by Sam Rutherford

The U.S. Court of Appeals for the Third Circuit held that the Government breached its promise in a plea agreement with the defendant to recommend a sentence at the low-end of the sentencing Guidelines range by emphasizing the “heinous” nature of his crime and its impact on the victims in response to the defendant’s presentation of mitigating evidence to justify a low-end sentence.

Background

In September 2017, on the island of Saint Croix in the U.S. Virgin Islands, Stephen O’Dea and Kathryn Duncan were asleep in their home when three masked men broke in. They beat O’Dea and threatened to rape Duncan if the couple did not tell them where their money was hidden. O’Dea revealed that his wallet and money were at a nearby farm, so the bandits forced the couple to take them there. They stole the money, stripped the couple naked and forced them to their knees, and then fled in O’Dea’s Jeep.

The police tracked the men to a local gas station where they were arrested. Stolen property and handguns were recovered from O’Dea’s Jeep. The men were identified as Luis Davis, Joel Rivera, and Chriss Cepeda.

Davis was indicted by a grand jury on 12 counts for violating both Virgin Islands and federal law. He entered into a plea agreement with the Government in which he pleaded guilty to three federal counts—brandishing a firearm during a violent crime, carjacking, and being a felon in possession of a firearm. The Government agreed to drop the remaining counts, recommend a seven-year statutory minimum sentence on the brandishing conviction, and “a sentence at the low end of the applicable guideline range” on the remaining counts.

The parties’ sentencing memoranda recommended low-end sentences consistent with the plea agreement, and Davis’ attorney submitted mitigation evidence in support of that joint recommendation, which consisted of Davis’ abusive childhood, intellectual disabilities, drug addiction, the negative influence of his adopted brother, and the lack of helpful interventions throughout his life. Counsel also presented a neuropsychologist’s report claiming that childhood head trauma had impacted Davis’ cognitive development and executive function.

The U.S. District Court for the District of the Virgin Islands determined the applicable Guidelines sentence for the brandishing conviction was the statutory minimum of 84 months’ imprisonment while range for the other counts was 87 to 108 months’ imprisonment, to be served consecutive to the brandishing sentence. Defense counsel reiterated the mitigation evidence presented in Davis’ sentencing memorandum and requested a sentence at the low-end of the range, for a total of 171 months in prison.

In response, the prosecutor recounted details of Davis’ crime and his cruelty toward the victims. He discussed the ongoing emotional trauma Davis “inflicted on” the couple. Davis caused Duncan to suffer “frustration,” “hostility,” “anger,” and “bitterness,” and to abandon her plans to retire in Saint Croix because she “no longer felt safe” there. He blamed Davis for the couple’s breakup, claiming that Davis’ crime “generated [a] conflict” and “underlying tension” such that “[t]hey are no longer together.”

The prosecutor also pointed out that, despite his intellectual disabilities and impulse control issues, Davis had “ample opportunity” to “tap[] out” of the crime but chose not to. The prosecutor further argued that he was “skeptical” of Davis’ neurological report and found it to be “self-serving.” He also said that while the report “might be mitigating” and “probably support[ed]” a low-end sentence, it didn’t “explain away [Davis’] conduct.” But the prosecutor did say he was not challenging the admissibility to the neurological report.

Finally, the prosecutor explained that the reason the Government entered into the plea agreement with Davis was because the victims were “traumatized” and “did not want to go through” testifying. He also said the victims were afraid they would be “targeted” by associates of Davis if they testified, so the Government negotiated the plea to avoid further emotional impact to the couple.

Defense counsel objected to this argument, saying that it “sound[ed]” like the prosecutor was “close” to breaching its agreement to recommend a low-end sentence and that such a sentence is “sufficient and not greater than necessary.” Counsel also pointed out that the prosecutor’s dismissive posture toward Davis’ mitigation evidence undermined the plea agreement. The prosecutor countered that he was not “deviating” from the promised recommendation but was merely offering a balanced picture of Davis’ conduct and “perspectives from the victims.”

The District Court overruled Davis’ objection, ruling that the Government had not breached the plea agreement because, while the prosecutor’s reasons for the low-end sentencing recommendation had more to do with the victims than the appropriateness of the sentence itself, he had in fact recommended the agreed upon sentence. The District Court explained that the law does not require the parties to arrive at the same sentencing recommendation for the “same reasons” to avoid a breach. The court ultimately sentenced Davis to consecutive sentences of 84 months for the brandishing conviction and 102 months on the carjacking and felon-in-possession convictions, for a total term of 186 months. Davis timely appealed.

Analysis

Davis raised three interrelated issues on appeal: the Government’s sentencing allocution breached its plea agreement with him by (1) emphasizing the heinous nature of his crimes and the impact they had on the victims, (2) dismissing his mitigation evidence, and (3) failing to argue that the § 3553(a) factors support a low-end Guidelines sentence. The first issue the Court had to resolve concerning these claims was whether they had been adequately preserved.

The Government contended that Davis had either waived or forfeited all of his claims. “Waiver is the intentional relinquishment or abandonment of a known right,” while “forfeiture is the failure to make the timely assertion of a right.” United States v. Dowdell, 70 F.4th 134 (3d Cir. 2023) (cleaned up). Although courts cannot address waived arguments, they can review a forfeited claim for plain error. See United States v. Dahmen, 675 F.3d 244 (3d Cir. 2012) (citing Puckett v. United States, 556 U.S. 129 (2009)).

The Court concluded that Davis’ attorney had waived her objections to the prosecutor’s statements about the mitigation evidence by saying that she was “comfortable” with the prosecutor’s agreement that the neurological report was admissible, which “resolved” her concerns about a potential breach. Davis’ objection turned on facts set forth in that report, so by acknowledging that the prosecutor’s agreement to the report’s admissibility resolved her concerns about his response to its content, counsel waived any claim that the prosecutor breached the agreement through his statements designed to cast doubt on the facts set forth in the report, the Court reasoned. See United States v. Joseph, 730 F.3d 336 (3d Cir. 2013).

But this did not mean that defense counsel waived her earlier objections to the prosecutor’s statements concerning the heinous nature of Davis’ crime or its impact on the victims. As the Court noted, “[w]aiving one argument waives another only if they both ‘depend on the same legal rule’ and ‘the same facts.’” Quoting Joseph. Because defense counsel’s agreement concerning the admissibility of the neurological report resolved her concerns about the prosecutor’s statements challenging the mitigation evidence involved facts different than those concerning her objections to the prosecutor’s statements about the crime and victims, her objection to those statements constituting a breach of the plea were not waived, according to the Court. On the contrary, the Court stated that “Davis never expressly withdrew his first objection to the Government’s comments about his conduct, character, and the victim impact.”

The Government also contended that defense counsel forfeited Davis’ breach objections by only stating that the prosecutor’s allocution “sound[ed]” like it was “close” to a breach, without specifically arguing that the prosecutor’s statements actually constituted a breach. But the Court explained that courts employ a “flexible, common-sense interpretation” of objections and do not require “any particular incantation.” United States v. Miller, 833 F.3d 274 (3d Cir. 2016). Here, defense counsel’s objection recited “the Government’s allegedly offending statements, used the word ‘breach,’ and explained why the prosecutor’s comments undermined the agreement.” This was sufficient to preserve Davis’ arguments that the Government breached the plea agreement by “(1) criticizing [his] conduct and character; (2) emphasizing the victim impact; and (3) failing to tether its recommendation to the § 3553(a) factors,” claims which the Court reviewed de novo. United States v. Yusuf, 993 F.3d 167 (3d Cir. 2021).

Turning to the merits, the Court recognized that the Government’s allocution did not involve an “express” breach of the plea agreement because it made the promised sentencing recommendation. “But Santobello v. New York, 404 U.S. 257 (1971), ‘and its progeny proscribe not only explicit repudiation of the government’s assurances, but … [also] forbid end-runs around them.’” United States v. Badaracco, 954 F.2d 928 (3d Cir. 1992). A breach occurs when the Government’s “overall conduct is ‘inconsistent with what was reasonably understood by the defendant when entering’ a guilty plea.” United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998). Thus, the Court explained that the Government must honor both the spirit and the letter of plea agreements, Badaracco, requiring courts to “scrutinize closely” whether the Government has fulfilled its promises. Nolan-Cooper.

Third Circuit case law holds that the Government implicitly breaches its plea agreement by repeatedly underscoring the reprehensibility of a defendant’s criminal conduct. See, e.g., United States v. Moscahlaidis, 868 F.2d 1357 (3d Cir. 1989); Nolan-Cooper. As the Court observed, these cases “establish that, when the Government highlights the reprehensibility of the defendant’s conduct or extensively criticizes his character, culpability, or blameworthiness, it essentially recommends a higher sentence.” And that’s exactly what happened in Davis’ case, according to the Court. The prosecutor repeatedly referenced how Davis “disregarded what was right; [and] disregarded what he was inflicting upon th[e] victims.”

But this was not all the prosecutor did to breach the agreement, according to the Court. He also concentrated his sentencing statements on victim-impact evidence, highlighting the harm to and ongoing fear suffered by the victims as a result of Davis’ crimes. While acknowledging that it had never held that victim-impact evidence undermines an agreement to recommend a low-end sentence, the Third Circuit has held that such presentations constitute a breach where the prosecutor agreed to make no recommendation at all or to not request an above-Guidelines sentence. See United States v. Hodge, 412 F.3d 479 (3d Cir. 2005). Notably, the Court noted that the First Circuit has explicitly held that the presentation of victim-impact evidence does breach a promise to recommend a low-end sentence. See United States v. Gonczy, 357 F.3d 50 (1st Cir. 2004).

Taken together, the Court concluded that these cases indicate a breach occurs whenever the presentation of “victim-impact evidence [ ] implicitly support[s] a higher sentence.” Thus, the Court ruled that by devoting much of his allocution “to the physical and emotional trauma inflicted on Duncan and O’Dea,” the prosecutor breached the Government’s promise to recommend a low-end sentence because his “vivid recapitulation of Davis’s crime and the victims’ plight supported a harsh, not a lenient, sentence.” Citing United States v. Johnson, 187 F.3d 1129 (9th Cir. 1999).

The Government attempted to avoid the obvious conclusion that its comments at sentencing concerning the heinousness of Davis’ crime and its impact on the victims constituted a breach by pointing out that nothing in the plea agreement itself prevented it from making such statements. But the Court was unimpressed with the argument, stating that the “absence of language in the plea agreement prohibiting the Government from discussing Davis’s criminal conduct and the victim impact does not absolve its breach.” As the Third Circuit has previously instructed, the Government may not “rely on a general provision of the plea agreement permitting it to comment on the facts of the case to defeat the purpose of a specific provision.” Nolan-Cooper.

Additionally, the prosecutor’s comments were not justified as a means of ensuring that the District Court did not impose a downward variance sentence, according to the Court. While it is true that the Government may defend against a downward variance request by presenting aggravating evidence so long as the plea agreement does not prohibit such arguments, United States v. Yanez-Rodriguez, 555 F.3d 931 (10th Cir. 2009), the Court stated that Davis never requested a downward variance sentence, and the District Court never indicated it was considering one.

The Court therefore concluded that the prosecutor breached the plea agreement to recommend a low-end sentence through his sentencing allocution, which inappropriately focused on the heinous nature of Davis’ crime and its impact on the victims. Although the prosecutor did expressly recommend a sentence at the low-end, the “Government must do more than recite the magic words that it ‘recommends’ a low-end sentence—it must also avoid statements that undermine the recommendation,” the Court admonished. Citing Badaracco. In other words, it must not make the agreed-upon recommendation “with a wink and a nod.” Lacombe v. Warden James T. Vaughn Corr. Ctr., 95 F.4th 127 (3d Cir. 2024).

Having concluded that a breach occurred, the final issue was whether the Government cured its breach. Relying on the U.S. Supreme Court’s decision in Puckett, supra, the Third Circuit has adopted a two-factor test to guide this inquiry: “First, we gauge whether cure is needed or even possible. Second, we decide whether the attempted cure sufficed to remedy any harm from the breach.” United States v. Cruz, 95 F.4th 106 (3d Cir. 2024). But a cure is only effective “if it is prompt, clear, and gives the defendant the benefit of his bargain.” Id.

Even assuming the Government could have cured its breach in this case, the Court stated that the record indicated that did not occur. “If, after addressing Davis’s conduct and the victim impact, the prosecutor had pivoted and argued that despite the aggravating factors, other considerations merited a low-end Guidelines sentence, that might have sufficed to cure the breach,” the Court stated. Instead, after defense counsel lodged an objection to the prosecutor’s allocution, he did nothing more than offer “cursory assurances” that he was standing by the agreement and then emphasized the only reason the Government entered into the agreement was to spare “the victims an emotional trial.” While these statements explained the Government’s reason for the plea, it did not recommend a low-end sentence or explain why that sentence was appropriate for Davis. Thus, the Court held that the Government failed to cure its breach.

Conclusion

Accordingly, the Court remanded the case for resentencing before a different judge. See: United States v. Davis, 105 F.4th 541 (3d Cir. 2024).

Editor’s note: Anyone interested in scenarios in which the Government doesn’t explicitly disavow its sentencing recommendation obligation under a plea agreement but still expounds upon the defendant’s reprehensible conduct and lasting harm suffered by the victim(s) is encouraged to read the Court’s full opinion. 

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