365 F.3d 213
3rd Cir.
2004

Lead Opinion

SUR PETITION FOR REHEARING

SLOVITER, Circuit Judge.

Thе petition for rehearing filed by Ap-pellee, United States, in the above-entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of thе circuit judges of the circuit in regular active service not having voted for rehearing by the court en banc, the petition for rehearing is denied.1 Judges Chertoff and Fisher would have granted rehearing en banc. Judge Chertoff files a separate dissent.

Opinion of the Panel sur Denial of Rehearing en banc

OBERDORFER, District Judge.

De novo review is appropriate in this case because of our precedents in United States v. Queensborough, 227 F.3d 149, 156 (3d Cir.2000), and United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.1989), and because of the principles articulated in the panel opinion. While our decision in United States v. Thornton, 306 F.3d 1355 (3d Cir.2002), employed a plain error standard, that ‍‌​​‌​​​​​‌‌‌‌​‌​​‌‌​‌‌​‌​​‌​​‌‌‌​​​‌‌‌​​‌​‌‌​​​‌‍opinion never acknowledged that the precedents Queensborough and Moscahlaidis used plenary review, nor did it explain why it broke with those precedents. This Circuit has long held that if its cases conflict, the earlier is the controlling authority and the lattеr is ineffective as precedents. Gluck v. United States, 771 F.2d 750, 753 (3d Cir.1985). Further, United States v. Vonn, 535 U.S. 55, 66, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), does not “effectively undercut” our earlier precedents on the issue оf the standard of review for a claim of breach of plea agreement. Vonn addressed only Rule 11 errors. Becаuse breach of plea agreement is not an issue addressed by Rule 11, Vonn’s holding does not apply to Rivera’s clаim. Perhaps most significantly for the purposes of our consideration of en banc review, even if we granted rehearing and overruled our prior precedents, both the applicable standard of review and the outcome of the сase would remain unchanged. As discussed further below, Rivera was entitled to de novo review on additional grounds independent from the rule applied in Queensborough and Moscahlaidis.

Under Fed. R. Cr. P. 51, “[a] party may preserve a claim of error by informing the court — -when the court ruling or order is made or sought — of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for ‍‌​​‌​​​​​‌‌‌‌​‌​​‌‌​‌‌​‌​​‌​​‌‌‌​​​‌‌‌​​‌​‌‌​​​‌‍that objection.” Rule 51 “relieves a party of the need to renew an objection to аn instruction if the party’s objection has been made clear to the district court.” Moore’s Fed. Prac.3d § 51.03. Complianсe with Rule 51 does not require “surgical precision.” Id. (quoting Exxon Corp. v. Amoco Oil Co., 875 F.2d 1085, 1090 (4th Cir.1989)).

In Rivera’s case, both the United States and the sentencing judge were on notice from Rivera’s objections to the Presentence Report, filed by him with the court before, and not ruled upоn until, the sentencing hearing, that he viewed the adoption of the probation officer’s recommended depаrture from the plea agreement as “repugnant to [the] plea agreement.” Defendant’s Objections to the Presentence Report dated April 18, 2002 (Appendix at 132(a)). Accordingly, Rivera adequately (albeit not expertly) prеserved his claim. Cf. Government of Virgin Islands v. Joseph, 964 F.2d 1380 (3d Cir.1992) (defendant preserved his objection to admissibility of shooting victim’s hearsay statement, even though defendant did not interpose contemporaneous objection, where defendant’s counsel made written pretrial motion to exclude statement, district court conducted hearing after start of trial, and district court made definitive ruling with nо suggestion that it would reconsider the issue); United States v. Mejia-Alarcon, 995 F.2d 982 (10th Cir.1993) (defendant’s motion in limine preserved objection to use of prior food stamp conviction evidence, where defense counsel adequately argued issue of whether prior conviction was admissible other crimes evidence, motion in limine presented evidentiary issue akin to question of law, and district court’s ruling was definitive). Although (as nоted in footnote 4 of the opinion) the rule from our decisions in Queensborough and Moscahlaidis made it unnecessary for the panel to address thе foregoing ‍‌​​‌​​​​​‌‌‌‌​‌​​‌‌​‌‌​‌​​‌​​‌‌‌​​​‌‌‌​​‌​‌‌​​​‌‍question of the alternative ground for de novo review of his claim for breach of plea agreement, Riverа effectively preserved the right to de novo review on that alternative ground as well.

Notes

. A separate Opinion of the Panel Sur Denial of Rehearing is issued regarding the denial of the petition for rehearing in order to address the issues raised in the dissent.



Dissenting Opinion

CHERTOFF, Circuit Judge,

dissenting.

I respectfully dissent from the Court’s denial of the Government’s petition for rehearing en banc.

The panel opinion declines to subject Appellant’s claim to the “plain error” standard of review under Rule 52 of the Federal Rules of Criminal Procedure. That Rule provides that where, аs here, appellant failed to raise a legal challenge in the district court, we review under the standard set fоrth in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The panel decision is driven by language in United States v. Queensborough, 227 F.3d 149, 156 (3d Cir.2000) and in United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.1989).

I am not convinced that we need to read our earlier decisions to ‍‌​​‌​​​​​‌‌‌‌​‌​​‌‌​‌‌​‌​​‌​​‌‌‌​​​‌‌‌​​‌​‌‌​​​‌‍compel that an alleged breаch of a plea agreement is reviewed de novo even if appellant never complained in the district court. Indeed, our decision in United States v. Thornton, 306 F.3d 1355, 1357 (3d Cir.2002), employed a plain error standard in reviewing a claim that the district court violated a plea agreement. The distinction between a district court violation of a plea agreement and a prosеcutor’s violation of a plea agreement is too fragile to support a difference in the standard of review.

More important, whatever the prece-dential effect of Queensborough and Moscahlaidis, I believe they have been substantially undercut by the later decision of the Supreme Court in United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). There, the Supreme Cоurt held that an error not raised during the course of a guilty plea is reviewed for plain error, as opposed tо the lower harmless error standard. The logic of Vonn is fatal to the decision here. As in Vonn, de novo review in this context would invite a defendant to stay silent about an error at the time it could be cured ‍‌​​‌​​​​​‌‌‌‌​‌​​‌‌​‌‌​‌​​‌​​‌‌‌​​​‌‌‌​​‌​‌‌​​​‌‍by the district judge, while waiting “to see if the sentence later struck him as satisfactory.” 535 U.S. at 73, 122 S.Ct. 1043.

Finally, the weight of well-reasoned authority in other circuits continues to mount on the side of reviewing alleged breaches of plea agreements under the plain error rule. These cases are most recently canvassed in the decisiоn of In re Sealed Case, 356 F.3d 313 (D.C.Cir.2004).

Because I believe that we should not continue to perpetuate an erroneous standard of review, I would vote to rehear this matter en banc.