On Appeal from the District Court of the Virgin Islands (D.C. No. 04-cv-00044). District Judge: Raymond L. Finch.
The opinion of the court was delivered by: Jordan, Circuit Judge
Before: FISHER, JORDAN and STAPLETON, Circuit Judges.
Pursuant to identical plea agreements, Irvine Hodge, Jr. and his brother Devin*fn1 were sentenced at the same proceeding to life imprisonment for the murder of a jewelry store owner on St. Thomas in the U.S. Virgin Islands. Devin's counsel timely appealed his client's sentence. Hodge's counsel, however, filed a litany of motions but never a notice of appeal. In an earlier decision, we vacated Devin's sentence because the government had breached its plea agreement by implicitly requesting a life sentence. United States v. Hodge, 412 F.3d 479 (3d Cir. 2005). In the meantime, having lost the opportunity to directly appeal, Hodge moved for collateral relief under 28 U.S.C. § 2255 and argued, as his brother had, that the government had breached its plea agreement with him. The District Court denied Hodge's motion. For the reasons that follow, we will reverse the District Court's denial of Hodge's 2255 motion, vacate his sentence, and remand with instructions for the District Court to reenter the sentence so that Hodge has a second opportunity to file a direct appeal.
In 1998, Hodge and his brother robbed a jewelry store and killed the store's owner. They were charged with first degree murder, in violation of 18 U.S.C. § 924(j)(1); interfering with commerce, in violation of 18 U.S.C. § 1951; and tampering with a witness by killing, in violation of 18 U.S.C. § 1512(a).
Hodge entered into a plea agreement with the government in April 2000. In exchange for his guilty plea to a charge of first degree murder and his promise to make restitution for the robbery, Hodge obtained from the government a promise to seek dismissal of the remaining charges, to recommend that the sentencing judge give him credit for accepting responsibility for the crime, and "to make no specific sentencing recommendation other than to request that the sentence be within the guideline range." (App. at 47-50.) As part of a "package deal," Devin signed an identical plea agreement. See Hodge, 412 F.3d at 480, 482. On May 2, 2000, the District Court of the Virgin Islands conducted a joint change-of-plea hearing for Hodge and Devin, at which the brothers were represented by separate counsel.*fn2
The following month, Hodge and the government entered into a supplemental plea agreement. Under its terms, Hodge "agree[d] to provide truthful, complete, and accurate information and testimony" and to cooperate fully with an ongoing government investigation. (App. at 107-11.)The government, in turn, promised to "[m]ake the nature and extent of [Hodge's] cooperation known to the Court" and to "[m]ake a motion to allow the Court to depart from the Sentencing Guidelines," provided that Hodge had fulfilled the conditions of the deal. (App. at 111.) The government retained sole discretion to decide whether and to what degree Hodge had cooperated.
The District Court sentenced Hodge and Devin at a single proceeding on March 6, 2002. In response to Hodge's allocution, in which he expressed remorse for his crime, the prosecutor remarked:
[I]t always amazes me that once a person gets convicted and spends some time in jail, pending sentencing, two things happen. They usually find religion, and they usually find great remorse. ... Whether the remorse is genuine or not, I leave for a higher power to determine. But at some point this defendant has to realize that there are grave consequences for your actions. (App. at 156.) He then "ask[ed] the Court to fashion a sentence as fair and as just, and that sends a clear message: You may go out with the intention of  committing a robbery, but if someone dies while you're committing that robbery, there are grave consequences to your actions." (App. at 157.) After Devin allocuted, the prosecutor made similar statements.*fn3 The record does not indicate that the government made any mention to the Court of Hodge's cooperation, and the government did not file a motion to allow the Court to depart from the sentencing guidelines. Hodge and Devin each were sentenced to life imprisonment.
After announcing the sentences, the District Court instructed Hodge and Devin that they had ten days in which to file their notices of appeal. Devin timely filed his notice of appeal, and, as earlier noted, we vacated his sentence, holding that the government had breached the plea agreement by implicitly requesting a sentence of life imprisonment. Hodge, 412 F.3d at 487. On remand, the District Court resentenced Devin to a term of 450 months.
Unlike his brother, Hodge did not file a direct appeal. Instead, on March 11, 2002, his counsel filed a motion to correct Hodge's sentence pursuant to Fed. R. Crim. P. 35. That same day, the Court entered an amended judgment of sentence to correct certain clerical errors.*fn4 On April 2, 2002, Hodge's counsel then filed what was styled as a "Motion to Have Conceded the Motion to Correct Sentence" and, eight months later, something he called an "Information Motion." In the Information Motion, Hodge's counsel noted:
That I am advised by Defendant that he recently sought, pro se, to have the Court appoint counsel for his appeal. However, Defendant was advised that no notice of appeal was filed.
Undersigned counsel is of the opinion that the post[-]trial motion[s] filed by Defendant on March 11, 2002 and April 2, 2002 are appropriate for an Order of the District Court before Defendant's timeliness for filing an appeal, if necessary, can be ascertained. Otherwise the Defendant is ...