UNITED STATES of America, v. Isaac RIVERA, Appellant.
No. 02-3067.
United States Court of Appeals, Third Circuit.
April 15, 2004.
213
Clayton A. Sweeney, Jr., Philadelphia, PA, for Appellant.
Present: SCIRICA, Chief Judge, SLOVITER, NYGAARD, ALITO, ROTH, MCKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, CHERTOFF, and FISHER, Circuit Judges, and OBERDORFER, District Judge.*
SUR PETITION FOR REHEARING
SLOVITER, Circuit Judge.
The petition for rehearing filed by Appellee, 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 сircuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the 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 preсedents. This Circuit has long held that if its cases conflict, the earlier is the controlling authority and the latter is ineffective as prеcedents. 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 of the standard of review for a сlaim of breach of plea agreement. Vonn addressed only
Under
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 сourt before, and not ruled upon until, the sentencing hearing, that he viewed the adoption of the probation officer‘s rеcommended departure 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 exрertly) preserved 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 no suggestion thаt 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 noted in fоotnote 4 of the opinion) the rule from our decisions in Queensborough and Moscahlaidis made it unnecessary for the panel to address the foregoing quеstion of the alternative ground for de novo review of his claim for breach of plea agreement, Rivera effeсtively preserved the right to de novo review on that alternative ground as well.
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
I am not convinced that we need to read our earlier dеcisions to compel that an alleged breach of a plea agreement is reviewed de novo even if aрpellant 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 а claim that the district court violated a plea agreement. The distinction between a district court violation of a plea agreement and a prosecutor‘s violation of a plea agreement is too fragile to support a difference in the standard of review.
More important, whatever the precedential effect of Queensborough and Moscahlaidis, I believe they have been substantially undercut by the later decision of the Supreme Cоurt in United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). There, the Supreme Court held that an error not raised during the course of a guilty plea is reviewed for plain error, as opposed to 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 stаy 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 satisfaсtory.” 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 decision 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.
* Hon. Louis F. Oberdorfer, Senior District Judge for the District of Columbia, sitting by designation, as to panel rеhearing only.