by Sam Rutherford

The U.S. Court of Appeals for the First Circuit held that the Government implicitly breached its plea agreement with the defendant where it agreed to recommend a sentence no higher than the top-end of the sentencing Guidelines range by submitting a sentencing memorandum detailing the defendant’s criminal conduct unrelated to the current case. The U.S. District Court for the District of Puerto Rico latched onto this submission as justification for not only imposing a significant upward variant sentence for the current offense but also an extremely harsh consecutive sentence when revoking the defendant’s supervised release for a prior conviction.

Background

Yavier Mojica-Ramos (“Mojica”) was convicted of possession of a firearm in furtherance of drug trafficking in 2013. He was released from prison in 2018 and began serving the five-year supervised released portion of his sentence.

On October 23, 2020, during the height of the COVID-19 pandemic, undercover Puerto Rico Police Bureau officers were monitoring for violations of an executive order that required wearing facemasks in public places. The officers stopped Mojica for not wearing a facemask. During this encounter, the officers discover two Glock pistols modified to be machine guns, 62 rounds of ammunition, and some narcotics in a bag Mojica was carrying. He was arrested and charged in federal court.

In 2021, Mojica entered into a plea agreement with the Government in which he agreed to plead guilty to possessing two machine guns in exchange for the Government’s promise to recommend a sentence no higher than the top-end of the sentencing Guidelines range, which was calculated as 36-46 months in prison. The District Court accepted this plea and scheduled a sentencing hearing.

Prior to sentencing, the Government submitted a lengthy memorandum requesting a sentence of 46 months. The memorandum, however, also included 250 photos extracted from Mojica’s cellphone depicting numerous firearms and large quantities of drugs. The Government submitted a video from Mojica’s phone showing someone who looked like him recklessly brandishing an assault rifle. The Government said it submitted this evidence to prove that Mojica is “an individual with a penchant for high-capacity firearms, drugs, and criminal activity” and requested that the District Court consider it as “additional information” of his criminal tendencies. The Government specifically stated that the “danger to the community and the serious nature of the offense should be considered exceptional in this case.”

Mojica’s attorney filed a motion to compel specific performance of the plea agreement, arguing that the Government had implicitly breached the agreement by advocating for an upward variant sentence in its sentencing memorandum. The Government, for its part, argued that all it had done was candidly provide the court with “information relevant to the imposition of a sentence.”

The District Court denied Mojica’s motion, ruling that the Government did not breach its agreement because it specifically recommended a sentence of 46-months. The court also ruled that the cellphone photos and video were sufficiently authentic and reliable for consideration at sentencing, and they were relevant to sentencing because they suggest “a lack of respect for the law and a threat to public safety.”

At sentencing, Mojica’s attorney requested a sentence at the low-end of the range, 37-months, and detailed mitigating factors to support this request. The Government formally requested a sentence of 46-months but then immediately discussed how Mojica’s conducted was “part of a broader problem here in Puerto Rico where, frankly speaking, armed violent crime is a disease.” The Government also cited high murder rates in Puerto Rico and commented that Mojica is a repeat firearm offender.

Unsurprisingly, the District Court rejected both sentencing recommendations and imposed an upward variant sentence of 72 months. The court then revoked Mojica’s supervised release for the 2013 conviction and imposed a statutory maximum sentence of 60 months consecutive to the 72-month term, resulting in a total sentence of 11 years in prison.

Mojica’s lawyer objected to these sentences as being both procedurally and substantively unreasonable, but the court rejected this argument. It clarified that the basis for its sentence was the information provided by the Government in its sentencing memorandum. The court expressly stated that the Government’s information proved that Mojica’s prior prison term “did not serve the objective of punishment or deterrence,” so an upward variant sentence was necessary.

Mojica timely appealed, and the First Circuit reversed and remanded for a new sentencing hearing in both cases before a different judge.

Analysis

The sole issue on appeal was whether the Government had implicitly breached the plea agreement by submitting the extraneous evidence of Mojica’s additional criminal conduct in its sentencing memorandum and then referencing that information in relation to Puerto Rico’s high crime rate at the sentencing hearing. Because Mojica’s attorney had astutely objected to the Government’s post-plea conduct and filed a motion to compel specific performance of the plea agreement, the Court was permitted to review this claim de novo as a question of law for “plenary review.” United States v. Gonczy, 357 F.3d 50 (1st Cir. 2004).

“[W]hen 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 v. New York, 404 U.S. 257 (1971). The Court observed that technical compliance with the terms of the agreement is not sufficient; instead, the Government’s “overall conduct” must be “reasonably consistent with making such a recommendation.” United States v. Canada, 960 F.2d 263 (1st Cir. 1992).

In the present case, the Government argued that the sentencing memorandum and related evidence from Mojica’s cellphone did not breach the plea agreement because the submission was consistent with its obligation to provide relevant sentencing information to the court. Although acknowledging the Government’s duty to provide the court with information that has “an easily discernible relationship to the offense conduct,” United States v. Saxena, 229 F.3d 1 (1st Cir. 2000), and its right to rebut “factual assertions made by defense counsel,” United States v. Miranda-Martinez, 790 F.3d 270 (1st Cir. 2015), the Government may not present this information in a way that “subverts” the plea agreement, the Court explained.

In fact, the Government may not discharge its plea obligations in an “impermissibly equivocal, apologetic, or begrudging” manner. United States v. Davis, 923 F.3d 228, 239 (1st Cir. 2019). Nor may the Government use its duty of candor to the court “as an instrument for thwarting” their plea agreement obligations. Saxena. Therefore, “when a prosecutor … gratuitously offers added detail garbed in implicit advocacy, a court might well find that the prosecutor is actually seeking a result in a manner that breaches the agreement.” Miranda-Martinez.

This is exactly what occurred in Mojica’s case, the Court noted, stating that even if it accepted the Government’s contention that it was required to disclose the cellphone photos and video to the District Court, it nonetheless overstepped the bounds of permissible advocacy by describing Mojica’s conduct as “exceptional.” The Court stated that the Government certainly knew that describing criminal behavior as “exceptional” is essentially the same as requesting an upward variant sentence, since such sentences must be based on conduct that “falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply,” Rita v. United States, 551 U.S. 338 (2007), or where the offense involves “idiosyncratic facts,” United States v. Bruno-Campos, 978 F.3d 801 (1st Cir. 2020), or “especially heinous” conduct. United States v. Rivera-Morales, 961 F.3d 1 (1st Cir. 2020).

The Government’s description of Mojica’s offense as “exceptional” and his “penchant” for crime “implied” that the Government believed the case warranted an upward variant sentence, according to the Court. And while the Government was permitted to explain the basis for its high-end sentencing recommendation, it “went beyond presenting pertinent information in an objective manner to gratuitously framing Mojica’s case as exceptional or extraordinary.” Thus, the Court concluded that this was an implicit breach of the plea agreement.

Moreover, the Government’s sentencing memorandum did not merely draw facts and law to the court’s attention as the law permits. United States v. Clark, 55 F.3d 9 (1st Cir. 1995). Instead, the Government unabashedly stated that it provided the cellphone photos and video as “additional evidence” to show Mojica’s “likely” participation in other criminal conduct. Of course, the Government was well-aware that uncharged criminal conduct provides the basis for an upward variant sentence under 18 U.S.C. § 3553(a), United States v. Gallardo-Ortiz, 666 F.3d 808 (1st Cir. 2012), so it impliedly breached the plea agreement by advocating for such a sentence in its sentencing memorandum, the Court reasoned. Notably, however, the Court stated that the Government’s conduct was particularly egregious in this instance by failing to provide “any corroborating evidence that Mojica was involved in the alleged firearm and drug crimes depicted in the cellphone content.”

Thus, despite telling the court that it was requesting a within-guidelines sentence, under the totality of circumstances here, the Court determined that the substance of the Government’s presentation could only be understood as emphasizing Mojica’s wrongdoing and advocating for the imposition of a higher sentence than the agreed-upon term, which unquestionably amounted to an implicit breach of the plea agreement. Gonczy.

The final issue was determining the correct remedy. Mojica was certainly entitled to resentencing on the most recent machine gun conviction due to the Government’s breach of the plea agreement, but what about the sentence he received for his revoked community supervision in the 2013 case? The Court held that this sentence too must be vacated because it could not “calculate how the government’s error and breach may have affected the perceptions of the sentencing judge.” United States v. Alcala-Sanchez, 666 F.3d 571 (9th Cir. 2012). Although the Court refused to order any particular sentence on remand, it did instruct that Mojica must be resentenced in both cases by a different judge. See Clark and Canada.

Conclusion

Accordingly, the Court vacated Mojica’s sentences for the unlawful possession conviction and the supervision revocation and remanded both cases for resentencing before a different judge. See: United States v. Mojica-Ramos, 103 F.4th 844 (1st Cir. 2024).

Writer’s note: This is yet another case involving U.S. District Judge Francisco A. Besosa, who is infamously pro-government and known for imposing harsh sentences. Judge Besosa is so notoriously anti-defendant that in one recent appeal the defendant attempted to avoid plain error review by pointing to the judge’s long track record of refusing to hold the government to the promises it makes in plea agreements as justification for the defendant’s failure to object to the government’s breach its agreement at sentencing. United States v. Cortés-López, 101 F.4th 120 (1st Cir. 2024). The First Circuit also reversed the sentence imposed by Judge Besosa in that case and remanded it for resentencing before a different judge. Defendants likely to be sentenced by Judge Besosa would be well-advised to negotiate plea agreements that contain great specificity concerning what the government may and may not do at sentencing and that limit the information that may be presented to the court.

Additional source: United States v. Mojica-Ramos, 585 F. Supp. 3d 171, reconsideration denied, 2022 U.S. Dist. LEXIS 33630 (D.P.R. 2022).  

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