Reminding a sentencing court that the §3553(a) factors are important, having the defendant request probation and even making a proportionality argument may breach a provision of a plea agreement prohibiting a party from requesting departures or variances below the guideline range.

 

            The Third Circuit found defendants breached the terms of their plea agreements and vacated the sentences in United States v. Yusuf and United States v. Campbell, 993 F.3d 167 (3d 2021).  These cases involved plea agreements that prohibited either party from seeking departures or variances.  The defense in these two cases made very different sentencing arguments that the government argued violated that provision of the plea agreement.  Both defendants received below guideline range sentences and the government appealed.

 

            Appellant Campbell was charged with being a felon in possession of a firearm in violation of 18 U.S.C. 922(g), after a gun was discovered in his car following a traffic stop.  Despite agreeing not to request any departures or variances, defense counsel reminded the court of the importance of §3553(a) factors, that the guidelines were only a “starting point,” and further submitted letters of support asking for leniency.  When Appellant addressed the court, he asked for a probationary sentence.  The government objected to these arguments.  Nevertheless, the District Court granted a very significant variance, sentencing Campbell to only a third of the time calculated in the guideline range. On appeal, the Third Circuit ruled that Campbell’s request for a non-custodial sentence, after being prompted by his attorney, was an explicit request for a below the guideline sentence in violation of the plea agreement.  The circuit court further held that nothing in Federal Rule of Criminal Procedure 32(i) allows a defendant to ask the court to apply the §3553(a) factors when the plea agreement clearly prohibits the parties from seeking variances.  The sentence was vacated, and the case remanded. 

             In the second case, counsel for Appellant Yusuf, who was charged with wire fraud and aggravated identity theft, acknowledged the plea agreement but then asked the District Court to consider the co-conspirator’s sentence.  Specifically, the defense told the court that it should not ignore that the co-conspirator’s sentence was below the bottom of Yusuf’s range, despite similar conduct and culpability.  The government countered that the difference in ranges was due to their respective criminal histories, and then argued that the defense had breached the plea agreement by asking the court to consider the co-conspirator’s sentence.  In response to the government’s objections, the District Court ruled that the defense’s “proportionality” argument did not breach the terms of the plea, and then proceeded to depart downwards and grant a variance below the guideline range.  The Third Circuit described this as a “closer question.”  Defense counsel did not cross a line simply by bringing the co-conspirator’s sentence to the court’s attention.  However, by arguing that the co-conspirator’s sentence made the bottom of the guideline range unreasonable for Yusuf, the defense did indeed breach the terms of the plea agreement. The case was remanded for resentencing.   

             Lastly, Campbell also appealed the denial of his motion to suppress the weapon found in his car during the traffic stop.  Campbell was pulled over because his license plates were partially obscured.  Also, after police ran the plates, they discovered he was driving with a suspended license.  During the stop, the officer thought he saw a gun while Campbell was looking for his registration and a current insurance card.  After suggesting he look in the central console, the officer confirmed his suspicions and then spotted another gun when Campbell opened the glove compartment.  The Third Circuit rejected Campbell’s argument that the officer unconstitutionally prolonged the stop, noting that only five minutes transpired between the time Campbell was pulled over to the time he was arrested.  Moreover, the officer suggesting Campbell look in the central console for the insurance card was a valid request during a traffic stop.   

When Considering a Request By the Government to Modify the Terms of Supervised Release, a Court May Not Impose Any New Terms That Would Create a Greater Deprivation of Liberty Than Necessary to Achieve The Sentencing Goals Established in 18 U.S.C. §3553(a).

     In United States v. Murray, Nos. 11-3196, 11-3197 (3d Cir. September 5, 2012), the Third Circuit considered the question of when it is appropriate for a district court to modify the conditions of supervised release.  District courts have the authority under 18 U.S.C. §3583(e)(2) to change the terms of supervised release after proper consideration of the factors listed in 18 U.S.C. §3553(a).  Federal Rule of Criminal Procedure §32.1(c) requires that a hearing be held before any change in supervision conditions.  Also, the defendant has a right to attend the hearing with his attorney and present mitigating arguments.  The Third Circuit held, in this case, that a district court may only grant a request to modify the terms of supervised release when the changes will not result in a greater deprivation of liberty than is necessary to achieve the purposes of sentencing set forth in §3553(a). When approving new terms and conditions, the district court must explain how the changes are consistent with the goals of sentencing.  The appellate court also reiterated the purpose of supervised release is to promote reintegration into society, not to further punish defendants. 

    Turning to the facts of this case, appellant Charles Murray pled guilty to one count of illicit sexual conduct with a minor (18 U.S.C. §2423(b)) in the District of New Jersey and one count of possession of child pornography (18 U.S.C. 2252(a)(4)(b)) before the Eastern District of Pennsylvania.  He served an aggregate term of 95 months in prison for these offenses and was also sentenced to two concurrent terms of three years of supervised release.  Both federal courts imposed special conditions of supervised release related to the nature of his offenses.

    When Mr. Murray was released from prison, he relocated to a town near Pittsburgh and supervision was transferred to the Probation Office in the Western District of Pennsylvania.  Probation sought to modify the terms of supervision to include additional requirements.  Mr. Murray opposed the modifications and additions, arguing that he had not violated any of the existing terms and that Probation had not provided any reason why the original conditions were not sufficient. In granting Probation’s request, the district court simply stated that it did not find any “meaningful difference” between the existing conditions and the modified terms.  The district court then granted the request making only a conclusory statement that the new conditions comported with §3553(a) and would be “positive” for Murray.  

    On review, the Third Circuit first found that appellant’s relocation to another federal district was a qualifying “changed circumstance,” giving the district court authority to review Probation’s request for a modification of the terms and conditions of supervised release.  But the Third Circuit remanded the case because the district court’s ruling was too vague and conclusory, failing to discuss and apply the §3553(a) factors.  The appellate court ordered the district court to clarify why the new conditions were not greater than necessary to achieve the §3553(a) sentencing goals, especially since there was no suggestion that the original terms were not sufficiently effective. The Third Circuit particularly expressed the need for restrictions on access to sexually oriented materials depicting adults to be narrowly tailored, in light of the First Amendment.