PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ___________

                 No. 13-3644
                 ___________

      UNITED STATES OF AMERICA

                       v.

          WILLIAM DAVENPORT
             a/k/a Little One,
                          Appellant
               __________

On Appeal from the United States District Court
     for the Middle District of Pennsylvania
          (D. C. No. 1-08-cr-00424-006)
District Judge: Honorable Christopher C. Conner
                  ___________

         Argued September 10, 2014
Before: FISHER, JORDAN and HARDIMAN,
              Circuit Judges.

            (Filed: January 6, 2015)
Stephen R. Cerutti, II, Esq.
Christy H. Fawcett, Esq.
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Christian A. Fisanick, Esq. [Argued]
Amy C. Phillips, Esq.
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
       Attorneys for Appellee

J. Nicholas Ranjan, Esq. [Argued]
K&L Gates
210 Sixth Avenue
Pittsburgh, PA 15222
       Attorney for Appellant

                       ____________

                         OPINION
                       ____________

HARDIMAN, Circuit Judge.

       William Davenport appeals an order of the District
Court denying his motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Davenport claims his trial
counsel was ineffective when he failed to argue that the
Government had breached Davenport’s plea agreement.




                             2
Because we agree with the District Court that the plea
agreement was not breached, we will affirm.1
                                I
                               A
        On September 1, 2008, Drug Enforcement
Administration agents executed a search warrant on a storage
facility that Davenport controlled in Harrisburg,
Pennsylvania. Once inside, the agents found large amounts of
drug paraphernalia and cash as well as approximately 160
grams of cocaine. The facility also housed three vehicles,
including a Cadillac that contained a loaded nine-millimeter
pistol stashed between its seat cushions.
        Several weeks later, DEA agents executed another
search warrant, this time on Davenport’s residence in Enola,
Pennsylvania. Davenport was present during this second
search and agreed to cooperate. He was taken back to the
DEA’s office, where he described his involvement with
specific individuals in the drug trafficking business and
admitted that he had purchased cocaine hydrochloride,
cooked it into crack cocaine, and sold it. Davenport also
admitted that the gun in the Cadillac was his.
                                B
        Following the searches, Davenport and five others
were charged with several drug-related offenses. After
initially pleading not guilty, Davenport signed a plea
agreement in which he waived indictment and pleaded guilty


      1
         The Court acknowledges the excellent advocacy of
pro bono counsel, J. Nicholas Ranjan of K&L Gates LLP, on
behalf of Mr. Davenport.




                             3
to a superseding information charging him with one count of
conspiracy to distribute and possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 846.
       The plea agreement addressed, among other things,
what recommendations the parties could make at sentencing.
For example, Paragraph 12 stated that the Government would
seek a three-level reduction in Davenport’s offense level if he
accepted responsibility. Paragraph 13 permitted the
Government to recommend a sentence it deemed appropriate,
up to and including the maximum allowable by law.
Likewise, Paragraph 26 stated that the Government could
raise—and the sentencing court could consider—“all relevant
information with respect to the defendant’s background,
character and conduct including the conduct that is the subject
of the charges which the United States has agreed to
dismiss[.]” Rec. No. 178, at 16–17.2 And Paragraph 38 stated
that the Government was not restricted in any way from
responding to motions filed by Davenport or requests made
by the sentencing court about how the Guidelines should be
applied, “including but not limited to, requests for
information concerning possible sentencing departures.” Rec.
No. 178, at 23.
       Most important for this appeal, however, is Paragraph
14, which listed several specific recommendations as to how
the Guidelines should be applied to Davenport’s conduct.
Therein, the parties initially agreed to recommend:
       that the quantity of cocaine hydrochloride
       attributable to the defendant is 15-50 kilos, the

      2
          Davenport proceeded on the original record. Thus, all
references to “Rec. No., at __” are to record entries in the
district court docket.




                              4
      quantity of crack cocaine attributable to the
      defendant is between 500 grams and 1.5
      kilograms, the defendant obstructed or impeded
      or attempted to obstruct or impede the
      administration of justice with respect to the
      investigation or prosecution of the offense, and
      the defendant possessed a firearm.

Rec. No. 178, at 8–9 (emphasis added). Paragraph 14 then
stated that Davenport “understands that none of these
recommendations is binding” on the U.S. Probation Office or
the sentencing court, either of which could arrive at different
findings, and that the Government fully intended to provide
“all information in its possession which it deems relevant to
the application of the [Guidelines] to the defendant’s
conduct.” Rec. No. 178, at 9.
        At some point during the plea negotiations, the clause
“and the defendant possessed a firearm” was stricken from
Paragraph 14 and the initials “WD” and “RLM” (presumably
“William Davenport” and his trial counsel, “Royce L.
Morris”) were handwritten next to the deletion.3 Davenport
argues that the stricken provision precluded the Government
from pursuing a gun enhancement at sentencing. The
Government counters that the strike-through meant nothing


      3
          The record does not indicate when this was done.
Also, Davenport says his counsel and the Government
initialed the stricken provision, Davenport Br. 4, whereas the
Government claims Davenport and his counsel initialed the
provision, Gov’t Br. 7. These ambiguities are immaterial to
the outcome of this case.




                              5
more than that Davenport no longer stipulated to possession
of a firearm.
        At a change-of-plea hearing, Davenport affirmed that
he read and understood the plea agreement, and the
Government summarized the specific provisions in
Paragraphs 12 and 14. The Government made no mention of
the gun enhancement during its recital of Paragraph 14, but it
did state that a loaded gun had been found during the search
of Davenport’s storage facility. Davenport admitted the facts
presented, and the District Court accepted his plea of guilty.
                                C
        The U.S. Probation Office calculated Davenport’s
Total Offense Level at 35, which included a two-level
enhancement under United States Sentencing Guidelines
(USSG) § 2D1.1(b)(1) for possessing a firearm in connection
with his offense and another two-level enhancement under
USSG § 3C1.1 for obstructing justice. Davenport’s Criminal
History Category was IV, which yielded a Guidelines range
of 235 to 240 months’ imprisonment in light of the statutory
maximum of 20 years. Davenport raised eight objections to
the PSR.
        During Davenport’s sentencing hearing, the
Government stated that there was “the issue of whether the
gun enhancement should apply.” Rec. No. 313, at 2.
Consequently, the Government called a DEA agent to
respond to Davenport’s objections to the gun and obstruction
of justice enhancements. After the DEA agent and another
witness testified, the District Court invited Davenport’s trial
counsel to argue that there was insufficient evidence to
connect the firearm to the drug offense at issue. The Court
then asked the prosecutor to reply, and she stated: “The area
where the gun, loaded gun[,] was located was accessible from
the same area where the drugs were located. I think the



                              6
circumstances under which the gun was possessed can be
taken into consideration by the court.” Rec. No. 313, at 49–
50.
       The District Court rejected Davenport’s objections to
the PSR, but varied downward and sentenced him to 199
months’ imprisonment. Davenport appealed his sentence and
we affirmed. See United States v. Davenport, 422 F. App’x
115 (3d Cir. 2011).
                               D
       On July 3, 2012, Davenport filed a pro se motion to
vacate, set aside, or correct his sentence under 28 U.S.C. §
2255. The District Court denied the motion, holding that the
stricken clause in the plea agreement meant merely that
Davenport no longer stipulated to a gun enhancement, not
that the Government had waived the right to advocate for the
enhancement at sentencing. Accordingly, because the
Government had not breached the plea agreement,
Davenport’s trial counsel was not ineffective for failing to
argue that it had.
       Davenport appealed and we granted a certificate of
appealability on the question whether Davenport’s trial
counsel was ineffective because he failed to object to the
Government’s pursuit of a two-level gun enhancement in
alleged violation of the terms of his plea agreement.4
                               II
       We exercise plenary review over the legal component
of an ineffective assistance of counsel claim. United States v.


      4
         The District Court had subject matter jurisdiction
over Davenport’s motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. We have jurisdiction
over his appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).



                              7
Smack, 

, 537 (3d Cir. 2003). We review the
underlying facts for clear error, but exercise independent
judgment on whether those facts, as found by the District
Court, show that counsel rendered ineffective assistance. 

States v. Baird, 

, 225 (3d Cir.
2000)).
                              III
       The threshold question presented is whether the
Government breached Davenport’s plea agreement when it
urged the District Court to impose a two-level gun
enhancement under USSG § 2D1.1(b)(1). We hold that it did
not, so it necessarily follows that Davenport’s trial counsel
was not ineffective for failing to object to a non-existent
breach.
                              A
       We follow a three-step analysis in determining
whether there has been a breach of a plea agreement. First, we
identify the terms of the agreement and the government’s
alleged improper conduct. Second, we determine whether the
government has violated its obligations under that agreement.
And if it has, we fashion the proper remedy. United States v.
Nolan-Cooper, 

, 235 (3d Cir. 1998) (citing
United States v. Moscahlaidis, 

, 1360 (3d Cir.
1989)).
       At the outset, we determine “whether the
government’s conduct is inconsistent with what was
reasonably understood by the defendant when entering the
plea of guilty.” 

(quoting United States v.
Badaracco, 

, 939 (3d Cir. 1992)). “Reasonably
understood” is a “purely objective” standard governed by the
common law of contract. United States v. Hodge, 

, 485–86 (3d Cir. 2005). Specifically, we look to the plain
meaning of the plea agreement and eschew a “rigidly literal”



                              8
interpretation of it. 

And we give the benefit of any
doubt to the defendant, given the government’s “tremendous
bargaining power” in negotiating such plea agreements,
United States v. Schwartz, 

, 405 (3d Cir. 2008),
and the fact that the defendant, “by entering into the plea,
surrenders a number of [his] constitutional rights,” Nolan-

.
        Once the plea agreement has been made, the
government does not have to endorse its terms
“enthusiastically,” 

, but it is
expected to “adhere strictly to the terms of the bargain it
strikes,” 

(quoting United
States v. Miller, 

, 1274 (3d Cir. 1977)), and we
will hold the government to that bargain.
                                 B
        Davenport argues that he reasonably expected that the
Government would not pursue a gun enhancement based on
the written terms of the plea agreement. We disagree. At the
outset, we note that the extent to which the Government can
be said to have advocated for an enhancement is itself
debatable, given the fact that Davenport himself objected to
the gun enhancement in the PSR, and the only time the
Government addressed the issue at the sentencing hearing
was when it was specifically asked to do so by the Court.
        Davenport makes three arguments in support of his
claim that the Government breached the plea agreement.
First, he claims that because Paragraph 14 contains a set
number of sentencing recommendations the Government
would pursue, the removal of one of those
recommendations—the gun enhancement—led him to
reasonably believe that the Government would not advocate
for it at sentencing. “Under the contractual interpretive canon
of expressio unius est exclusio alterius,” he argues, “the



                               9
expression of these items necessarily excluded anything that
was not listed, including the firearm enhancement.”
Davenport Br. 14. He cites the Tenth Circuit’s decision in
United States v. Scott, where, on his view, the Court was
presented with “nearly identical facts” and held that the
government had breached a plea agreement when it agreed to
take specific positions at sentencing but then sought an
unstated enhancement. 

, 1338 (10th Cir. 2006).
Second, Davenport leans on two Texas Supreme Court
decisions for the proposition that a stricken provision in a
contract “can manifest an intent to preclude or an
unwillingness to be bound.” Davenport Br. 17 (citing
Houston Exploration Co. v. Wellington Underwriting
Agencies, Ltd., 

, 472 (Tex. 2011), and
Houston Pipe Line Co. v. Dwyer, 

, 664–66
(Tex. 1964)). Finally, Davenport argues that at the very least
the stricken provision created ambiguity, which should be
resolved in his favor. Davenport Br. 18 (citing 

).
       Davenport’s arguments fail because, as we stated in
Schwartz, plea agreements “must be interpreted as a whole
and no part should be 

(quoting
Calamari & Perillo, Contracts § 3.13 (5th ed. 2003)). While
Davenport homes in on the first part of Paragraph 14, the rest
of that paragraph makes clear that the Government reserved
the right to provide the District Court and the Probation
Office with “all information in its possession which it deems
relevant.” Rec. No. 178, at 9. Meanwhile, Paragraphs 13, 26,
and 38 all put Davenport on notice of the Government’s
significant flexibility at sentencing to respond to both his
objections and the District Court’s inquiries. The record
shows that the Government raised the issue of the gun only in
direct response to Davenport’s argument that there was




                             10
insufficient evidence to connect the gun with his offense.
Read as a whole, the plea agreement clearly permits this kind
of advocacy.
        The plea agreement also makes plain that Paragraph 14
contained joint recommendations of the parties.
Recommendations that the parties had not agreed to, or that
they could unilaterally make or oppose, were not included in
that list. Accordingly, the removal of the gun enhancement
meant simply that the parties no longer jointly agreed on that
specific recommendation. It did not, as Davenport claims,
mean that the parties had jointly agreed that the Government
would be barred from bringing the gun enhancement to the
Court’s attention at sentencing. Davenport’s argument ignores
the other provisions of the plea agreement that explicitly
permit the Government to do just that.
        Davenport’s argument also falls prey to the logical
fallacy of the inverse—the incorrect assumption that if P
implies Q, then not-P implies not-Q. See NLRB v. Noel
Canning, 

, 2603 (2014) (Scalia, J., concurring
in judgment) (explaining the logical error); Ruggero J.
Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking
161 (3d ed. 1997) (same). Davenport essentially argues that
striking the stipulation to the gun enhancement was
tantamount to an agreement that he did not possess a firearm.
He is incorrect. While striking the gun clause vitiated the
recommendation, it did not tacitly impose the obverse
recommendation.
        Nor is Davenport’s reliance on the Tenth Circuit’s
decision in Scott availing. The plea agreement in Scott
delineated the “positions [the parties] expect to take at
sentencing” and then articulated what those positions would
be. 

. The Tenth Circuit determined that
the Government had breached the agreement because Scott



                             11
reasonably understood that language to mean the Government
would not argue for other sentencing enhancements, but it did
so anyway. 

parties did not circumscribe the
positions they were allowed to take at sentencing—a fact
made evident when one reads the plea agreement as a whole,
including the second half of Paragraph 14 and Paragraphs 13,
26, and 38. Rather, the parties consented to a list of joint
recommendations and agreed that the Government would
have substantial flexibility to advocate positions at
sentencing.
                               IV
        Because the Government did not breach Davenport’s
plea agreement, his trial counsel was not ineffective for
failing to say there was a breach. The judgment of the District
Court will be affirmed.




                              12