Tuesday, April 24, 2012

Guideline Enhancement Not Mentioned in Rule 11(c)(1)(C) Plea Agreement Applies to Defendant

In United States v. Dahmen, No. 11-1521 (March 27, 2012), the Third Circuit addressed an interesting issue of whether the Government violated a Rule 11(c)(1)(C) plea agreement when it recommended a Chapter 4 enhancement that was not specifically mentioned in the plea agreement.

The Defendant pleaded guilty to transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a) and possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B). The agreement specified the base offense level for each count and referenced certain sentencing enhancements pursuant to Chapters 2 and 3 of the Guidelines, but made no mention of any enhancements pursuant to Chapter 4. The agreement also contained a waiver of appellate rights subject to three limited exceptions: (1) if the Government appealed; (2) if the sentence exceeded the statutory maximum; or (3) if the sentence exceeded the applicable Guidelines range. The agreement also noted that its “stipulations [were] not binding on the Court and [did] not preclude the parties from bringing to the attention of the United States Probation Office or the Court any other information.”

Before accepting the plea, the District Court clarified that although the plea agreement indicated that the stipulations made between the parties were not binding on the court, that language was incorrect. The Court explained that if it accepted the plea, the stipulations would be binding because the nature of the stipulations fall under the classifications set forth in Rule 11(c)(1)(C).

The Government objected to the PSR claiming that the Guidelines were subject to enhancement pursuant to USSG §4B1.5(b), which applies to defendants who engaged in a pattern of activity involving prohibited sexual conduct. The Probation Officer agreed and amended the PSR.

The Defendant did not contest the application of the enhancement but instead argued for a variance on the basis that USSG §4B1.5(b) was redundant because the factors it addressed were already contemplated by USSG §§2G1.3, 2G2.2 and 4A1.1, all of which were included in the plea agreement. The Court disagreed, denied the variance and sentenced the Defendant within the enhanced guideline imprisonment range.

First, the Third Circuit determined that the appropriate standard of review was plain error because of the Defendant’s failure to object in the District Court, citing Puckett v. United States, 556 U.S. 129, 134 (2009).

Second, the Circuit rejected the defense argument that once the District Court deemed itself bound by a written plea agreement that made no mention of the enhancement in question, it was prohibited from applying the unmentioned enhancement at sentencing. The District Court referred only to the paragraphs of the plea agreement which addressed only Chapters 2 and 3 of the Guidelines, relating to calculations of base offense level, conduct-related enhancements, and adjustments for multiple counts. Neither the District Court nor the written plea agreement mentioned §4B1.5(b) or any other Chapter 4 enhancements, which relate to criminal history.

Finally, the Circuit did not reach the Defendant’s issue that his sentence was unreasonable, as his appellate waiver prevented such review.

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