UNITED STATES OF AMERICA, Appellee, – v. – TYRONE WILSON, AKA BISCUIT, AKA YOUNG BRICKY, JOSEPH GARCIA, AKA JO JO, MUSA MARSHALL, AKA SLIM, CRYSTAL LEWIS, AKA EBB, VERDREEA OLMSTEAD, AKA AUNTIE, JOSEPH RANDOLPH, AKA RIZZLE, JOSEPH VALENTIN, AKA J., TYHE WALKER, AKA G.I.B., AKA GUY IN THE BUSHES, ALGENIS CARABELLO, AKA HIGH-HENNY, JORGE MEJIA, AKA MOOSE, AKA MUSSOLINI, RONALD HERRON, AKA RA, AKA RA DIGGS, AKA RA DIGGA, AKA RAHEEM, Defendants, SHONDELL WALKER, AKA M-DOT, Defendant-Appellant.
Docket No. 17-1896-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2018 (Argued: December 12, 2018 Decided: April 4, 2019)
Before: JACOBS, CALABRESI, Circuit Judges, RAKOFF, District Judge.*
*Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.
JILLIAN S. HARRINGTON, Monroe Township, NJ (Martin J. Siegel, on the brief, New York, NY), for Defendant-Appellant.
RENA PAUL, Assistant United States Attorney (Richard P. Donoghue, United States Attorney for the Eastern District of New York, Amy Busa, Samuel Nitze, David Lizmi, Assistant United States Attorneys, on the brief), Brooklyn, NY, for Appellee.
This case presents the question of whether the Government breaches a plea agreement when it agrees to an estimated sentence—known as a ”Pimentel estimate“—in a defendant‘s plea bargain, then advocates for a substantially higher sentence at the defendant‘s sentencing hearing on the basis of information known to the Government at the time of the agreement.
We have previously held that allegations of breached plea agreements dеpend on what “the reasonable understanding and expectations of the defendant [were] as to the sentence for which he had bargained.” Paradiso v. United States, 689 F.2d 28, 31 (2d Cir. 1982) (per curiam). Here, Defendant-Appellant Shondell Walker agreed to a Pimentel estimate of 108-135 months’ imprisonment when he pled guilty in 2011, and the Government agreed that it would not deviate from this estimate in the absence of new information. Walker‘s sentencing hearing was then delayed for six years, in substantial part due to the Government‘s request that sentencing be postponed while a trial proceeded against a co-defendant. At the end of this trial, the Government sought several sentencing enhancements based on information that became evident during trial but which the Government knew about at the time it
We hold that, under these circumstances, Walker could not have reasonably expected that the Government would change its position in such a manner when he consented to the Pimentel estimate in his plea bargain, and therefore that the Government breached the plea agreement. Accordingly, we VACATE Walker‘s sentence and REMAND for resentencing under the original plea agreement.
BACKGROUND
On October 5, 2010, pursuant to a surveillance operation conducted by the New York Police Department (“NYPD“) and the Drug Enforcement Agency (“DEA“), defendant Shondell Walker and two others were arrested during a traffic stop.
That same day, the Government filed a criminal complaint against Walker in the United States District Court for the Eastern District of New York. The complaint stated that “[f]or the past several years, the NYPD and the DEA have been investigating a violent criminal organization based in the Gowanus Houses, a public housing development in the Boerum Hill section of Brooklyn.” Compl. ¶ 2. “For the better part of the last three years, these defendants have controlled the
The complaint explained that Walker was “regularly involved in the distribution of crack cocaine in the Gowanus Houses for an individual identified as Ronald Herron, who was the leader of this criminal organization.” Id. ¶ 6 (capitalization and footnotes removed). Walker “worked with this organization and served as one of Herron‘s primary security guards and enforcers.” Id. ¶ 7. For instance, Walker would “regularly accompany Herron to narcotics transactions and carry firearms for Herron.” Id. ¶ 7. “Walker would also help to protect Herron‘s narcotics territory . . . by, for example, robbing or attacking rival narcotics traffickers.” Id. ¶ 7. And one cooperating witness “statеd that he and Walker participated in a shooting against a rival narcotics trafficker.” Id. ¶ 7. Moreover, Walker had previously been arrested in association with this criminal
Walker and eleven other co-defendants were eventually charged in a multi-count indictment for participation in the Gowanus Houses drug conspiracy.
On October 6, 2011, Walker pled guilty—pursuant to a plea agreement with the Government—to a single count of conspiring to distribute at least 200 grams of crack cocaine in violation of
The plea agreement also stated, in relevant part:
3. The Guidelines estimate set forth . . . is not binding on the Office, the Probation Department or the Court. If the Guidelines offense level
advocated by the Office, or determined by the Probation Department or the Court, is, for any reason, including an error in the estimate, different from the estimate, the defendant will not be entitled to withdraw the plea and the government will not be deemed to have breached this agreement. . . .
5. The Office agrees that . . . based upon information now known to the Office, it will . . .
b. take no position concerning where within the Guidelines range determined by the Court the sentence should fall; and
c. make no motion for an upward departure under the Sentencing Guidelines.
If information relevant to sentencing, as determined by the Office, becomes known to the Office after the date of this agreement, the Office will not be bound by paragraphs 5(b) and 5(c).
App. 91-93.
The Probation Department subsequently prepared a Pre-Sentence Report (“PSR“) for Walker on January 3, 2012, in which it agreed with the Government‘s estimated Guidelines sentence. According to the PSR, Walker worked as an “enforcer” for the conspiracy and “carried a firearm as part of his role in the organization in order to protect himself, the drug proceeds, and the locations on the block where the crack cocaine was sold.” PSR ¶ 11. The PSR also reported that, “[p]er the Government, Walker is responsible for distributing 200 grams of crack cocaine during the course of the conspiracy between 2007 and 2010,” id.—
After several delays, Walker‘s sentencing hearing was scheduled for September 10, 2013.
On the day of the hearing, the District Court—at the Government‘s request, and over defense counsel‘s objection—postponed Walker‘s sentencing until after the trial of Walker‘s co-defendant, Ronald Herron. See United States v. Herron, Docket No. 1:10-cr-00615-NGG-2. At Herron‘s trial, several witnesses testified about Walker‘s role in the drug conspiracy: one stated that Walker had said Herron had given Walker “a gun, so he could protect himself,” Trial Tr. 2925, June 16, 2014; another testified that Walker served as “muscle” for Herron, Trial Tr. 1724, June 3, 2014; three witnesses said that Walker thrеatened people to
Walker himself also testified at Herron‘s trial as a witness for Herron. Walker claimed that he sold drugs only to support himself; denied Herron‘s involvement in the conspiracy; and stated that Herron was “a positive role model.” Trial Tr. 3762-3780, June 23, 2014.
After the Herron trial ended, on October 19, 2016, the Government submitted a second sentencing memorandum to the District Court advocating for a “revised” Guidelines sentence for Walker based on allegedly new information that surfaсed during Herron‘s trial. App. 68, 72, 78. Specifically, the Government asserted (1) that the trial testimony established that “a reasonable estimate of the narcotics attributable to [Walker] would be no less than one kilogram of crack-cocaine, which would result in a base-offense level increase to level 32” from 30, id. at 80 (citing
Roughly contemporaneously, Walker‘s counsel submitted a second sentencing memorandum objecting to the “drastic modification of the original advisory sentencing guidelines” and requesting a Fatico hearing. Id. 62.2
The District Court agreed that “there [wa]s [a] preponderance of the evidence to” support the Guidelines sentence adopted by the Government. Id. at
DISCUSSION
Walker appeals on two primary grounds. First, he asserts that the Government breached his plea agreement by advocating for a higher sentence at his sentencing hearing than it had agreed to when he pled. Second, Walker argues that postponement of his sentencing hearing for four years while the Government pursued a trial against his co-defendant violated his Fifth Amendment right to a speedy sentencing. See United States v. Ray, 578 F.3d 184 (2d Cir. 2009). Because we find that the Government breached Walker‘s plea agreement, and vacate the sentence and remand for resentencing on that basis, we do not reach the alleged Fifth Amendment speedy sentencing violation.3
I
“We review interpretations of plea agreements de novo and in accordance with principles of contract law.” United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002). “Moreover, because plea bargains require defendants to waive
The Government argues that we should review this claim for plain error because Walker failed to object before the District Court on the specific grounds that the Government “breached” the plea agreement. But if a defendant objects at a sentencing hearing in a manner “which fairly alerts the сourt and opposing counsel to the nature of the claim,” the objection is “sufficient to preserve [the] argument on appeal,” even if the defendant fails to “raise a specific rationale for the objection.” United States v. Huggins, 844 F.3d 118, 121 n.3 (2d Cir. 2016) (quoting United States v. Sprei, 145 F.3d 528, 533 (2d Cir. 1998)).
Walker objected multiple times to the Government‘s change in position. Walker also made clear that he was objecting to the “drastic modification of the original advisory sentencing guidelines,” App. 62, and that he ought to be sentenced according to the “original guideline range” contained in his plea
Under the circumstances, it is obvious that Walker‘s objections, as evidenced by the Government‘s arguments in response, “w[ere] sufficient to apprise the court and opposing counsel of the nature of [Walker‘s] claims” regarding the impropriety of the Government‘s change in position. Sprei, 145 F.3d at 533 (internal quotation marks omitted). Therefore, we review the argument that the Government breached Walker‘s plea agreement for harmless error. See United States v. Robinson, 634 F. App‘x 47, 49 n.1 (2d Cir. 2016).
II
Walker argues on appeal that the Government breached his plea agreement because it (1) advocated for a higher sentence at his sentеncing hearing than it had agreed to in his plea agreement, and did so (2) based on information that the Government had in its possession at the time the plea was negotiated. Specifically, Walker contends that the evidence the Government used
Walker concedes that his perjurious testimony on behalf of Herron is new information that the Government did not have in its possession at the time it negotiated his plea agreement. Walker nonetheless argues that the Government‘s removal of the reduction for acceptance of responsibility and application of an obstruction-of-justice enhancement—both based on this perjury—also violated the terms of his plea agreement. While we will find that the Government breached Walker‘s plea agreement when it advocated for an increased base offense level, a use-of-violence enhancement, and an aggravating-role enhancement, and, on that basis, vacate Walker‘s sentence and remand for resentencing, we take no position on whether the enhancements based on
III
Whether the Government breaches a plea agreement when it later advocates for a higher sentence than that contained in the plea—based on information that the Government knew about at the time the plea was negotiated—is not an unfamiliar issue in this Circuit. See United States v. MacPherson, 590 F.3d 215, 218-19 (2d Cir. 2009) (per curiam); United States v. Habbas, 527 F.3d 266, 269-72 (2d Cir. 2008); United States v. Palladino, 347 F.3d 29, 32-35 (2d Cir. 2003). The issue stems from our suggestion in United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), that it would be good practice for the Government to provide pleading defendants with “the likely range of sentences that their pleas will authorize under the Guidelines” (known as a ”Pimentel estimate“) in оrder to reduce blindsided defendants’ claims of “unfair surprise.” But this practice has resulted in tension between, on the one hand, defendants’ “reasonable reliance” on the sentences as estimated in their plea agreements, and, on the other, the Government‘s need to maintain flexibility in its sentencing decisions in the event of mistakes, oversights, or new information. See Habbas, 527 F.3d at 269-71.
Because of this focus on the defendant‘s reasonable expeсtations—“rather than technical distinctions in semantics” surrounding the Pimentel estimate,
Yet in Palladino, 347 F.3d at 34, we held that the Government breached the plea agreement, while in Habbas, 527 F.3d at 270-71, we held it did not.
IV
Given this framework, we find that Walker‘s reasonable expectations were violated here. First, as in Palladino (and unlike in Habbas), Walker‘s plea agreement contained language indicating that the Government would, “based upon information now known to the Office,” “make no motion for an upward departure,” and it would change its position only if new information “bec[ame] known to the [Government] after the date of th[e plea] agreement.” App. 92-93. The agreement also lacked any language like that in Habbas explicitly “reserv[ing] the right” of the Government “to argue for a sentence beyond that called for by the Guidelines.” 527 F.3d at 270. “It was thus logical for [Walker] to believe that the [Pimentel] estimate, and the Government‘s stance at the sentencing hearing, would not be altered in the absence of new infоrmation.” Palladino, 347 F.3d at 34.
First, the Government maintains that Walker‘s sentence enhancements were based on “new” information, and therefore that it was not bound under the terms of the plea agreement to the original Pimentel estimate. Appellee‘s Br. 51. But—as shown by a straightforward comparison of (a) the October 2010 criminal complaint and the January 2012 PSR with (b) the evidence produced at Herron‘s trial and enumerated in the Govеrnment‘s October 2016 sentencing memorandum—the information the Government used to justify the increased base offense level, use-of-violence enhancement, and aggravating-role enhancement was in no way new.
- In its 2016 sentencing memorandum, the Government argued that a two-point base offense level increase was justified based on witness testimony at Herron‘s trial that “a reasonable estimate of the narcotics attributable to [Walker] would be no less than one kilogram of crack-cocaine.” App. 80. But the 2012 PSR said that the Government, at that time, already “conservatively estimate[d] that Herron‘s organization distributed in excess of 1 kilogram of crack cocaine.” PSR ¶ 6. The PSR also reported that law enforcement agents had concluded that “еnforcers” (as Walker was labeled) “[we]re responsible for the entire amount of narcotics . . . involved in this conspiracy.” Id. ¶ 10. And the 2010 criminal complaint indicated that Walker was “regularly involved in the distribution of crack cocaine in the Gowanus Houses,” Compl. ¶ 6; that the execution of various search warrants resulted in the seizure
of “substantial quantities of crack cocaine” from Herron‘s organization, id. ¶ 4; and that Walker himself had already been arrested pursuant to such a search warrant, id. ¶ 5. - In its 2016 sentencing memorandum, the Government contended that a use-of-violence enhancement was appropriate because of witness testimony at Herron‘s trial that Walker carried a gun and threatened people that they could not sell drugs on Herron‘s turf. But the 2010 criminal complaint makes clear that the Government knew then that Walker “served as one of Herron‘s primary security guards and enforcers“; that he “would thus regularly accompany Herron to narcotics transactions and carry firearms for Herron“; that he “would also help to protect Herron‘s narcotics territory from rival narcotics traffickers and also help to extend Herron‘s narcotics territory by, for example, robbing or attacking rival narcotics traffickers“; and that he even “participated in a shooting against a rival narcotics trafficker.” Compl. ¶ 7. Moreover, the 2012 PSR also described Walker as “an enforcer” who “carried a firearm as part of his role in the organization in order to protect himself, the drug prоceeds, and the locations on the block where the crack cocaine was sold.” PSR ¶ 11.
- In its 2016 sentencing memorandum, the Government asserted that a two-point aggravating-role enhancement was appropriate “given Walker‘s role as an enforcer in Herron‘s organization.” App. 80. But again, both the 2010 criminal complaint and the 2012 PSR specifically characterized Walker as an “enforcer.” Compl. ¶ 7; PSR ¶ 11.
There is little daylight between the information that the Government adduced in Walker‘s 2016 sentencing memorandum and that contained in the criminal complaint and the 2012 PSR. And the Government essentially admits as
Second, the Government argues that it did not breach Walker‘s plea agreement because, сontrary to Walker‘s assertions, the Government did not act
V
The Government further argues that, even if it did breach Walker‘s plea agreement, Walker cannot show that he suffered any harm from the breach. That argument lacks merit. There is no doubt that the District Court relied on the
VI
“In general, the remedy for a breached plea agreement is either to permit the plea to be withdrawn or to order specific performance of the agreement.” Vaval, 404 F.3d at 154 (internal quotation marks and brackets omitted) (quoting United States v. Brody, 808 F.2d 944, 947 (2d Cir. 1986)). “[T]he choice between the remedies of resentencing or plea withdrawal ‘is generally a discretionary one guided by the circumstances of each case.‘” Vaval, 404 F.3d at 156 (quoting Palladino, 347 F.3d at 34). In cases where specific performance is the appropriate remedy, we typically remand the case for resentencing before a different district
In this case, we believe that the appropriate remedy is to order specific performance of the agreement. In Palladino, another case of a breached Pimentel estimate, we concluded that plea withdrawal was the correct remedy because the agreement itself was “hopelessly tainted by the introduction of new evidence known to the Government at the time of the plea.” 347 F.3d at 35. The same is true here. But as we recognized in Palladino, the result of such a withdrawal could be “a conviction on remand that carries a longer sentence than that initially imposed.” Id. If a new plea agreement cannot be negotiated, Walker could be tried and convicted, and the sentencing judge could elect to impose a sentence higher than that estimated in Walker‘s plea agreement. Given that risk, and the fact that Walker specifically requested resentencing as оpposed to withdrawal of
CONCLUSION
For the foregoing reasons, we VACATE the judgment and REMAND to the District Court for resentencing. We do not doubt Judge Garaufis’ capacity to resentence Walker appropriately. But given our holding on the appropriate remedy in the event of a Government breach in Enriquez and in all of the plea agreement violation cases we have found,6 we deem it appropriate to have the resentencing be before a different district judge.