the Constitution. The court questioned Cochran about the waiver
in his plea agreement and Cochran stated that he understood it. Cochran’s sentence
was within the guidelines range and therefore did not exceed the statutory
maximum. Also, Cochran does not challenge his sentence on Eighth Amendment
grounds. Cochran’s argument that he is only challenging the court’s judgment is
meritless. His appeal directly challenges the court’s application of sentencing
guidelines provisions as to the length of his federal sentence, and is therefore a
challenge to his sentence. Accordingly, Cochran waived his argument concerning
the court’s application of U.S.S.G. § 5G1.3(b).
We conclude the government did not breach the plea agreement, and the
sentence appeal waiver in plea agreement precludes us from considering the
application of U.S.S.G. § 5G1.3(b). Accordingly, we AFFIRM.
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