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