Filed: Apr. 27, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4316 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. XAYVER JERVONTE-MARQUI WARNER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:13-cr-00252-RJC-2) Argued: January 28, 2016 Decided: April 27, 2016 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Sentence vacated and case remanded by published opinion
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4316 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. XAYVER JERVONTE-MARQUI WARNER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:13-cr-00252-RJC-2) Argued: January 28, 2016 Decided: April 27, 2016 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Sentence vacated and case remanded by published opinion...
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4316
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
XAYVER JERVONTE-MARQUI WARNER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00252-RJC-2)
Argued: January 28, 2016 Decided: April 27, 2016
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Sentence vacated and case remanded by published opinion. Judge
Niemeyer wrote the opinion, in which Judge King and Judge Duncan
joined.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Jill
Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:
Xayver Warner, who pleaded guilty pursuant to a plea
agreement to one count of aiding and abetting the theft of a
firearm, contends that the government breached the plea
agreement. We agree.
In the plea agreement, the government agreed to advise the
district court at sentencing that the parties had agreed that
the 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B)
(increasing a defendant’s offense level for use or possession of
a firearm in connection with another felony offense) did not
apply. The government’s agreement on the inapplicability of the
enhancement was based, at least in part, on its view that a
North Carolina conviction for breaking and entering a motor
vehicle did not constitute a felony offense for a defendant with
Warner’s criminal history.
At sentencing, however, the government advised the court
that it had changed its position on whether a North Carolina
breaking and entering offense constituted a felony, concluding
that it did, regardless of a defendant’s criminal history.
Nonetheless, the government asked the court to honor the plea
agreement and not apply the enhancement to Warner. The court,
however, chose to apply the enhancement and sentenced Warner to
48 months’ imprisonment.
2
Because we conclude that the government, although acting in
good faith, breached its undertaking in the plea agreement by
stating that the enhancement did apply, we vacate Warner’s
sentence and remand for resentencing before a different district
judge, as required by Santobello v. New York, 404 U.S. 257, 263
(1971).
I
After Warner and an accomplice broke into 19 motor vehicles
in a parking deck in Charlotte, North Carolina, and stole a .40
caliber pistol from one of the vehicles, a federal grand jury
returned an indictment against Warner, charging him with
stealing a firearm that had moved in interstate commerce and
aiding and abetting the same, in violation of 18 U.S.C.
§§ 924(l) and 2. The government and Warner’s counsel thereafter
discussed the possibility of a plea agreement. During
negotiations, Warner’s counsel stated in an email to the
government that a plea agreement “would obviously have to
include dismissal of all state charges[,] . . . [and] [w]e would
also need a stipulation that the 4-level enhancement under
§ 2K2.1(b)(6)(B) [for using or possessing ‘any firearm or
ammunition in connection with another felony offense’] does not
apply.” In a responding email, the Special Assistant U.S.
Attorney stated, “[A]t this time[,] I do not have information
3
that would implicate [Warner] under [§ 2K2.1(b)(6)(B)].” She
added that “[t]he investigation and talks with witnesses and the
co-Defendant are ongoing[,] but I can as of now agree that this
[enhancement] does not apply.”
The next day, on December 13, 2013, Warner signed a plea
agreement with the government in which he agreed to plead guilty
to the charge that he had aided and abetted the theft of a
firearm. The agreement included the following provision:
7. Pursuant to Rule 11(c)(1)(B), the parties agree
that they will jointly recommend that the Court
make the following findings and conclusions as to
the U.S.S.G.:
* * *
d. The parties agree that the 4-level increase
under 2K2.1(b)(6)(B) does not apply.
e. The United States will inform the Court and
the probation office of all facts pertinent
to the sentencing process and will present
any evidence requested by the Court.
The agreement also included a provision by which Warner waived
his right to appeal “whatever sentence [was] imposed,” except to
raise claims of ineffective assistance of counsel or
prosecutorial misconduct.
Following a plea colloquy, the district court accepted
Warner’s guilty plea pursuant to the plea agreement, and a
probation officer subsequently prepared a presentence report.
In the presentence report, the probation officer recommended
that the § 2K2.1(b)(6)(B) 4-level enhancement be applied,
4
concluding that Warner had used or possessed a firearm in
connection with another felony offense -- namely, the 19 counts
of breaking or entering a motor vehicle with which Warner had
been charged in a North Carolina state court. With the
enhancement, the probation officer calculated Warner’s offense
level to be 23, which, when combined with Warner’s criminal
history category of II, resulted in a Guidelines sentencing
range of 51 to 63 months’ imprisonment. The probation officer
noted that if the district court accepted the government’s
position, as stated in the plea agreement, that § 2K2.1(b)(6)(B)
did not apply, Warner’s Guidelines range would instead be 33 to
41 months’ imprisonment.
Warner objected to the presentence report’s recommendation
to apply § 2K2.1(b)(6)(B), arguing that the “enhancement is
inapplicable for two distinct reasons; first, because [he]
neither ‘used’ nor ‘possessed’ the firearm, and second, because
there was no ‘connection with another felony offense.’”
The government filed a response entitled “Objections to the
Presentence Report,” in which it noted that it had agreed with
Warner in his plea agreement that § 2K2.1(b)(6)(B) did not apply
and requested that the district court therefore not apply the
enhancement. In the same filing, however, the government
proceeded to state that it had revised its position regarding
when certain types of North Carolina felony offenses count as
5
felonies for federal sentencing purposes, and it clearly
indicated that, under its new position, the enhancement would
properly apply to Warner. It stated:
The probation office correctly notes in paragraph 19
of the Presentence Investigation Report that in the
course of the crime of conviction a firearm was
possessed in connection with another offense, that
being breaking and entering multiple motor vehicles in
violation of North Carolina General Statute 14-56, a
class I felony. However, at the time that the plea
agreement was made, the Government’s position on how
to treat a North Carolina class I offense for purposes
of United States v. Simmons, 649 F.3d 237 (4th Cir.
2011), resulted in a finding that 14-56 was not a
felony for federal purposes because it was not a crime
punishable by imprisonment in excess of a year as
applied to this Defendant and his criminal history.
The Government’s approach to Simmons analysis at the
time the plea agreement was made treated a North
Carolina class I offense committed on or after
December 1, 2011 as a felony punishable by
imprisonment in excess of a year, only where the
defendant was a North Carolina criminal history
category V or higher. On June 5, 2013, the date of
the offense conduct, Warner was a North Carolina
criminal history category II. Thus, Warner’s criminal
history was not sufficient to pass Simmons analysis as
applied at the time of the plea agreement and his
conduct was not considered “another felony offense”
for purposes of 2K2.1.
On December 1, 2011 the North Carolina Justice
Reinvestment Act increased North Carolina state
penalties such that all felonies could be punishable
by a term of imprisonment exceeding one year. Despite
these December 1, 2011 changes, concerned that the
changes may not satisfy the Appellate Courts, the
Government maintained the conservative position that
the changes were not a cure to the Simmons issue. As
of August 4, 2014, the Government has taken the new
position, in light of United States v. Valdovinos,
2014 WL 3686104 (4th Cir. July 25, 2014), that the
December 2011 North Carolina Justice Reinvestment Act
cured any infirmity in the class H and I North
6
Carolina state felonies such that these offenses are
felonies for federal purposes regardless of the
criminal history category of the offender.
(Emphasis of “felony” or “felonies” in original; other emphasis
added). The government explained, however, that “[b]ecause [it]
made its agreement with Warner prior to this new official
position on Simmons, [it] [was] not seek[ing] the 2K2.1(b)(6)(B)
enhancement.” Instead, it “respectfully ask[ed] that the Court
honor the agreement of the parties.”
Arguing that the government’s statement to the court
breached the plea agreement, Warner filed a motion for specific
performance of the agreement, requesting that the district court
(1) declare the government to be in breach of the plea
agreement; (2) strike the government’s objection from the
docket; (3) direct the government to file a new objection
agreeing with defense counsel’s arguments as to why the
enhancement was inapplicable; and (4) transfer Warner’s case to
a different district judge for sentencing. Warner explained
that the parties’ agreement that the enhancement does not apply
“was based on the facts of the case, not on any kind of legal
issue involving Simmons or Valdovinos.”
At the sentencing hearing, the district court denied
Warner’s motion for specific performance, concluding that the
government had “complied with the conditions of the plea
agreement.” The court thereupon concluded that the enhancement
7
was applicable and therefore that Warner’s advisory Guidelines
range was 51 to 63 months’ imprisonment. After hearing from
Warner and his family, the court imposed a downward-variance
sentence of 48 months’ imprisonment.
From the district court’s judgment, Warner filed this
appeal, seeking specific performance of his plea agreement and
resentencing before a different district judge. He also
challenges two aspects of the district court’s Guidelines
calculations.
II
Warner contends that the government breached its promise in
the plea agreement to inform the sentencing court “that the 4-
level increase under 2K2.1(b)(6)(B) does not apply” when it
submitted a filing that informed the court that it no longer
agreed with this position. According to Warner, even though the
government “asked the court not to apply the enhancement,” it
nonetheless indicated at the same time that it “viewed that
request as factually and legally wrong,” “mak[ing] clear that
the government would have recommended the 4-level enhancement
but for its agreement with Warner.” Warner contends further
that the government’s breach was material because “[e]mails
between Warner’s counsel and the prosecutor demonstrate[] that
8
the agreement depended on the government’s recommendation that
§ 2K2.1(b)(6)(B) did not apply.”
The government argues that it agreed to “recommend against
application of [the] four-level increase” and that it did so
“unequivocally and consistently.” It acknowledges that its
discussion of the Simmons issue “provided the district court
with new and relevant legal authority that tended to support
application of the enhancement,” but it contends that it “had a
responsibility to inform the district court of that authority,”
maintaining that, “[a]s an officer of the court, the prosecutor
could not object to the probation officer’s recommendation that
the enhancement be applied without grappling with the legal
authority that might support application of the enhancement.”
Finally, the government argues, even if it breached the plea
agreement, the breach would not be material because “[b]oth
Warner and the district court recognized the position of the
United States as recommending that the four-level enhancement
under § 2K2.1(b)(6)(B) should not apply to Warner.”
When interpreting plea agreements, “we draw upon contract
law as a guide to ensure that each party receives the benefit of
the bargain,” and to that end, we “enforce a plea agreement’s
plain language in its ordinary sense.” United States v. Jordan,
509 F.3d 191, 195 (4th Cir. 2007) (internal quotation marks and
citation omitted). Although we employ traditional principles of
9
contract law as a guide, we nonetheless give plea agreements
“greater scrutiny than we would apply to a commercial contract”
“[b]ecause a defendant’s fundamental and constitutional rights
are implicated when he is induced to plead guilty by reason of a
plea agreement.” Id. at 195-96 (internal quotation marks and
citation omitted). At bottom, “when a plea rests in any
significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.”
Santobello, 404
U.S. at 262.
In the plea agreement before us, the government agreed that
it would, jointly with the defendant, “recommend that the Court
make the following findings and conclusions as to the
U.S.S.G.: . . . The parties agree that the 4-level increase
under 2K2.1(b)(6)(B) does not apply [and] [t]he United States
will inform the Court . . . of all facts pertinent to the
sentencing process.” (Emphasis added). The agreement’s use of
the verb “recommend” in the context of what the government
promised to advise the court is, to be sure, somewhat awkward,
but the substance of the promise that the government made is
clear: The government agreed to advise the court of its
position that U.S.S.G. § 2K2.1(b)(6)(B) does not apply in this
case.
10
That the government clearly understood the precise nature
of this promise -- i.e., to represent its position, not simply
to make a recommendation -- is demonstrated by both the email
exchanges leading to the plea agreement and the government’s
filing with the court after execution of the plea agreement.
Before the agreement was signed, the government acceded to
Warner’s demand for a stipulation that the enhancement did not
apply, stating that it “[did] not have information that would
implicate [Warner] under [§ 2K2.1(b)(6)(B)]” and that it could
agree with the position that “[the enhancement] does not apply.”
Similarly, after execution of the agreement and before
sentencing, the government recognized that it had not agreed in
the plea agreement simply to make a recommendation, but that it
had agreed to state its position that the enhancement did not
apply. The nature of its promise was confirmed when it advised
the court that since signing the agreement, it “ha[d] taken the
new position” that the enhancement would apply, although it
urged the court to honor the agreement despite the government’s
“new position.” (Emphasis added). Thus, in giving this
explanation, the government again recognized that it had agreed
to represent its position on the enhancement, not to recommend
whether to apply the enhancement. The difference is
significant.
11
The government’s advice to a court that an enhancement
applies but that the court should nonetheless not apply the
enhancement in the particular circumstances of the case, for
whatever reason, is substantively different from a statement by
the government to the court that it holds the position that the
enhancement does not apply. On receiving the former advice, the
court would feel free to reject the advice as a mere
recommendation. But on receipt of the latter advice, the court
would not feel so free to reject the government’s position,
unless and until it conducted a careful review of the record and
the law and determined that it disagreed with the government on
the applicability of the enhancement.
It is true, as the government argues, that even as the
government announced its “new position” on the enhancement’s
applicability to Warner, it repeatedly requested that the
sentencing court “not apply the enhancement” on the ground that
the court should “honor the agreement of the parties.” But the
government’s plea agreement obligation was more than simply
recommending that the court not impose the enhancement; it had
promised to advise the court of its position that the
enhancement “does not apply.” And thus, even though the
government did recommend to the district court that it should
not apply the enhancement, the government breached its promise
to tell the court that the enhancement did not apply.
12
We also conclude that the government’s breach was material.
“Central to [the] determination of the materiality of a breach
is ‘the extent to which the injured party will be deprived of
the benefit which he reasonably expected.’” United States v.
Scruggs, 356 F.3d 539, 543-44 (4th Cir. 2004) (quoting
Restatement (Second) of Contracts § 241 (1981)). In this case,
the record amply demonstrates that the government’s willingness
to agree that § 2K2.1(b)(6)(B) was inapplicable was critical to
Warner’s acceptance of the plea agreement, as manifested by the
negotiations. The government nonetheless argues that any breach
cannot be material because “[b]oth Warner and the district court
recognized the position of the United States as recommending
that the four-level enhancement . . . should not apply to
Warner.” But this argument again overlooks the distinction
between requesting that the court not impose the enhancement
because of the parties’ plea agreement, as opposed to jointly
advising the court of the parties’ position that the enhancement
was inapplicable.
We therefore conclude that the government breached its plea
agreement with Warner, albeit with a pure motive, and that the
breach was material, leaving open only the issue of the
appropriate remedy.
When a court of appeals finds a material breach of a plea
agreement and the defendant seeks to withdraw his guilty plea,
13
the court should remand the case to the district court to assess
whether, in the circumstances of the case, it would be
appropriate to grant that relief or the lesser relief of
specific performance of the agreement. See Santobello, 404 U.S.
at 263. If, however, the defendant seeks only specific
performance, then the court should honor that election, see
United States v. Brown,
500 F.2d 375, 378 (4th Cir. 1974), and
remand with direction that the defendant “be resentenced by a
different judge,”
Santobello, 404 U.S. at 263.
In this case, Warner has unequivocally elected to have
specific performance. Accordingly, we vacate Warner’s sentence
and remand the case for resentencing before a different district
judge.
Because of Warner’s election for specific performance, we
must, of course, also enforce the provision in his plea
agreement by which he waived his appeal rights. Therefore, we
do not reach his challenges to the district court’s calculations
under the Sentencing Guidelines.
SENTENCE VACATED AND CASE REMANDED
14
