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U.S. v. ALMODOVAR

May 26, 2000

UNITED STATES
V.
JUAN ALMODOVAR.



The opinion of the court was delivered by: Ludwig, District Judge.

MEMORANDUM

Defendant Juan Almodovar moves to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. On June 8 and July 6, 1999, evidentiary hearings were held on whether the government's refusal to file a downward departure motion under U.S.S.G. § 5K1.1 amounted to bad faith. For the following reasons, a finding of bad faith will be entered.

On February 9, 1993, defendant, pursuant to a written plea agreement, pleaded guilty to possession with the intent to distribute more than 50 grams of crack cocaine, 21 U.S.C. § 841(a)(1), and use of a firearm during a drug trafficking offense, 18 U.S.C. § 924(c)(1).*fn1 On December 14, 1995, defendant was sentenced to 210 months imprisonment, five years supervised release, and a $100 special assessment.*fn2 Defendant appealed his sentence, which was affirmed by our Court of Appeals.*fn3 United States v. Almodovar, 100 F.3d 948 (3d Cir. 1996). Certiorari was denied. Almodovar v. United States, 519 U.S. 1140, 117 S.Ct. 1013, 136 L.Ed.2d 890 (Feb. 18, 1997). On February 13, 1998, defendant filed a § 2255 motion, citing four grounds, one of which, bad faith, was added by amendment.*fn4

I. Background

Before the time of the sentencing, the government had decided not to file a § 5K1.1 motion. In April and May, 1994, two attorneys replaced those who had handled the case for the government and the defense from its inception. This occurred more than 14 months after defendant had pleaded guilty and after seven sentencing continuances that had been granted for the supposed purpose of cooperation. The new special assistant United States attorney was unwilling to consider filing a downward departure motion. It was apparent that he and the new defense counsel immediately became highly antagonistic to one another. Defense counsel filed a blizzard of motions attacking the guilty plea and various aspects of the government's case. It was unclear who had been the instigator of their animosity. But, as stated in the sentencing opinion, "the government's refusal to file a 5K1.1 motion appeared to be the direct result of a personality clash between these counsel and, perhaps, because of other personal considerations on the part of the new prosecutor." Memorandum opinion, March 14, 1996 at 2.

No hearing was held on defendant's motion for specific performance of the plea agreement, given the state of the law at that time. However, the credibility of the government's explanation for not filing the substantial assistance motion was highly questionable.*fn5 Defendant had given essential assistance to the government both before and after his guilty plea, and his deficits as a witness were discovered by the government even before the first scheduled sentencing date. In other words, the government, a year and numerous continuances before it decided not to file the departure motion, was well aware of the main reasons it articulated in its sentencing memorandum for not doing so — defendant's non-disclosure of his real identity and prior record. See memorandum opinion, March 14, 1996 at 7. A distinct possibility existed that the departure motion was being withheld for extraneous reasons and not in the spirit of prosecutorial fairness that has traditionally characterized our United States Attorney's Office.

Nevertheless, the law in 1995 offered only the narrow window of the unconstitutionality of government misconduct as a basis for specific enforcement of cooperation agreements. See supra n. 2, citing United States v. Paramo, 998 F.2d 1212, 1219 (3d Cir. 1993). The sentencing opinion expressed serious concerns regarding the government's — and defendant's — approach to a just result in the case. See memorandum opinion, March 14, 1996 at 8. However, there appeared to be no cognizable basis to compel a § 5K1.1 motion or to depart from the onerous guidelines range — other than a reduction from Criminal History Category IV to III because of the marked overrepresentation of defendant's criminal record. See memorandum opinion, March 14, 1996 at 11-12. Accordingly, a sentence of more than 17 years custody was imposed, far more than any other of the 14 defendants in the Chappel Davis organization including Davis himself. See id. at 6 (reviewing the other sentences).

In the § 2255 hearings in 1999, much of the uncertainty as to what had happened at the time of sentencing was dispelled. Testimony was given by the AUSA who had prosecuted the case until a month before the government announced that a § 5K1.1 motion was out of the question. Explanations were received from the new prosecutor, the previous and new defense counsel, and defendant testified. What was depicted was that the new prosecutor had determined not to permit a § 5K1.1 motion regardless of the lengthy history of the case and the understanding reached between the new defense counsel and his predecessor to give defendant another opportunity for further cooperation. That opportunity was the agreed-upon basis for the seventh sentencing continuance, and it was the denial of that opportunity that constitutes the specific instance of bad faith on the government's part. The government's contention that defendant and his counsel did not take advantage of the opportunity must, under the credited circumstances, be rejected.

II. The Law of Specific Performance

In United States v. Isaac, 141 F.3d 477, 484 (3d Cir. 1998), our Court of Appeals held that the government's refusal to move for downward departure under a written plea agreement giving it "sole discretion" within the terms of the agreement is reviewable by district courts for "bad faith." There, when the government did not file the motion at sentencing, defendant moved to enforce the plea agreement. Id. Considering Supreme Court precedent*fn6 and other courts of appeals decisions,*fn7 Isaac determined that performance of the guilty plea agreement is to be reviewed using contract law principles. It articulated that when a defendant has entered into a cooperation agreement, the government's refusal to file a § 5K1.1 motion must be "based on an honest evaluation of the assistance provided and not on considerations extraneous to that assistance." Isaac, 141 F.3d at 484. Because the plea "agreement itself is part of the inducement for the defendant to enter a guilty plea," the government must conscientiously adhere to its terms. United States v. Huang, 178 F.3d 184, 187 (3d Cir. 1999).

Isaac's reasoning followed the analysis in United States v. Rexach, 896 F.2d 710 (2d Cir.), cert. denied, 498 U.S. 969, 111 S.Ct. 433, 112 L.Ed.2d 417 (1990), which delineated a subjective standard of good faith. This approach injects the "implied obligation of good faith and fair dealing" into every written guilty plea agreement. Id. at 714.

It is defendant's burden to establish by a preponderance the government's violation of the plea agreement. United States v. Huang, 178 F.3d at 187 (citing United States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991)). Contract law principles guide the specific performance of plea agreements. However, "a cooperative plea agreement in a criminal sentencing proceeding under current law is not altogether the same as a civil contract dispute, although civil contract law is important and useful in its interpretation." Id. at 187-88 (citing United States v. Khan, 920 F.2d 1100, 1105 (2d Cir. 1990).) See United States v. Nolan-Cooper, 155 F.3d 221, 235 (3d Cir. 1998) ("In determining whether the plea agreement has been breached, courts must determine `whether the government's conduct is inconsistent with what was reasonably understood by the defendant when entering the plea of guilty.'") (quoting United States v. Badaracco, 954 F.2d 928, 939 (3d Cir. 1992)). Moreover, these agreements must also be construed within the confines of the Sentencing Guidelines and applicable sentencing laws.

The sentencing judge has "a very limited role in reviewing the Government's refusal to move for a downward departure." United States v. Huang, 178 F.3d at 188 (citing United States v. Isaac, 141 F.3d at 483). However, the court has an important interest in seeing that the representations by both the government and the ...


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