UNITED STATES OF AMERICA, Appellee, v. LOUIS GARDNER, Defendant, Appellant.
No. 19-1584
United States Court of Appeals For the First Circuit
July 20, 2021
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before Lynch, Lipez, and Kayatta, Circuit Judges.
William S. Maddox for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.
LIPEZ, Circuit
I.
Louis Gardner was charged with six related drug and firearm offenses. He and the government negotiated a plea agreement. The agreement explained that “[i]n exchange for the defendant‘s guilty pleas” on three of the six counts, the government “agrees” to certain sentencing stipulations and to dismiss the remaining counts of the indictment.1 It also stated that the parties “stipulate and agree that 120 months’ imprisonment is an appropriate disposition of this case,” and that the parties intended this sentencing stipulation to be “binding” under
The district court duly held a change of plea hearing. The court went over the agreement and confirmed that Gardner understood it and was entering into the plea knowingly and voluntarily. As part of its review, the district court also explained the significance of the stipulated sentence:
THE COURT: All right. So Mr. Gardner, you and the government have agreed that the total sentence that‘s to be imposed in this case is 120 months in prison. That‘s a binding agreement which means if the Court accepts that agreement and imposes that sentence, do you understand you cannot withdraw your guilty plea?
THE DEFENDANT: Yes.
THE COURT: If the court does not accept that binding agreement and does not impose that sentence, do you understand that you would have the opportunity then to withdraw your guilty plea?
THE DEFENDANT: Yes.
In accordance with the agreement, the district court then accepted Gardner‘s guilty plea on the three counts and set a date for sentencing.
While in custody awaiting sentencing, Gardner assaulted a fellow inmate. Citing the breach provision that allowed it to withdraw from the plea agreement if the defendant committed criminal activity before sentencing, the government moved to withdraw. After a hearing, the district court found, by a preponderance of the evidence, that Gardner did indeed commit the assault, granted the government‘s motion to withdraw from the plea agreement, and rescheduled sentencing on the previously-entered plea.
Sixteen days after the government‘s motion to withdraw from the plea agreement was granted, Gardner moved to withdraw the underlying guilty plea. At the hearing on the motion, his counsel argued that, given that “the government has withdrawn from the agreement,” and assuming that “the Court is not going to accept the 120 month[]” stipulated sentence, Gardner “should be allowed the opportunity to withdraw his plea.” The district court denied the motion, stating that, as a matter of fairness, Gardner‘s loss of the stipulated sentence was “a consequence of his own actions,” and “the government‘s withdrawal from the plea agreement because of Gardner‘s breach is not a sufficient reason to permit him to withdraw his guilty pleas.” Then, addressing the fact that the agreement allowed Gardner to withdraw his plea “if the Court will not accept the plea agreement under
After denying Gardner‘s motion to withdraw his plea, the district court proceeded to sentencing. Now unbound by the agreement‘s 120-month stipulation, it applied the Sentencing Guidelines and ultimately imposed a sentence of 160 months. On appeal, Gardner challenges the denial of his motion to withdraw his plea.
II.
Guilty pleas and plea agreements are distinct, governed by different parts of
In general, we review a district court‘s denial of a pre-sentencing motion to withdraw a guilty plea for abuse of discretion. United States v. Rodríguez-Morales, 647 F.3d 395, 397 (1st Cir. 2011). When presented with such a motion, a district court must determine whether there is a “fair and just reason for requesting the withdrawal.”
Gardner‘s argument for allowing his withdrawal turns on the language of his plea agreement. When interpreting a plea agreement, we apply “[b]asic contract principles.” United States v. Newbert, 504 F.3d 180, 185 (1st Cir. 2007). The touchstone is the “defendant‘s reasonable understanding” of the agreement. United States v. Conway, 81 F.3d 15, 17 (1st Cir. 1996).6
Our first task, then, is to determine the parties’ reasonable understanding of the agreement, specifically as to whether Gardner would be permitted to withdraw his guilty plea if the government withdrew from the agreement because of Gardner‘s breach.
In our view, that question is resolved by the agreement itself, which states: “[I]f the Court will not accept the plea agreement under
In denying Gardner‘s motion to withdraw his plea, therefore, the district court misread the “opportunity to withdraw” provision. It first determined that the agreement allowed Gardner to withdraw the plea only if the court “‘reject[ed]’ the plea agreement under
In this case . . . the court did not “reject” the plea agreement under
Rule 11(c)(3)(A) and(c)(5) . In granting the government‘s motion to withdraw from the agreement, the court enforced . . . the plea agreement, which permitted the government to withdraw if Gardner engaged in criminal activity. . . . Gardner cannot transform his breach of the plea agreement, which cost him his right to receive the agreed-upon sentence, into a rejection of the agreement by the court.
We see two difficulties with the court‘s approach. First, while the district court was undoubtedly “enforcing” the agreement by allowing the government to withdraw in light of Gardner‘s breach, that enforcement is only one half of the equation. Both parties to the agreement have a claim to its enforcement. The second question is what impact the government‘s withdrawal had on Gardner‘s rights -- and specifically, whether Gardner remained bound by his guilty plea or had a right to withdraw it.
On that question, the district court, in evaluating whether it “rejected” the agreement, focused on a word that does not appear in the plea agreement. As we have seen, the “opportunity to withdraw” provision is worded differently. It permits withdrawal of the plea if the district court “will not accept the plea agreement under
While not necessarily dispositive, it is telling that the district court seemed to endorse the correct reading of the “opportunity
THE COURT: All right. So Mr. Gardner, you and the government have agreed that the total sentence that‘s to be imposed in this case is 120 months in prison. That‘s a binding agreement which means if the Court accepts that agreement and imposes that sentence, do you understand you cannot withdraw your guilty plea?
THE DEFENDANT: Yes.
THE COURT: If the court does not accept that binding agreement and does not impose that sentence, do you understand that you would have the opportunity then to withdraw your guilty plea?
THE DEFENDANT: Yes.
These statements suggest that, consistent with the agreement, there were two -- and only two -- mutually exclusive outcomes: if the court “accept[ed] the agreement and impose[d] that sentence,” Gardner would not be able to withdraw his guilty plea, whereas if it “d[id] not accept that binding agreement and d[id] not impose that sentence,” Gardner would have the opportunity to withdraw his guilty plea.
The dissent disagrees with our reading of the agreement. It suggests that the agreement “explicitly requires the district court to indicate that it will not accept the agreement” in order to trigger Gardner‘s withdrawal right. However, nothing in the operative phrase (“if the Court will not accept the plea agreement under
The dissent also suggests that “[t]he district court‘s actions demonstrate that it accepted the plea agreement.” That view of what occurred is unsupportable. “Accepting a plea agreement” is a formal act under the Rules and triggers serious consequences and obligations.
Additionally, nothing else in the agreement suggests that the “opportunity to withdraw” provision should not be taken to mean what it says. The breach provision itself says nothing about the defendant‘s right of withdrawal after a breach, explaining
Similarly, nothing in the general law of plea bargaining or our case law precludes Gardner from withdrawing his guilty plea in these circumstances. To the contrary, “it is generally accepted that ‘when a defendant breaches his plea agreement, the Government has the option to either seek specific performance of the agreement or treat it as unenforceable’ (at least absent language in the plea agreement specifying fewer or other remedies).” 5 Wayne R. LaFave et al., Crim. Proc. § 21.2(e) (4th ed. 2020) (quoting United States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004)). In this context, “specific performance” means that the government can enforce the remaining provisions of the agreement and hold the defendant to the guilty plea. See United States v. Alexander, 869 F.2d 91, 94-95 (2d Cir. 1989). If the government instead chooses to treat the entire agreement as unenforceable (sometimes referred to as “cancellation“), the presumption is that the defendant may withdraw his plea, unless “the plea agreement itself . . . describe[s] the government‘s remedies in such a fashion as to foreclose plea withdrawal by the defendant in these circumstances.” 5 Wayne R. LaFave et al., Crim. Proc. § 21.2(e). Here, as we have explained, the plea agreement did not foreclose plea withdrawal by the defendant in the event of his own breach.
The government cites our decision in United States v. Tilley, 964 F.2d 66 (1st Cir. 1992), for the proposition that a defendant should not be able to withdraw a plea because of his own breach of a plea agreement. Like Gardner, Tilley breached his plea agreement by committing a crime (in Tilley‘s case, by perjuring himself before a grand jury and at a criminal trial). Id. at 69. Facing the loss of certain benefits under the agreement, Tilley then moved to withdraw his plea. Id. The district court denied the motion, and we affirmed. Id. at 73. We first determined that the court did not err in finding that Tilley breached the agreement. Id. at 72. Then, after analyzing the appropriate factors, we concluded that the court did not abuse its discretion in finding that there was not a “fair and just reason” to permit withdrawal. Id. at 72-73.
Some of our language in the opinion suggests that Tilley was foreclosed from withdrawing his plea simply because he breached his agreement by committing a crime. See id. at 73 (in arguing for the opportunity to withdraw his plea, we said, Tilley “overlooks the fact that he did indeed violate the plea agreement by engaging in behavior which constitutes a crime“). But as the rest of the opinion makes clear, Tilley‘s holding relies on the specific language of Tilley‘s plea agreement, which provided that, if Tilley violated the agreement, “the Government had the option to declare the agreement null and void, or to bring the failure to fully cooperate to the attention of the court.” Id. at 71 n.17. In response to Tilley‘s breach, the government simply chose the latter, specifically-provided remedy, which did not trigger any right to withdraw the plea. See id. at 73 (“In view of a violation by appellant of the plea agreement, the Government was entitled to bring all factors related to said violation to the attention of the court.“). Here, there is no analogous remedy specified in the plea agreement. The plea agreement
In sum, this is not a case where the plea agreement specifies that “if [the defendant] committed new crimes, he would be bound to his guilty plea even if the Government exercised its right to rescind the [plea] agreement.” United States v. Gregory, 245 F.3d 160, 166 (2d Cir. 2001). To the contrary, the agreement indicated (and the district court confirmed at the change of plea hearing) that Gardner would be able to withdraw his plea if the court did not accept the agreement -- and the court did not accept the agreement.
With that understanding of the agreement in mind, we proceed to consider whether there is a fair and just reason to permit withdrawal of Gardner‘s plea.
IV.
As we have noted, the substantive standard for evaluating a motion to withdraw a guilty plea in the trial court (and the standard that informs our review of the trial court‘s exercise of discretion in denying a motion to withdraw a guilty plea) is whether there was a “fair and just reason” for withdrawal. The relevant considerations include: (1) whether the plea was knowing and voluntary and in compliance with
Three of the considerations favor withdrawal. First, the reason for withdrawal is highly compelling: the agreement explicitly guaranteed Gardner the opportunity to withdraw his plea in these circumstances. This reason is far from a mere “second thought[] about some fact or point of law, or about the wisdom of his earlier decision.” United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994) (citations omitted). Indeed, it goes to the heart of the bargain that Gardner struck with the government.
Second, Gardner moved to withdraw his guilty plea promptly. He did so only sixteen days after the court granted the government‘s motion to withdraw from the plea agreement, when Gardner first learned that the court would not be accepting the agreement. Although we typically measure any delay from the entry of the guilty plea, see Ramos, 810 F.2d at 313, we have recognized that a different approach may be warranted in certain circumstances. For example, we observed that, when a motion to withdraw is motivated by post-plea developments in a separate case, it may not be correct to “rel[y] on the . . . passage of time between the plea and the motion to withdraw it as an indication that [the defendant] was simply employing sharp tactics,” at least when the motion to withdraw “was filed so soon after the events in the [other] case.” United States v. Isom, 580 F.3d 43, 53 n.15 (1st Cir. 2009). In the present circumstances, we consider the sixteen-day delay to be the appropriate measure for evaluating promptness, as Gardner had no reason to move to withdraw earlier. And even though we have held a delay as brief as thirteen days against a defendant, see Ramos, 810 F.2d at 313, the delay here is certainly on the shorter side, and we have countenanced much longer delays when other considerations favor withdrawal, see United States v. Daniels, 821 F.2d 76, 79 (1st Cir. 1987) (allowing withdrawal after ten-week delay).
Third, there does not appear to be any prejudice to the government, beyond the
To be sure, on the negative side of the balance, there are also three factors. Gardner has not advanced any plausible theory of innocence.8 But this deficiency is not fatal; it just “counsels against” allowing withdrawal. United States v. Mercedes Mercedes, 428 F.3d 355, 360 (1st Cir. 2005). Additionally, he unquestionably breached the agreement by committing an assault, a significant breach to be sure. And, finally, there is no
indication that the guilty plea was not “knowing, intelligent, and voluntary” at the time it was made. United States v. Adams, 971 F.3d 22, 38 (1st Cir. 2020). The district court scrupulously followed the technical requirements of
Despite these countervailing considerations, we conclude that the strength of Gardner‘s reason for withdrawal so far outweighs the offsetting factors that the inquiry tilts in his favor. The government failed to recognize that the plea agreement, by its terms, gave Gardner the right to withdraw his plea under the circumstances of this case. That failure, sanctioned by the court with its denial of Gardner‘s motion to withdraw his plea, was tantamount to a breach of the plea agreement by the government. Given the importance of contract principles to the enforcement of plea agreements, see Newbert, 504 F.3d at 185, and the other factors cited in Gardner‘s favor, there was a fair and just reason for the withdrawal of Gardner‘s plea, and the district court abused its discretion in concluding otherwise.9
V.
We close with two additional points. The government and the dissent argue that allowing a plea withdrawal in these circumstances would, effectively, reward Gardner for his own breach. Even worse, the government and dissent suggest, such a decision
We are unpersuaded. In the face of a defendant‘s strategic breach, the government will not be obligated to cancel the agreement and concede to the withdrawal of the plea. Rather, as the non-breaching party, the government will have the option of how to respond. The government might elect specific performance: that is, keep the rest of agreement in place, in which case the defendant would be stuck with the same plea, plus, potentially, additional exposure for a new crime. See Cimino, 381 F.3d at 128 n.3. Alternatively, the government might choose to void the agreement, concede to withdrawal of the original plea, and
“demand[] that [the defendant] either plead guilty a second time or go to trial.” Id. In the latter case, the price is high: a defendant would lose the benefits of the existing plea agreement (including any agreed-upon sentence and benefit for acceptance of responsibility) and, if he breached by committing a crime, face the possibility of a new prosecution.
Additionally, of course, the government can avoid a repetition of the scenario here by being clearer in future plea agreements about the consequences of a defendant‘s breach (i.e., by explicitly specifying in the agreement that the defendant will still be held to the guilty plea even if the government exercises its right to withdraw). See United States v. Rivera, 954 F.2d 122, 125 (2d Cir. 1992) (instructing that “[t]he government should make it absolutely clear in a plea agreement that a breach by the defendant releases the government from its obligation to recommend leniency but does not release the defendant from the plea of guilty“). The prosecution, defendants, and the courts would all benefit from this additional clarity.
VI.
For the reasons set forth herein, Gardner must be permitted to withdraw his guilty plea. We vacate the judgment.
So ordered.
- Dissenting Opinion Follows -
LYNCH, Circuit Judge, dissenting. With respect, I believe the majority got this wrong and departed from controlling law at every key point in its analysis. After entering into a plea agreement, Gardner assaulted a codefendant and possible witness against him. This assault triggered a provision in his plea agreement giving the government, but not Gardner, the right to “consider [Gardner‘s] conduct to be a breach of the Plea Agreement and . . . withdraw” from it. The government exercised this right. The majority opinion allows Gardner to also withdraw from the plea agreement due to his own breach. In doing so, it concludes that the district court never accepted the plea agreement under
The majority begins its analysis by saying that the plea agreement‘s “opportunity to withdraw” provision gives Gardner the right to withdraw his plea. That provision reads: “[I]f the Court will not accept the plea agreement under
When presented with a plea agreement like Gardner‘s,
The majority concedes that the district court never rejected the plea agreement.11 It should have then concluded that the court either deferred acceptance of the agreement or accepted it outright. In either case, that would mean that the “opportunity to withdraw” provision does not apply to Gardner. Instead, the majority erroneously holds that the provision applies (and Gardner can withdraw his plea) because, even though the district court did not reject the agreement, the majority says that the district court did not accept the agreement.12
This holding is inconsistent with the text of the plea agreement. The “opportunity to withdraw” provision says that if the court ”will not accept” the agreement, then the agreement becomes null and void. (Emphasis added). The majority‘s reading ignores the word “will.” Non-acceptance alone would not be enough.13 The agreement explicitly requires the district court to indicate that it will not accept the agreement, something it did not do.
Indeed, it did the opposite. The district court‘s actions demonstrate that it accepted the plea agreement. The district court said it relied on the “facts . . . set forth in the offense conduct paragraph of the plea agreement” when it accepted Gardner‘s guilty plea during his change of plea hearing and later said it was enforcing, not rejecting, the agreement when it allowed the government to withdraw from the agreement due to Gardner‘s breach. See United States v. Soloff, 993 F.3d 240, 244 (4th Cir. 2021) (“Where the record furnishes sufficient evidence to conclude that a district court constructively accepted the plea agreement, the court‘s failure to explicitly
Even if Gardner did have an opportunity to withdraw his guilty plea under the plea agreement, Gardner cannot withdraw this plea unless he can “show a fair and just reason for requesting the withdrawal.”
To determine if a fair and just reason for withdrawal exists, district courts consider five factors: “(1) the timing of defendant‘s change of heart; (2) the force and plausibility of the reason; (3) whether the defendant has asserted his legal innocence; (4) whether the parties had reached (or breached) a plea agreement; and (5) most importantly, whether the defendant‘s guilty plea can still be regarded as voluntary, intelligent, and otherwise in conformity with
to gain personal advantage, not because he made his original plea too hastily.
As to the second factor, Gardner wants to withdraw his guilty plea because he chose to assault his codefendant. The majority‘s holding “would allow the defendant to withdraw his guilty plea simply on a lark” after he “has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea.” Hyde, 520 U.S. at 676. It “debases the judicial proceeding at which a defendant pleads and the court accepts his plea” by “degrad[ing] the otherwise serious act of pleading guilty into something akin to a move in a game of chess.” Id. at 676-77. Allowing defendants to benefit by breaching their plea agreements makes it harder for the government to enforce plea agreements. The majority opinion forces the government to either excuse breaches or void plea agreements and take on the costs and risks associated with allowing defendants to withdraw their guilty pleas. If defendants can escape their plea agreement through intentional breaches, they may choose to gamble on future acquittals by breaching. Encouraging breaches in this way will cause defendants to treat plea agreements as disposable and to take their terms less seriously. The “force and plausibility” of Gardner‘s reason therefore does not support withdrawal. Tilley, 964 F.2d at 72.
The majority agrees that the remaining three factors cut against Gardner. Gardner has made no claim of innocence, “an ‘important factor’ in determining whether there is fair and just reason to allow him to withdraw his plea.” United States v. Daniels, 821 F.2d 76, 79 (1st Cir. 1987) (quoting United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir. 1983)). He admits that he is responsible for breaching the
by the district court, which must be affirmed absent a demonstrable abuse of discretion.“).
Finally, even if a fair and just reason for withdrawal did exist, I strongly disagree that the government‘s mere assertion of prejudice is insufficient. The majority‘s decision will obviously cause harm in general and clearly, quite specifically on the facts of this case. The majority‘s result is not a simple matter of the government reinstating the original charges. The events leading to Gardner‘s prosecution occurred in April 2017, and it is self-evident that the government will be prejudiced by having to prosecute Gardner more than four years after the fact.
The government will likely have difficulty securing witnesses.17 After so much time has passed, it is likely that some witnesses could not reliably testify against Gardner. See United States v. Allard, 926 F.2d 1237, 1243 (1st Cir. 1991) (holding that the fact that a “witness against [the defendant] is no longer available to testify” “clearly . . . constitutes the kind of prejudice that may be considered under . . . the ‘fair and just reason’ standard“); Kobrosky, 711 F.2d at 455 (“The most common
form of prejudice is the difficulty that the government would encounter in reassembling its witnesses; and the longer the delay in moving for a plea withdrawal, the greater this prejudice is likely to be.“). Further, a confidential informant was important to the government‘s case. There is no evidence that this informant is still alive or able to testify against Gardner.
Finally, much of the delay prejudicing the government here is attributable to Gardner, who deliberately prolonged this appeal (perhaps for tactical reasons) by seeking briefing extensions for almost eight months. See Allard, 926 F.2d at 1243 (explaining that “a delay that prejudices the government‘s case is a factor weighing against withdrawal” when “the defendant can be blamed for the delay“). Gardner‘s brief was supposed to be filed in December 2019, before the COVID-19 pandemic. His counsel repeatedly requested extensions, many of which were totally unrelated to the pandemic. In all, he received ten extensions and had to be ordered to file a brief by August 14, 2020. Such delay tactics should not be rewarded.
I respectfully dissent.