The Government properly concedes that appellant was denied the entire
benefit of his plea agreement because it breached the agreement when the
prosecutor strongly endorsed the probations officer's recommendation (in
the PSI) that the court enhance appellant's base offense level under sections
2K2.1(b)(3) and 3C1.1 of the Guidelines. The breach bore fruit, in the form
of error, in that the two sections related to conduct wholly unrelated to
the offense to which appellant had plead guilty, possession of a firearm
by a convicted felon. The prosecutor knew that the application of those
sections would constitute error. What's more, he knew that by urging the
court to apply them, he - that is, the Government - was breaching the plea
agreement then and there. And, he must have known that because he was an officer
of the court, who regularly appeared before the court as an attorney for
the United States, the court might be inclined to accept his representations
as reliable, as constituting a correct statement of the law, and act accordingly
- which, indeed, is exactly what the court did. We therefore vacate the
district court's judgment, and remand the case for a new sentencing hearing.
VACATED and REMANDED, for further proceedings.
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY GRAZIANO
ROMANO, Defendant-Appellant.
No. 00-11505
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2002 U.S. App. LEXIS 26427;16 Fla. L. Weekly Fed. C 130
December 20, 2002, Decided
December 20, 2002, Filed
PRIOR HISTORY: [*1] Appeal from the United
States District Court for the Middle District of Florida. D. C. Docket
No. 99-00208-CR-ORL-22-B. Anne C. Conway, Judge.
DISPOSITION: Vacated and remanded.
COUNSEL: For Romano, Anthony Graziano, Appellant: Rex Curry,
Attorney at Law, Tampa, FL.
For United States of America, Appellee: Gable, Karen L., Orlando, FL.
Phipps, Tamra, U.S. Attorney's Office, M.D. of Florida, Tampa, FL. Tylke,
Roberta Josephina, Assistant U.S. Attorney/Middle Dist. of FL, Orlando,
FL. Raab, Susan Humes, United States Attorney's Office, Jacksonville, FL.
JUDGES: Before TJOFLAT, RONEY and FAY, Circuit Judges.
OPINIONBY: TJOFLAT
OPINION: TJOFLAT, Circuit Judge:
On October 19, 1999, a Middle District of Florida grand jury returned
a two-count indictment against appellant, charging him, in Count One, with
possession of a Ruger Mini-14 .223 caliber semi-automatic rifle in September
1998, (n1, footnote 1) after having been convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1), and, in Count Two, with possession of a destructive
device on May 11, 1998, that had not been registered to appellant in the
National Firearms Registration and Transfer Records, in violation of 26 U.S.C.
§§ 5841, 5845(a)(8), (f), 5861(d), and 5871.
On December 16, 1999, pursuant to a plea agreement, appellant pled
guilty to the Count One offense, and agreed to pay $ 400 in restitution
to Diane Setordepour. In the agreement, the Government promised not to
oppose at sentencing appellant's requests that: (1) the court set the base
offense level at level 14, pursuant to United States Sentencing Commission,
Guidelines Manual, § 2K2.1(a)(6) (Nov. 1, 1998) (possession of a firearm
by a "prohibited person"); (2) that the court adjust the base offense level
to level 19 pursuant to U.S.S.G. §§ 2K2.1(b)(1)(A)(offense involving
3-4 firearms), 2K2.1(b)(4) (offense involving a stolen firearm), and 3B1.4
(using a minor to commit a crime); and (3) that the court adjust level 19
downward for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1,
provided that subsequent adverse information did not render such adjustment
"unwarranted."
In the Presentence Investigation Report (PSI), the probation officer
assigned to the case fixed the base offense level of the Count One offense
at 14 and adjusted it upward to level 19, all in conformance with the plea
agreement. The PSI, however, made two other adjustments - each providing
a two-level [*3] increase of the base offense level - which
the parties had not contemplated, because they related to the Count Two
offense, which would be dismissed at sentencing. The probation officer
made these adjustments pursuant to U.S.S.G. § 2K2.1(b)(3), because
the "offense" involved a destructive device, and U.S.S.G. § 3C1.1,
because appellant had obstructed justice. Since the probation officer gave
appellant no credit for acceptance of responsibility, the PSI set the adjusted
offense level at level 23. Coupled with a criminal history score of V, the
Guidelines prescribed a prison sentence for a term of somewhere between
84 to 105 months.
Appellant interposed several objections to the PSI, among them that
the adjusted offense level should not have included the two-level increases
provided by sections 2K2.1(b)(3) and 3C1.1, since those increases were based
on conduct involved in the Count Two offense, which was to be dismissed.
The probation officer (who prepared the PSI) stated in the Addendum to the
PSI that, due to the constraints of time, he had been unable to hold a "position
of parties meeting" (for the purpose of discussing appellant's objections).
Because he had been unable to hold [*4] the meeting, the probation
officer, in the Addendum, adhered to the PSI as written, noting that the
Government "agreed" with his use of sections 2K2.1(b)(3) and 3C1.1 to enhance
the base offense level.
At the sentencing hearing, appellant renewed his objection to the sections
2K2.1(b)(3) and 3C1.1 enhancements, arguing that they related solely to
the Count Two offense and, therefore, were irrelevant. The prosecutor acknowledged
that, in negotiating the plea agreement, the parties had not contemplated
that appellant's base offense level would be enhanced for conduct that
related not to Count One, but to Count Two, which was not before the court.
The prosecutor nonetheless urged the court to apply the two Guidelines enhancements,
and the court did so. In addition, the prosecutor urged the court to depart
upwardly from the Guildelines sentence range (recommended in the PSI) on
the ground that "a criminal history category of five does not adequately
represent the defendant's prior criminal conduct . . . we are suggesting
. . . that there is a basis to move up to the next level on a guided departure
to a criminal history category of six." After saying this, the prosecutor
proceeded to [*5] argue at length (in five pages of the sentencing
transcript) why the court should depart. The court rejected the prosecutor's
request, adopted the factual recitations of the PSI and the Guidelines
sentence range it prescribed, and, after affording appellant his right
of allocution, sentenced him to a prison term of 105 months and dismissed
Count Two of the indictment. Six days after the court imposed sentence,
the prosecutor moved the court to order appellant to make the restitution
called for in the plea agreement. Twenty-three days later, the court entered
the requested restitution order.
In this appeal, appellant contends that the Government breached the
plea agreement by urging the court to consider information wholly unrelated
to the Count One offense and, based on such information, to enhance the
Count One base offense level by a total of four levels pursuant to sections
2K2.1(b)(3) and 3C1.1 of the Guidelines. In response, the Government notes
that appellant failed to raise this issue before the district court. The
Government is right; hence, we review appellant's contention for plain
error. We note plain error if (1) error occurred, (2) the error is plain,
(3) affects the [*6] defendant's substantial rights, and (4)
seriously affects the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Candelario, 240 F.3d 1300, 1308-09
(11th Cir.), cert. denied, 533 U.S. 922, 121 S. Ct. 2535, 150 L. Ed. 2d
705 (2001).
The Government properly concedes that appellant was denied the entire
benefit of his plea agreement because it breached the agreement when the
prosecutor strongly endorsed the probations officer's recommendation (in
the PSI) that the court enhance appellant's base offense level under sections
2K2.1(b)(3) and 3C1.1 of the Guidelines. The breach bore fruit, in the form
of error, in that the two sections related to conduct wholly unrelated to
the offense to which appellant had plead guilty, possession of a firearm
by a convicted felon. The prosecutor knew that the application of those
sections would constitute error. What's more, he knew that by urging the
court to apply them, he - that is, the Government - was breaching the plea
agreement then and there. And, he must have known that because he was an officer
of the court, who regularly appeared before the court as an attorney for
the United [*7] States, the court might be inclined to accept
his representations as reliable, as constituting a correct statement of the
law, and act accordingly - which, indeed, is exactly what the court did.
n2
Because the error was "plain," we must ask whether it affected appellant's
substantial rights. The sentence range the Guidelines prescribes for an
offense level of 23 (the level the court used) and a criminal history category
of V is 84 to 105 months. The sentence range prescribed by an offense level
of 19 - the level yielded by omitting the section 2K2.1(b)(3) and 3C1.1
enhancements - is 57 to 71 months. We have no difficulty in concluding
that the use of the higher sentence range affected appellant's substantial
rights. Finally, we ask whether the plain error seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.
More specifically, the question is whether the prosecutor's conduct produced
such affect. We think it obvious that it did.
We therefore vacate the district court's judgment, and remand the case
for a new sentencing hearing. n3
n1 footnote 1 Such possession began on September 26, 1998 and ended on
October 4, 1998, when appellant voluntarily surrendered the semi-automatic
rifle firearm (along with two other firearms) to deputies of the Orange
County, Florida sheriff's office.
n2 The prosecutor's final act - in his effort to obtain a sentence far
beyond what the parties contemplated when they executed the plea agreement
- was to urge the court to depart from the Guidelines sentence range, by
increasing appellant's criminal history category from V to VI. United States
v. Burns, 501 U.S. 129, 139, 111 S. Ct. 2182, 2187, 115 L. Ed. 2d 123 (1991),
teaches that the defendant must be given "reasonable notice" that the court
is contemplating an upward departure from the Guidelines sentence range.
In United States v. Hunerlach, 258 F.3d 1282, 1287 (11th Cir. 2001), we explained
Burns as follows:
"This notice must specifically identify the ground on which the district
court is contemplating an upward departure." [Burns, 501 U.S.] at 138-39,
111 S. Ct. at 2182. This Court has held that Burns requires that the notice
"must affirmatively indicate that an upward departure is appropriate based
on a particular ground" and that the defendant must be provided with notice
"setting forth the potential ground (or grounds) for the upward departure
within a 'reasonable' amount of time prior to the sentencing hearing."
United States v. Paslay, 971 F.2d 667, 673-74 n.11 (11th Cir. 1992).
In this case, the court had not provided appellant with notice that
it was considering a departure. Thus, had the court bowed to the prosecutor's
urging and departed from the prescribed Guidelines sentence range, the
court would have committed error that was plain. As noted above, though,
the court declined the prosecutor's invitation.
n3 Appellant challenges the court's untimely entry of the restitution
order. Given our disposition, we need not deal with the restitution aspect
of the case. The court, on remand, should consider the restitution issue
anew. Appellant also contends that he received ineffective assistance at
sentencing. His claim is moot; moreover, such claims should be brought in
a collateral proceeding under 28 U.S.C. § 2255.
The above case was also cited by 7 other cases
US v. De La Garza, 516 F. 3d 1266 (11th Cir. 2008)
http://scholar.google.com/scholar_case?case=11228292603546889&hl=en&as_sdt=40000
US v. Velez, 357 F. 3d 239 (2nd Cir. 2004)
http://scholar.google.com/scholar_case?case=4277013719399623869&hl=en&as_sdt=40000
United States v. Woody Daniel Franklin, No. 07-14087 (11th Cir. May 29,
2008)
http://scholar.google.com/scholar_case?case=3081806861712917416&hl=en&as_sdt=40000
United States v. Yasmani Lazo, No. 08-10681 (11th Cir. August 8, 2008)
http://scholar.google.com/scholar_case?case=249649997400426391&hl=en&as_sdt=40000
US v. Geronimo Enrique Gastelum, No. 09-11440 (11th Cir. November 17, 2009)
http://scholar.google.com/scholar_case?case=17876269408864668597&hl=en&as_sdt=40000
United States v. Damaris Cruz, No. 08-10673 (11 Cir. November 17, 2008)
http://scholar.google.com/scholar_case?case=2452031652210934650&hl=en&as_sdt=40000
"Because De La Garza failed to raise this issue before the district court,
however, we review for plain error."
- in US v. De La Garza, 2008 and 2 similar citations
"Under plain error review, there must be (1) an error,(2) that is plain,(3)
that affects the defendant's substantial rights, and (4) that seriously
affects the fairness, integrity, or public reputation of judicial proceedings."
- in US v. Gastelum, 2009 and one similar citation
"Moreover, even if the government's change in position regarding an adjustment
for acceptance of responsibility did constitute a breach of the plea agreement,
Lazo has not shown plain error-the standard applicable here because Lazo
did not voice any objection below to the government's alleged breach of the
plea agreement."
- in United States v. Lazo, 2008
"We review an argument that the government breached a plea agreement, raised
for the first time on appeal, for plain error."
- in United States v. Cruz, 2008