United States v. Curtis Cluff
2017 U.S. App. LEXIS 8732
| 5th Cir. | 2017Background
- Curtis Cluff, charged with cocaine conspiracy and cash-smuggling-related counts, became a DEA confidential informant in 2012 and cooperated until March 2014; he later pleaded guilty to the conspiracy count and entered a plea agreement.
- Plea agreement: Government would move to dismiss count two; recommend a two-level reduction for acceptance of responsibility if Cluff accepted responsibility per the Guidelines; recommend a one-level timeliness reduction; cap attributable cocaine to 65.32 kg; not seek money-judgment forfeiture; and possibly move under U.S.S.G. § 5K1.1 for substantial assistance.
- The PSR attributed 615 kg and recommended a leadership enhancement, producing a Guidelines range of 360 months–life; Cluff objected and sought acceptance and safety-valve relief.
- At the first sentencing hearing, Cluff testified he believed agents had promised he would not be prosecuted for cooperating; the AUSA denied making such a promise. The Government then filed a modified § 5K1.1 motion asserting Cluff made materially false statements and withdrew its acceptance recommendation, seeking a two-level obstruction enhancement.
- At the second hearing the court found Cluff’s statement was materially false, denied acceptance-of-responsibility credit, applied a two-level obstruction enhancement, granted a § 5K1.1 downward departure, and sentenced Cluff to 99 months. Cluff moved for a new trial claiming breach of the plea agreement; the district court denied the motion.
Issues
| Issue | Plaintiff's Argument (Cluff) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether the Government breached the plea agreement by withdrawing its recommendation for acceptance-of-responsibility credit | Cluff: Gov't promised to recommend the 2-level reduction and breached by withdrawing it at sentencing | Gov't: Recommendation was conditioned on Cluff accepting responsibility as contemplated by the Guidelines; Cluff’s materially false testimony relieved Gov't of that obligation | Court: No breach — condition unmet because Cluff made a materially false statement, so Gov't properly withdrew the recommendation |
| Whether the Government breached by seeking a 2-level obstruction enhancement | Cluff: Agreement implicitly precluded Gov't from seeking enhancements not listed, citing Munoz | Gov't: Plea reserved right to dispute sentencing facts; agreement did not stipulate total offense level, so Gov't may argue enhancements | Court: No breach — plea did not fix total offense level; reservation to dispute sentencing factors permits arguing obstruction enhancement |
| Whether judicial estoppel barred the Government from seeking the obstruction enhancement | Cluff: Gov't previously took a different position and convinced the court, so it should be estopped from changing positions | Gov't: Any prior positions were not accepted as final by the court; district court made no ruling to be relied upon | Court: No estoppel — court had not accepted an earlier position; issues were undecided until re-sentencing |
| Whether Government’s conduct amounted to prosecutorial vindictiveness | Cluff: Gov't shifted positions after he filed a motion to dismiss and threatened consequences, indicating vindictiveness | Gov't: Actions were responses to Cluff’s false testimony and were not punitive; still filed § 5K1.1 motion | Court: No vindictiveness — no objective evidence of punitive motive; actions were explained by false statements and plea terms |
Key Cases Cited
- Purser v. United States, 747 F.3d 284 (5th Cir. 2014) (breach-of-plea-agreement claims may survive appellate waivers)
- Mejia v. United States, 24 F.3d 239 (5th Cir. 1994) (no breach where defendant’s conduct/minimizing role precluded acceptance-of-responsibility)
- Munoz v. United States, 408 F.3d 222 (5th Cir. 2005) (implied promise not to seek enhancements where parties stipulated total offense level)
- Pizzolato v. United States, 655 F.3d 403 (5th Cir. 2011) (appellate courts accept district court’s factual findings unless clearly erroneous)
- Quintero v. United States, 618 F.3d 746 (7th Cir. 2010) (obstruction enhancement generally militates against acceptance-of-responsibility credit)