Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-9-2005

USA v. Floyd
Precedential or Non-Precedential: Precedential

Docket No. 05-1641




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                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                            No. 05-1641




               UNITED STATES OF AMERICA

                                 v.

                       BENNAE FLOYD,
                                  Appellant


        On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                    (D.C. No. 02-cr-00295-6)
        District Judge: Honorable Christopher C. Conner


          Submitted Under Third Circuit LAR 34.1(a)
                      October 24, 2005

         Before: SLOVITER, FISHER, Circuit Judges,
              and THOMPSON, District Judge *

                  (Filed : November 9, 2005 )


John A. Abom
Abom & Kutulakis
Carlisle, PA 17013

       Attorney for Appellant
_________________________

*      Hon. Anne E. Thompson, United States District Judge for
       the District of New Jersey, sitting by designation.
Christy H. Fawcett
Office of United States Attorney
Harrisburg, PA 17108

       Attorney for Appellee

                   OPINION OF THE COURT


SLOVITER, Circuit Judge.

       Appellant Bennae Floyd pled guilty to traveling interstate
or causing others to travel interstate to facilitate drug trafficking
in violation of 18 U.S.C. § 1952(a)(3) and was sentenced to
forty-eight months’ imprisonment. Floyd appeals, contending
that her sentence should be vacated because the Government
breached its promise to consider recommending a downward
departure from the Sentencing Guidelines if Floyd provided the
Government with substantial assistance.

                                  I.

        The relevant superceding indictment charged Floyd with
criminal conspiracy to distribute 50 grams or more of crack
cocaine and five kilograms or more of cocaine hydrochloride in
violation of 21 U.S.C. § 846 and 21 U.S.C. § 841 and traveling
interstate or causing others to travel interstate to facilitate drug
trafficking in violation of 18 U.S.C. § 1952(a)(3). Co-
defendants Steven Smith and Kelvin Smith were also named in
that charge. Floyd pled not guilty to all charges.

        Shortly after return of the fifth Superceding Indictment,
Floyd and the United States entered into a plea agreement which
stated, inter alia, “The defendant agrees to plead guilty to . . .
traveling interstate or causing others to travel interstate to
facilitate drug trafficking in violation of Title 18, United States
Code, Section 1952 (a)(3). The maximum penalty for that
offense is imprisonment for a period of five years.” App. at 69.
The plea agreement also stated that the Government “may
request” a downward departure for Floyd’s cooperation if Floyd

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“renders substantial assistance.” App. at 73.

        Pursuant to the terms of the plea agreement, Floyd pled
guilty on April 20, 2004 to traveling or causing others to travel
interstate to facilitate drug trafficking. The day before trial was
scheduled to begin for Floyd’s co-defendants, Floyd traveled
from South Carolina to Pennsylvania to speak with co-defendant
Steven Smith. The Government acknowledged that Floyd’s
conversations with Smith “probably did at least have some
influence on his decision to plead guilty.” Supp. App. at 25.

        On February 26, 2005, a probation officer filed a pre-
sentence report (“PSR”) which stated that the charges against
Floyd resulted in a base offense level of thirty-eight. Because
Floyd accepted responsibility for her actions, three levels were
deducted and Floyd’s offense level was determined to be thirty-
five. Floyd’s criminal history placed her in Category VI. The
PSR noted that “[h]ad the defendant been convicted as charged
in the Indictment, she would have been facing a . . . guideline
range of 292 - 365 months.” PSR para. 56. In contrast, the
statutory maximum sentence for the crime to which Floyd pled
guilty, i.e., traveling or causing others to travel interstate to
facilitate drug trafficking, is sixty months, as stated in the plea
agreement.

       At the sentencing hearing, the Government chose not to
recommend a downward departure from the sentencing
guidelines. According to the Government, “Ms. Floyd’s
sentencing guidelines range would have been 292 to 365 months
but for the fact that she had a charge bargain. . . . [T]he charge
bargain was obviously a very significant charge bargain here and
[the Government] declined to authorize the motion for
downward departure.” Supp. App. at 25.

        The District Court nonetheless did not accept the
recommendation of the PSR that Floyd’s offense level was
thirty-five. Instead, it found that Floyd’s offense level should be
calculated based on a Criminal History Category of VI and a
cocaine hydrochloride quantity of four to five ounces. This led
to a Guidelines sentence of forty-one to fifty-one months, less

                                 3
than the sixty-month maximum prescribed in the plea agreement.
As noted heretofore, she was sentenced to forty-eight months.

                                II.

       On appeal, Floyd contends that the Government acted in
bad faith by entering a plea bargain which contemplated a
downward departure in exchange for assistance when the
Government never intended to consider a downward departure.
Floyd contends that because the Government knew or should
have known that the sixty-month sentence was substantially less
than the sentence she could have received at trial if she were
found guilty of all the crimes for which she was indicted, the
Government never had a good faith intention to evaluate the
assistance she provided to determine if she merited a downward
departure. Floyd also argues that the Government acted in bad
faith by choosing not to recommend a downward departure on
grounds that were extraneous to the plea agreement. The
Government argues that its refusal to move for a downward
departure was not based on the quality of Floyd’s assistance, but
rather on the fact “that the maximum possible sentence . . . the
defendant could receive under the terms of the plea agreement
was far below what the government believed the guideline range
to be” pursuant to the indictment. Appellant’s Br. at 7.

       The Government states that because no PSR was
available at the time it drafted and signed the plea agreement, it
“had no means of weighing the value of [Floyd’s] cooperation
against the charge bargain that Floyd already received.”
Appellee’s Br. at 15. When it learned that the sentence
calculated for Floyd in the PSR was only one-sixth as long as it
could have been had she been convicted as charged in the
indictment, it decided not to move for a downward departure.

                                III.

       We have previously held that “whether the government
violated the terms of a plea agreement is a question of law
subject to plenary review.” United States v. Rivera, 

, 294 (3d Cir. 2004) (emphasis in original) (citation and

                                 4
quotation marks omitted). That holding is consistent with our
earlier analysis in United States v. Isaac, 

, 482 (3d
Cir. 1998), where we stated that “plea agreements are
contractual in nature.” We explained that when a “plea
agreement contemplates a motion [for a downward departure] . .
. the district court is free to apply contract principles to
determine whether the agreement has been satisfied.” 

court, although cautioned not to “interfere with the
prosecutorial discretion that . . . Congress intended United States
Attorneys to exercise,” 

must be satisfied that the
Government’s position is “based on an honest evaluation of the
assistance provided and not on considerations extraneous to that
assistance.” 

bears the burden of establishing by a
preponderance of evidence that the Government has violated the
plea agreement. United States v. Huang, 

, 187 (3d
Cir. 1999). The court must determine “whether the
government’s conduct is inconsistent with what was reasonably
understood by the defendant when entering the plea of guilty.”
United States v. Nolan-Cooper, 

, 236 (3d Cir. 1998)
(citation and quotation marks omitted). Any ambiguities in the
agreement must be construed in favor of the defendant; in “view
of the government’s tremendous bargaining power [courts] will
strictly construe the text against it when it has drafted the
agreement.” United States v. Baird, 

, 229 (3d Cir.
2000).

       The plea agreement in this case stated:

       The defendant has agreed to cooperate with the
       United States. Upon completion of the
       cooperation, if the United States believes the
       defendant has provided “substantial assistance”. . .
       the United States may request the Court to depart
       below the guideline range when fixing a sentence
       for this defendant. In the event that the defendant
       renders substantial assistance, the United States
       specifically reserves the right to make a specific
       recommendation of a term of months to the

                                 5
       District Court. However, the defendant
       acknowledges that the United States may decline
       to exercise its discretion and recommend a
       departure if the defendant breaches any of the
       provisions of this Agreement, or commits any
       other offense while awaiting plea or sentencing.

App. at 73 (emphasis added).

        Under contract law, the court must read Floyd’s plea
bargain in a manner that gives meaning to each provision.
Under such a reading, the phrase “may request” cannot signify
that the Government has complete discretion in determining
whether to move for a downward departure because such a
reading would render superfluous the sentence that states, “In
the event that the defendant renders substantial assistance, the
United States specifically reserves the right to make a specific
recommendation of a term of months to the District Court.” If
the phrase “may request” in the plea agreement were to signify
complete discretion, then the sentence specifying the
circumstances under which the Government may decline to
exercise its discretion (“the defendant acknowledges that the
United States may decline to exercise its discretion and
recommend a departure if the defendant breaches any of the
provisions of this Agreement, or commits any other offense
while awaiting plea or sentencing”) would be entirely
unnecessary; there would be no need for the Government to
specify specific circumstances in which it could decline to
exercise its discretion if it were able to decline to do so at any
time. See, e.g., Contrans, Inc. v. Ryder Truck Rental, Inc., 

, 169 (3d Cir. 1987) (noting that “a contract should be
read so as to give meaning to all of its terms when read as an
entirety”). For the “may decline” clause to have any
significance, it must constitute an exclusive list of the
circumstances under which the Government can decline to
exercise its discretion.

      Analyzing similar limiting language in the criminal
context, we have interpreted a plea agreement providing that “if
defendant engaged in criminal conduct after signing the plea

                                 6
agreement, the government could use any information supplied
by defendant against him” to mean, by “negative implication, . . .
[that] the government agreed as a general matter not to use to the
defendant’s detriment information obtained cooperatively.”

. Similarly, by negative implication, if
Floyd did not breach the agreement, the Government should
have exercised its discretion and recommended a downward
departure so long as Floyd’s assistance was substantial. See
United States v. Hernandez, 

, 82 (5th Cir. 1994)
(interpreting a similar provision in a plea agreement and
remanding for a hearing on the “degree of discretion, if any, the
parties intended for the government to retain by the use of the
permissive word ‘may’”). The court in Hernandez expressed
“serious doubts that either party meant for the government to
retain unbridled discretion merely by using that word.” 

Therefore, by the plain language of the agreement, Floyd
reasonably expected that the Government would consider her
assistance and, if her assistance was valuable and she did not
commit other crimes or otherwise violate the agreement, the
Government would move for a downward departure.

        Although the Government reserved the right not to
recommend a downward departure “if the defendant breach[ed]
any of the provisions of this Agreement, or commit[ted] any
other offense while awaiting plea or sentencing,” and also
reserved the right to recommend a departure of a specific
number of months, the Government did not reserve the right not
to recommend a downward departure on the ground that the
charge bargain turned out to be more favorable than it had
originally anticipated. The Government’s explanation for its
failure to recommend the downward departure does not meet the
good faith requirement imposed by this court in Isaac because it
is based on considerations extraneous to the assistance provided
by Floyd.1 The good faith requirement in Isaac required the



       1
          The Government states that it based its decision not to
recommend a downward departure not only on the charge bargain,
but also on Floyd’s “diminishment of her own criminal activity and
the fact that it was difficult when she was interviewed to get a

                                7
straight answer to a question from her.” Supp. App. at 25-26.
However, Floyd was given a deduction for accepting responsibility
and the transcript at sentencing makes clear that the Government’s
primary consideration in refusing a recommendation for a
downward departure was “the significant charge bargain.” App. at
109.

The prosecutor stated:

       I’d like to place on the record what happened here with
       respect to a motion for downward departure. I did submit
       a motion for downward departure to my supervisors. They
       looked at the fact that Ms. Floyd’s sentencing guidelines
       range would have been 292 to 365 months but for the fact
       that she had a charge bargain. They said that the charge
       bargain was obviously a very significant charge bargain
       here and declined to authorize the motion for downward
       departure.

               When Mr. Abom pointed out to me or reminded me
       that his client had spoken with Steven Smith just prior to his
       guilty plea here in court, and I had frankly forgotten that, I
       went to my supervisors again and said although I don’t
       know for sure, her speaking to him probably did at least
       have some influence on his decision to plead guilty, does
       that change the office’s feeling with respect to a motion for
       downward departure here, and my supervisors said no, it did
       not.

               I frankly have to say that I did have some concerns
       and I frankly had to tell my supervisors about this, about
       Ms. Floyd’s diminishment of her own criminal activity and
       the fact that it was difficult when she was interviewed to get
       a straight answer to a question from her. On the other hand,
       I did point out to them that she had provided us information
       concerning Steven Smith and so on and so forth, and it was
       their decision, given the custody range she would have
       otherwise have faced, and the significant charge bargain

                                 8
Government to evaluate Floyd’s assistance without reference to
the charge bargain.

        The Government’s argument, that it did not anticipate the
PSR’s determination of the sentence Floyd would have received
if she had been convicted at trial of all of the counts in the
indictment, is essentially an attempt to avoid performance of a
contract based on a unilateral mistake. Although it lacked the
PSR, the Government entered the plea bargain aware that it
possessed limited knowledge of what the potential Guideline
range would be.2 Given the Government’s knowledge of the risk
it was taking, the Government cannot now refuse to perform the
contract. Instead, it is obliged to consider whether Floyd’s
assistance merited a downward departure.

       Floyd relied on the Government’s promise that it would
consider making a motion for a downward departure, and she
traveled from South Carolina to Harrisburg, Pennsylvania to
speak with her co-defendant and ex-boyfriend Steven Smith.
Smith was also the father of Floyd’s child. According to her
testimony, Floyd went to Harrisburg to convince her co-
defendants to plead guilty rather than going to trial, thus saving
the Government’s resources. She stated, “I asked [Steven


       that she already had, that further downward departure was
       not warranted.

Supp. App. at 24-26.


       2
          Moreover, the Government knew that by changing her
plea, Floyd’s statutory maximum term of imprisonment would be
60 months. When Floyd changed her plea, she was no longer
subject to the guideline range applicable to offenses dismissed by
the Government. In this respect, the Government’s reliance upon
the PSR’s determination of the sentence Floyd would have received
is a non sequitur because that calculation was totally irrelevant.
Floyd’s plea agreement, drafted and approved by the Government,
foreclosed the possibility that she would be subject to any period
of imprisonment greater than 60 months.

                                 9
Smith], ‘if you love your son as you say you do, admit to your
guilt. Truth is a virtue. You have to tell them what you did.’”
Supp. App. at 23.

        The terms of Floyd’s plea agreement promised that in
exchange for substantial assistance, the Government would
recommend a downward departure. Such agreements are
standard operating procedure in the criminal justice system.
Because these agreements are common, it is crucial that they be
clear to both parties. The agreement here, both under the
technical rules of contract interpretation and by what a lay
person would understand to be its purpose, offered Floyd the
hope of a downward departure from the sentencing guideline
range for the crime covered by the agreement. Floyd is entitled
to an evidentiary hearing on whether her assistance, without
reference to her charge bargain, was substantial enough to
warrant a motion for a downward departure by the Government.
For that reason, we will vacate the sentence and remand for an
evidentiary hearing.




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