923 F.3d 228
1st Cir.2019Background
- Barry Davis pleaded guilty to multiple sex-trafficking and related counts pursuant to a plea agreement that: (a) dismissed three counts (including one involving a minor), (b) agreed the parties would treat three victim-groups as the basis for count-grouping for guideline purposes, and (c) reserved the government’s right to provide the Court and Probation with "accurate and complete information regarding this case." The agreement included an appellate-waiver of sentences within the agreed range (180–240 months) but preserved a claim of prosecutor misconduct.
- Probation’s PSR treated five women as victims (not three), raised Davis’s total offense level and criminal-history points, and recommended a higher guideline range (292–365 months). The government did not object to Probation’s calculations pre-sentencing.
- At sentencing the district court adopted an offense level and CHC producing a guideline range (210–262 months) within the plea range, heard victim-impact statements (including statements from A.O. (a victim whose counts were dismissed) and C.G. (uncharged)), and imposed a 216-month sentence.
- Davis appealed, principally arguing the government breached the plea agreement by submitting/using information about dismissed or uncharged victims and by presenting those victims’ statements at sentencing; he also argued he lacked adequate notice of new facts in the victim statements.
- The First Circuit analyzed preservation (de novo for preserved claims; plain-error for unpreserved), the scope of the plea agreement (particularly the government’s reservation to provide accurate information), the appellate waiver, and whether any error affected substantial rights or warranted relief.
Issues
| Issue | Plaintiff's Argument (Davis) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether government breached plea agreement by presenting statements of A.O. and C.G. at sentencing | Presentation of statements by a dismissed-victim (A.O.) and an uncharged victim (C.G.) violated the parties’ understanding that only three victims would be used for guideline/count-grouping and was a breach | Plea explicitly reserved government’s right to provide the court and Probation with accurate, complete information; presenting victim statements did not undermine the bargained-for sentence range | No breach: de novo review—government did not violate the plea agreement by presenting those statements |
| Whether government breached plea agreement by pre-hearing conduct (submitting offense statement to Probation, not objecting to PSR, framing sentencing memo) | Submission of extra-victim facts to Probation and silence on PSR enabled Probation to calculate a higher guideline range, undermining the plea deal | Agreement reserved right to provide complete information; government repeatedly advocated for the agreed maximum (240 months) at sentencing | Plain-error review—no clear or obvious breach; defendant failed to preserve these claims at sentencing and cannot show plain error |
| Whether Davis’s appellate waiver bars review of the breach and notice claims | Appellate waiver should not bar review of prosecutorial misconduct or claims that would entitle relief; his misconduct exception applies | Waiver covers sentences within agreed range; exception applies to misconduct claims but otherwise bars unpreserved claims unless miscarriage of justice | Waiver did not bar the preserved breach claim (misconduct exception applied). Waiver barred the unpreserved notice claim because no miscarriage of justice shown |
| Whether Davis received inadequate notice of new factual material in victim statements at sentencing | Victim statements introduced new facts he could not meaningfully challenge; counsel had insufficient time to respond | Defense knew victim-impact statements would be offered; counsel had opportunity to request continuance and did not; no indication court materially relied on new facts | Appellate waiver bars this unpreserved claim; even if considered, no clear miscarriage of justice—court did not materially rely on new facts and defense did not request time to respond |
Key Cases Cited
- United States v. Morales-Arroyo, 854 F.3d 118 (1st Cir. 2017) (interpret plea agreement language literally; misconduct exception to appellate waiver)
- United States v. Almonte-Nuñez, 771 F.3d 84 (1st Cir. 2014) (plea agreements construed as contracts; government must still be able to provide sentencing information)
- United States v. Miranda-Martinez, 790 F.3d 270 (1st Cir. 2015) (tension between prosecutor’s duty to provide sentencing information and implicit bargains in plea deals)
- United States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005) (limitations on what plea agreements may restrict at sentencing)
- United States v. Gonczy, 357 F.3d 50 (1st Cir. 2004) (government breached plea where prosecutor only paid lip service to agreed recommendation and argued for higher sentence)
- Puckett v. United States, 556 U.S. 129 (2009) (plain-error review for forfeited objections at sentencing)
- United States v. Millán-Isaac, 749 F.3d 57 (1st Cir. 2014) (court must materially rely on challenged facts for notice error to be reversible)
- United States v. Teeter, 257 F.3d 14 (1st Cir. 2001) (miscarriage of justice exception to appellate-waiver enforcement should be applied sparingly)