2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-27-2005

USA v. Hodge

Precedential or Non-Precedential: Precedential

Docket No. 02-1817

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1

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No. 02-1817

UNITED STATES OF AMERICA

v.

DEVIN HODGE, 

 Appellant

______________

On Appeal from the District Court of the Virgin Islands,

Division of St. Thomas and St. John

District Judge: The Honorable Thomas K. Moore

District Court No. 99-CR-00006-03

________________

Argued April 20, 2005

________________

Before: NYGAARD, RENDELL, and SMITH, Circuit Judges

(Filed: June 27, 2005)
2

Jorge E. Rivera-Ortiz

P.O. Box 1845

Manati, Puerto Rico 00674-1845

Attorney for Appellant

Nelson L. Jones

Office of the United States Attorney

United States Courthouse

5500 Veterans Building, Ste. 260

Charlotte Amalie, St. Thomas

USVI, 00802-6924

Attorney for Appellee

_________________

OPINION OF THE COURT

__________________

SMITH, Circuit Judge.

Devin Hodge pleaded guilty to murdering the owner of

a St. Thomas jewelry store. Devin’s brother, Irvine, pleaded

guilty to the same crime as part of a “package deal.” The

brothers were sentenced at the same proceeding to life in

prison by the District Court of the Virgin Islands. Devin

argues on appeal that the government breached its plea

agreement, and that the District Court conducted a deficient

plea colloquy in part because it was unaware that his plea was

linked to his brother’s. We hold that the government
Devin also argues on appeal that the District Court 1

erroneously adjusted his sentence upward under Blakely v.

Washington, 524 U.S. 296 (2004). In the wake of Booker v.

United States, 125 S. Ct. 738 (2005), normally we would remand

his case to the District Court for re-sentencing. See United States

v. Davis, 407 F.3d 162 (3d Cir. 2005). As we have explained,

however, we remand for re-sentencing or plea withdrawal because

we hold that the government breached its plea agreement with

Devin in its allocution at his sentencing. To foreclose the

government from repeating the infirm language at a possible resentencing, we will dispose of Devin’s breach-of-plea argument

now on the merits rather than remanding solely under Booker.

3

breached its plea agreement, and we will vacate Devin’s

sentence and remand for re-sentencing or withdrawal of his

plea. We further hold that the District Court did not plainly

err in conducting Devin’s plea colloquy. We write to provide

guidance for the District Court should a new plea colloquy be

required on remand, and for other district courts faced with

the sensitive task of testing voluntariness in package deal plea

situations.1

I.

In May 1999, a federal grand jury indicted Devin

Hodge, Irvine Hodge, and a third defendant for murder of the

owner of the Emerald Lady Jewelry Store in Charlotte
These crimes may be related to earlier proceedings in this

2

Court against Irvine for robbery of the same store three years

earlier. At Devin’s sentencing, the government stated that the

murder at the Emerald Lady was prompted by Devin’s “fantasy”

that “he could make a difference in his brother’s case by killing

another human being.” We affirmed the conviction and sentence

of Irvine for armed robbery at the Emerald Lady in United States v.

Hodge, 211 F.3d 74, 75 (3d Cir. 2000).

The original indictment and first superseding indictment 3

are not in the record. In the Second Superseding Indictment, the

Hodge brothers and their co-defendant were charged with (1)

interfering with commerce under 18 U.S.C. § 1951, (2) possession

of a firearm during a crime of violence under 18 U.S.C. §

924(c)(1), and (3) first degree murder under 18 U.S.C. § 924(j)(1). 

Each count of the indictment also alleged aiding and abetting under

18 U.S.C. § 2.

The Third Superseding Indictment charged the Hodge 4

brothers and their co-defendant with (1) interfering with commerce

under 18 U.S.C. § 1951, (2) first degree murder under 18 U.S.C. §

924(j)(1), and (3) tampering with a witness by killing under 18

U.S.C. § 1512(a)(1)(A), (2)(A). 

4

Amalie, St. Thomas, and the theft of jewelry from the store.2

Devin pleaded not guilty to that indictment, which was styled

as a second superseding indictment. In March 2000, Devin 3

pleaded not guilty to a third, superseding indictment.4

As early as mid-1999, however, at Devin’s initiation,

Devin and the government were engaged in intense
5

discussions about a plea bargain. The United States Attorney

wrote in July 1999 that the government was “seriously

considering” asking that Devin plead guilty to first degree

murder and possession of a firearm in relation to a crime of

violence. In return, the government would recommend that

Devin be sentenced at the lower end of the guideline range

and that he receive the maximum, three-point credit for

extraordinary acceptance of responsibility under the United

States Sentencing Guidelines. 

In late-April 2000, the government sent Devin’s

attorney a draft plea agreement. The body of the cover letter

stated:

I am enclosing herewith a copy of a

proposed plea agreement in the above captioned

matter. The proposed agreement is the entire

integrated agreement of the parties. 

Additionally, the plea offer from the

government is a lock plea. That is, each of your

clients must accept the plea as a condition of the

government’s acceptance of the plea.

As you know, while the government will

recommend three points off for extraordinary

acceptance of responsibility if your clients each

accept the plea, the government is not the final

arbiter of what United States Sentencing
6

Guidelines range the United States Probation

Office may calculate. As such, the government

makes no representation as to what probation’s

[sic] calculations, or the Court’s position on

those calculations, may be.

Four days after receiving this letter, Devin pleaded guilty. 

The written plea agreement provided that Devin would plead

guilty to first degree murder, the second count of the Third

Superseding Indictment. In return, the government agreed to

“seek dismissal” at sentencing of the remaining counts, and to

“recommend that [Devin] receive credit for acceptance of

responsibility, assuming [Devin] does in fact clearly

demonstrate acceptance of responsibility.” While the

government reserved its right to allocute at sentencing, it

agreed “to make no specific sentencing recommendation other

than to request that the sentence be within the guideline

range.” 

The final paragraph of the written plea agreement

provided that “[t]he parties agree that no other promises have

been made in connection with this matter, and that this Plea

Agreement constitutes the entire agreement between the

United States Attorney for the District of the Virgin Islands

and the defendant in the above-referenced case.” The

agreement did not mention that Devin’s plea was “locked,” or

otherwise conditioned upon, Irvine’s identical plea.
7

Later that month, the District Court held a joint

change-of-plea hearing for Devin and Irvine. Devin’s and

Irvine’s attorneys indicated that the pleas were identical and

agreed to a “dual inquiry.” District Judge Moore stated: 

Even though you’ve gone over and completed

an application to plead guilty, each of you, and a

separate plea agreement which it appears to me

has – when I looked at it before – has been

signed, I want to make sure that I have – that the

file reflects what you and your attorneys have

gone over individually.

Devin and Irvine reviewed their individual applications and

their plea agreements, and they and their attorneys initialed

each page of those documents. 

Judge Moore explained separately to Devin and Irvine

that the maximum penalty for pleading guilty to first degree

murder was death. Devin’s attorney objected, noting that his

client was a minor at the time of the offense. When the

government conceded that the death penalty would not apply

to Devin, Judge Moore responded, “[a]nd the government

agrees for both Mr. Irvine Hodge and Mr. Devin Hodge, that

death is not an option[?]” The government agreed. Judge

Moore summarized that, “[s]o for all legal and practical

purposes, insofar as these two defendants, Mr. Irvine Hodge,

Jr. and Mr. Devin Hodge, the maximum possible sentence is
8

life imprisonment[?]” Both Devin’s and Irvine’s counsel

agreed. 

Judge Moore asked Devin whether he understood what

the government had promised to do in return for his guilty

plea. Devin answered, “Yes, your Honor.” Prompted by

Judge Moore, Devin elaborated: “Well, I understand it would

be in a guideline range. Also I understand – well, the charges

I’m being charged with, what would be dropped.” Judge

Moore summarized: “So the government, once we arrive at a

guideline range, the government will recommend that the

sentence be within that, and they’re not going to ask for any

particular sentence, except that it be within that range.” 

Devin answered in the affirmative. “Is there anything else

about the agreement you don’t understand that we need to go

over?” Judge Moore asked. “No, I understand everything

fully,” Devin answered.

Devin and Irvine were questioned separately regarding

rights they were waiving by pleading guilty. Judge Moore

asked: “Do you understand our system, and that you don’t

have to give [your rights] up, nobody can force you to give

them up, but if you do waive those rights, what you’ll do if

you plead guilty, then they’ll be waived and the next thing

will be the sentencing?” The brothers each answered

affirmatively. Judge Moore added, “you understand also that

you have the privilege against self-incrimination, which

means that you have the right to stand on your plea of not
9

guilty and to remain silent. No one can force you to testify

against yourself or to give other incriminating testimonial

evidence, indicating that you’re guilty as charged?” Again,

the brothers answered affirmatively. 

Judge Moore then homed in on voluntariness:

The Court: Now, you are the only ones who

can plead – change your plea to a

charge, this Count 2, and it’s –

your plea [is] valid only if it’s

your free and voluntary act. So,

Mr. Irvine Hodge, has anyone 

forced you in any way to enter a

plea to this charge?

Irvine: No, Your Honor.

The Court: Anybody threatened you or

promised you something?

Irvine: No, Your Honor.

The Court: When I say “promised,” I’m

talking about something other

than what we went over in the

plea agreement.

Irvine: No, Your Honor.

The Court: How about you, Mr. Devin

Hodge; anyone forced you,
10

forcing you now or bring any kind

of pressure on you to coerce you

in changing your plea?

Hodge: No, Your Honor. I’m doing it of

my own.

The Court: I’m sorry?

Hodge: I did it on my own will.

The Court: All right. Thank you. So Mr.

Irvine Hodge, if you were to enter

a plea of guilty, it would be your

own free and voluntary act?

Irvine: Yes, Your Honor.

The Court: Mr. Devin Hodge, you’ve already

agreed that that’s the case?

Hodge: Yes, Your Honor. 

Both Irvine and Devin pleaded guilty to the second count of

the Third Superseding Indictment. 

In March 2002, Devin, Irvine and their co-defendant

were sentenced at the same hearing. At the hearing, Judge

Moore announced that he would hear allocutions from both

Devin and Irvine. Devin’s attorney responded: “Your Honor,

I hope by your hearing both allocutions, that the Court is not

fixed on a predisposition to sentence these brothers equally.” 
11

Judge Moore replied: “Not necessarily. That’s why I want to

hear both of them.”

Devin’s attorney argued that, pursuant to a provision of

the plea agreement, Devin had shown such extraordinary

acceptance of responsibility that the District Court should

depart downward five points from the Guidelines. The

attorney argued that Devin had been a “totally ignorant boy”

at the time of the Emerald Lady robbery and “fastidiously”

had turned his life around. Government counsel countered

that it was unlikely that Devin had turned his life around, as

the pre-sentencing report noted that Devin also was charged

with a murder that occurred five months after the murder at

the Emerald Lady. He concluded:

[T]he point is, Your Honor, that someone that

evil, to have complete transformation in a fouryear period, it begs the question, is it genuine or

isn’t it? 

And does the community at large have to

wonder, once his sentence is completed and he’s

released back into the community, whether it’s a

genuine change or not.

. . . 

We ask the Court to fashion a sentence

that is fair, that is just, but that is also fair and

just to [the victims of the shooting] and their

families. Because Devin Hodge had his chance

to be a positive influence in the community. 
Gwendolyn Rawlins, a security guard at the Emerald Lady, 5

was injured during the robbery.

The District Court exercised jurisdiction over this case 6

under 48 U.S.C. § 1612 (providing the District Court of the Virgin

Islands the jurisdiction of a District Court of the United States) and

4 V.I.C. § 32 (providing the District Court of the Virgin Islands

original jurisdiction in all causes arising under the Constitution,

12

Larry Davis [the owner of the Emerald

Lady] was a positive influence in this

community. He doesn’t get a second chance. 

His family doesn’t get a second chance.

Gwendolyn Rawlins’ life has been completely

traumatized. She doesn’t have a second chance.

. . .

Once again, Mrs. Rawlins has asked to

speak to the Court, but I ask the Court to

fashion a sentence that is fair and just to the

victims in this case.5

After hearing a victim impact statement from Mrs.

Rawlins, who asked that Devin “bear the full penalty of the

law,” Judge Moore concluded that, in light of his knowledge

of the case, what he had heard at the change-of-plea hearing,

and the terms of the plea agreement, he had no alternative but

to sentence both of the Hodge brothers to life in prison. The

District Court entered its judgment, noting Devin’s guilty plea

and his life sentence, on March 6, 2002. Devin filed a notice

of appeal on March 26, 2002, arguing solely that the District

Court ignored Third Circuit law on “exceptional post[-

]offense rehabilitation.”6
treaties, and laws of the United States). We have appellate

jurisdiction under 28 U.S.C. § 1291 over this timely appeal from a

final order. See Hodge, 211 F.3d at 75.

Devin adds other breach-of-plea arguments on appeal, 7

including that the government failed to advise the District Court of

the nature and extent of his cooperation. We do not reach these

arguments, as we conclude on other grounds that the government

breached its agreement.

13

II.

A.

Devin argues on appeal that at his sentencing the

government reneged on its promise in the plea agreement to

recommend no specific sentence. He contends the

government implicitly requested a life sentence by rhetorically

asking, “does the community at large have to wonder once his

sentence is completed and he’s released back into the

community, whether it’s a genuine change or not?” He also

maintains that the government impliedly sought a life

sentence by asking for a sentence that was “fair and just” to

the victims of his alleged crime, including the wife of the

deceased owner of the Emerald Lady. Even if such breaches

were inadvertent, Devin contends, vacatur of his sentence

would be required because under Santobello v. New York, 404

U.S. 257 (1971), prosecutors must carefully be held to plea

agreements. 

7

While Devin does not claim to have raised his breachof-plea argument at sentencing, we may consider that

argument under United States v. Moscahlaidis, 868 F.2d 1357
This doctrine frequently is traced to Santobello, which 8

states:

This phase of the process of criminal justice, and

the adjudicative element inherent in accepting a plea

of guilty, must be attended by safeguards to insure

the defendant what is reasonably due in the 

circumstances. Those circumstances will vary, but

a constant factor is that when a plea rests in any

significant degree on a promise or agreement of the

prosecutor, so that it can be said to be part of the

inducement or consideration, such a promise must

be fulfilled.

14

(3d Cir. 1989). There, the government argued that the

defendant-appellant waived his breach-of-plea argument by

failing properly to object at his sentencing hearing. 868 F.2d

at 1360. “Even if we agree that appellant did not properly

object to the plea agreement violation at the sentencing

hearing,” we stated, “such failure does not constitute a

waiver.” Id. We rejected the notion that breach-of-plea

arguments should be reviewed for plain error, and instead

held that we must exercise plenary review. Id. See also

United States v. Queensborough, 227 F.3d 149, 156 (3d Cir.

2000) (“whether the government violated the terms of a plea

agreement is a question of law subject to plenary review”).

We have considered in numerous precedential opinions

whether the government breached a plea agreement by what it

said at sentencing. While our inquiry in such cases tends to

be fact-specific, the basic rules are clear. The government

must “adhere strictly to the terms of the bargains it strikes

with defendants.” Queensborough, 227 F.3d at 156.8
404 U.S. at 262-63.

15

Because defendants entering pleas forfeit a number of

constitutional rights, “courts are compelled to scrutinize

closely the promise made by the government in order to

determine whether it has been performed.” Id. The question

for a reviewing court is “whether the government’s conduct is

consistent with the parties’ reasonable understanding of the

agreement.” Id. In other words, we apply contract law

standards to plea agreements; a “rigidly literal” interpretive

approach is not allowed. United States v. Nolan-Cooper, 155

F.3d 221, 236 (3d Cir. 1998).

The logical thread running through our relevant cases

is most easily traced chronologically. In United States v.

Crusco, 536 F.2d 21 (3d Cir. 1976), the government promised

to take no position on sentencing. Id. at 23. Yet, at the

sentencing hearing, the prosecutor stated that, “[a]s to

defendant’s status, elevation in organized crime hierarchy. . . . 

I think this shows the type of individual he is. I think it shows

the importance in organized crime that he has and also shows

the danger to the community that this man has by being out on

the street.” Id. at 25. We held that the government’s

characterization was “a transparent effort to influence the

severity of [appellant’s] sentence.” Id. at 26. We reasoned

that “[o]nly a stubbornly literal mind would refuse to regard

the Government’s commentary as communicating a position

on sentencing[,]” and concluded that “[t]he government’s

final argument that it would have breached the plea bargain

only if it had actually recommended the terms of a sentence is

thus answered. We believe that such a strict and narrow

interpretation of its commitment is untenable and we must
16

reject it.” Id. at 26. On remand, the appellant was allowed to

withdraw his guilty plea. Id. at 27.

In contrast, the prosecutor in United States v. Miller,

565 F.2d 1273 (3d Cir. 1977) (per curiam), pledged to make

no recommendation regarding the sentence to be imposed. Id.

at 1274. At the sentencing hearing, the government argued

that the appellant’s crime could not be excused by inducement

because the alleged inducement occurred a year-and-a-half

before the crime. Id. at 1274. The appellant maintained that

this statement amounted to a sentencing recommendation. 

We explained that, under Crusco, the promise to take no

position as to sentencing was different than the promise to

make no recommendation as to the terms of the sentence. Id.

at 1275. We concluded that Miller presented the latter

situation: 

Here, the Government has specifically promised

only not to make recommendation as to the

sentence. The difference between the terms is

elementary, for the promise not to recommend is

narrow, speaking only to the sentence to be 

imposed, whereas a promise to take no position

speaks to no attempt at all to influence the

defendant’s sentence. 

Id. Accordingly, we held that the government did not breach

its agreement not to recommend a sentence by arguing that the

appellant’s excuse for his criminal activity was invalid, and

we affirmed the District Court’s judgment. Id.

We further elaborated on the distinction between
17

taking no position as to a sentence and not recommending a

sentence in Moscahlaidis. In that case, the government

vowed that it would “not take a position relative to whether or

not a custodial sentence shall be imposed on [appellant] but . .

. will recommend to the sentencing Judge that if a custodial

sentence is imposed on [appellant], it will not exceed one

year.” Id. at 1358. In its sentencing memorandum, the

government referred to the appellant’s “moral bankruptcy,”

denounced his “demonic” efforts to preserve his “fetid

empire,” and stated that he was “not just a white-collar

criminal.” Id. at 1359. The memorandum concluded that, per

its plea agreement, the United States would not recommend a

sentence; “however, should the court elect to impose a

custodial sentence on [appellant], the United States is bound

to recommend that the custodial term not exceed one year

imprisonment.” Id. The memorandum added that “[t]his

recommendation is part of the plea agreement between the

defendant and the United States. It is not binding upon the

court.” Id. 

We rejected the government’s argument that it kept its

agreement. “If the government wanted to be limited only to

not recommending a sentence,” we declared, “it should have

promised not to recommend a sentence. Instead, the

prosecutor promised to take no position as to whether a

custodial sentence should be imposed. The government must

strictly comply with the terms of the agreement it made with

appellant.” Id. at 1362-63. We held “that the statements

made by the prosecutor which offered opinions and drew

conclusions about appellant’s character violated the terms of

the plea agreement.” Id. Further, we held that the

government’s “comment about [appellant] not being ‘just a
18

white collar criminal’ was taking [a] position relative to

whether a custodial sentence be imposed and thus violated the

plea agreement.” Id. We explained that in this Circuit “the

rule is to remand the case to the district court for it to

determine whether to grant specific performance or allow

withdrawal of the plea.” Id.

In the present case, the government promised to “make

no specific sentencing recommendation other than to request

that the sentence be within the guideline range.” We first

must determine what Devin “reasonably understood [he]

would be receiving from the government in return for [his]

plea of guilty.” Nolan-Cooper, 155 F.3d at 239. Though

“reasonably understood” suggests a partially subjective

inquiry, in practice the inquiry is purely objective. See id.

(stressing the plain language of the agreement and eschewing

a “rigidly literal” interpretive approach). We conclude that a

reasonable person would have understood the plain language

of Devin’s plea agreement to mean that the government

would not make any specific sentencing recommendation. 

The government apparently agrees, as it argues that nothing it

said at sentencing “explicitly, indirectly, or tacitly

recommended a life sentence.” 

The government broke its promise. The prosecutor

asked “whether the community at large [had] to wonder, once

[Devin’s] sentence is completed and he’s released back into

the community, whether [he made] a genuine change or not.” 

The plain implication of that statement was that Devin should

not be released back into the community. The prosecutor

added that Devin “had his chance to be a positive influence in

the community.” The plain implication of that statement was
We think this is especially true given that Mrs. Gwendolyn 9

Rawlins, one of Devin’s alleged victims, asked at sentencing that

Devin “bear the full penalty of the law.”

19

that Devin should not be given another chance to be a positive

influence in the community. The prosecutor stated that the

murder victim did not get a second chance to be a positive

influence in the community and urged the Court to “fashion a

sentence that is fair and just to the victims in this case.” The

plain implication of that statement was that a fair and just

sentence for Devin would deny him a second chance. In 9

short, “[o]nly a stubbornly literal mind would refuse to regard

the Government’s commentary as communicating a [specific

recommendation] on sentencing.” Crusco, 536 F.2d at 26. 

By recommending a “life sentence in all but name,” United

States v. Pollard, 959 F.2d 1011, 1024 (D.C. Cir. 1992), the

government breached its agreement with Devin.

This holding accords with Moscahlaidis, Miller, and

Crusco. In Moscahlaidis, we warned that “[i]f the

government wanted to be limited only to not recommending a

sentence, it should have promised not to recommend a

sentence. Instead, the prosecutor promised to take no position

. . . . The government must strictly comply with the terms of

the agreement it made with appellant.” 868 F.2d at 1358. 

Here, evidently seeking to leave its allocution options open,

the government not only promised not to recommend a

sentence, it promised not to recommend a “specific” sentence. 

Fairly construing its allocution, however, the government

breached even that narrow promise. While Moscahlaidis and

Miller encourage the government to use “no

recommendation” language to preserve linguistic leeway at
We believe our decision today also accords with the 10

holding in Pollard, which somewhat resembles this case. In

Pollard, the government “stated it would seek a ‘substantial period

of incarceration,’ but agreed not to ask for a life sentence.” 959

F.2d at 1022. Pollard maintained that the government’s forceful

allocution implied to the district judge that a life sentence was

appropriate. Id. at 1024; see also id. at 1035 (“the repeated use of

superlatives implied an appeal for the maximum.”) (Williams, J.,

dissenting). The majority held that the district court avoided clear

error in concluding otherwise, explaining that “[t]he government

did not ask for a ‘life sentence in all but name,’ because it never

introduced explicitly or implicitly the notion or concept of a

maximum sentence; nor did it ever use words that could be thought

synonymous with a life term.” Id. at 1024 (Silberman, J., joined by

Ginsburg, R. B., J.). In contrast to Pollard, here the government

introduced, implicitly, the notion of a maximum sentence; indeed,

it did so clearly and repeatedly. Consequently, even if we were to

apply Pollard’s deferential standard of review, we have no doubt

that the government violated its plea agreement.

20

sentencing, that leeway is not infinitely elastic. Indeed,

Moscahlaidis declares that the government will be “limited”

to its promise not to recommend a sentence. Id. As the

government here exceeded those broad limits, this case aligns

with Moscahlaidis or Miller, and fundamentally fits with

Crusco. As in Crusco, we will remand for the District Court

to determine whether to grant specific performance or allow

withdrawal of the guilty plea. See Moscahlaidis, 868 F.2d at

1358.10

B.

Devin further argues on appeal that the District Court’s

plea colloquy was deficient because the District Judge did not

know Devin’s plea was contingent on Irvine’s identical plea,
21

and vice versa. Had the District Court been properly

informed about the package deal and had Devin been properly

questioned, he contends that he would have been dissuaded

from pleading guilty. He adds that the District Court also

erred by failing to ask whether his willingness to plead guilty

“result[ed] from prior discussions between the attorney for the

government and the defendant or the defendant’s attorney.” 

Fed. R. Crim. P. 11(d) (repealed in relevant part); United

States v. Mustafa, 238 F.3d 485, 491 (3d Cir. 2001). 

United States v. Vonn, 535 U.S. 55 (2002), held that a

defendant who fails to object to Rule 11 error must carry the

burden of showing on appeal that the error was “plain,

prejudicial, and disreputable to the judicial system.” Id. at 65. 

In other words, a defendant must show that: “(1) an error was

committed; (2) the error was plain, that is, clear and obvious;

and (3) the error affected the defendant’s substantial rights.” 

United States v. Dixon, 308 F.3d 229, 234 (3d Cir. 2002)

(quoting United States v. Syme, 276 F.3d 131, 143 (3d Cir.

2002)). When those elements are satisfied, an appellate court

in its discretion may order a correction if the error “seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citing United States v. Stevens, 223 F.3d

239, 242 (3d Cir. 2000)).

We conclude that the District Court did not commit

plain error during the Rule 11 colloquy. Though the terms of

the packaging agreement have not been disclosed to us, the

government does not dispute that Devin’s and Irvine’s pleas

were locked. And, indeed, the government’s cover letter to

the final draft plea agreement states that the pleas were

“lock[ed].” As we explain below, other Courts of Appeals
Absent clear error, we need not consider whether the 11

District Court’s Rule 11 colloquy affected Devin’s substantial

rights or jeopardized the fairness, integrity, or public reputation of

judicial proceedings. See Dixon, 308 F.3d at 233-34. 

22

require disclosure of such arrangements to the district court,

which must exercise special care at the Rule 11 colloquy to

ensure that each participant pleads voluntarily. Until today,

however, that was not the law in this Circuit. Heretofore, we

have discussed package deal plea bargains only in dicta, and

there stated simply that such bargains are “permissible

provided that the defendant’s decision to forego trial is

otherwise voluntary.” United States v. Seligsohn, 981 F.2d

1418, 1426 (3d Cir. 1992) (noting that voluntariness of

appellant’s plea was “not properly before” the Court). 

Consequently, even if the District Court had been informed

that Devin’s plea was packaged, we cannot say that failure to

conduct Devin’s colloquy with special care would have been

“clear and obvious” error. Dixon, 308 F.3d at 233-34. Cf.

United States v. Abbott, 241 F.3d 29, 34 (2d Cir. 2001)

(“[T]he disclosure of the existence of a package deal is crucial

at the Rule 11 hearing so that the district court may probe as

deeply as needed into the possibility that one defendant is

pleading guilty against his will . . . .”) (emphasis added). It

follows a fortiori that failure to provide special care was not

clear and obvious error where, as here, the District Court was

not informed of the package deal. 

11

Nor can we say that the District Court plainly erred in

failing to ask Devin about prior discussions with the

government under Rule 11(d). Since Devin’s colloquy in

2000, Rule 11(d) has been moved and changed. Now, Rule
23

11(b)(2), rather than Rule 11(d), addresses voluntariness, and

the reference to prior discussions has been deleted. The

Supreme Court has instructed that, “in the absence of a clear

legislative mandate, the Advisory Committee Notes provide

insight into the meaning of a rule, especially when, as here,

the rule was enacted precisely as the Advisory Committee

proposed.” Vonn, 535 U.S. at 63 n.6. We think the omission

of references in the new Rule 11 to prior discussions

establishes a “clear legislative mandate” that such references

are unnecessary to conduct an adequate Rule 11 colloquy. If

there were any doubt on that issue, the Advisory Committee

explains that the old requirement, “often a source of

confusion to defendants who were clearly pleading guilty as

part of a plea agreement with the government, was considered

unnecessary.” Advisory Committee’s Notes on 2002

Amendments to Fed. R. Crim. P. 11. Whether or not the

District Court committed a “clear and obvious” error that

affected Devin’s substantial rights, it is thus clear that the

District Court’s omission did not “seriously affect the

fairness, integrity, or public reputation” of the District Court’s

proceedings. See Dixon, 308 F.3d at 233-34. 

While we hold that the District Court committed no

plain error, we believe that determining voluntariness in

package deal situations is an especially delicate matter. We

therefore write to provide guidance to the District Court

should a new plea colloquy be necessary on remand, and to

assist future district courts considering such pleas.

As their name suggests, package deal plea bargains

exist where the government accepts a defendant’s guilty plea

on the condition that his co-defendant(s) also plead guilty. 
United States v. Daniels, 821 F.2d 76, 78-79 (1st Cir. 12

1987) (Breyer, J.) (holding that government failure to tell court at

Rule 11 hearing that plea was packaged violated Rule 11); United

States v. Clements, 992 F.2d 417, 419 (2d Cir. 1993) (per curiam)

(stating that disclosure of plea packaging is the “preferred practice”

and the “more prudent course,” and that packaging “should be

stated to the court.”); United States v. Bennett, 332 F.3d 1094,

1101 (7th Cir. 2003); United States v. Caro, 997 F.2d 657, 659-60

(9th Cir. 1993); United States v. Holland, 117 F.3d 589, 594 (D.C.

Cir. 1997) (district court “should be informed” about plea

packaging). See United States v. Morrow, 914 F.2d 608, 613 (4th

Cir. 1990) (stating that failure to inform court of packaged pleas

“raise[d] eyebrows” of Court of Appeals). Cf. United States v.

Usher, 703 F.2d 956, 958-59 (6th Cir. 1983) (holding that District

24

The incentive to join such arrangements is straightforward: 

the government offers defendants a “volume discount - a

better deal than each could have gotten separately.” United

States v. Caro, 997 F.2d 657, 658 (9th Cir. 1993). Of course,

the benefits of such deals are seldom distributed evenly, and

every defendant may not be equally interested in bargain

shopping. Familial or fraternal coercion of putative

confederates in package plea deals is a serious concern, see

United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir 2004),

as to some extent is self-imposed pressure. See id.; United

States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990). Though

reserving judgment on the question, the Supreme Court has

warned that “offers of leniency or adverse treatment for some

person other than the accused . . . might pose a greater danger

of inducing a false guilty plea by skewing the assessment of

the risks a defendant must consider.” Bordenkircher v.

Hayes, 434 U.S. 357, 365 n.8 (1977). Mindful of these

considerations, other Courts of Appeals widely require that

(1) package plea deals be disclosed to the court and (2) 12
Court did not err in not “raising sua sponte the possibility of

conditions [on defendant’s plea] even though appellant and his codefendant were husband and wife and even though both pleaded

guilty at the same time”).

United States v. Tursi, 576 F.2d 396, 398 (1st Cir. 1978) 13

(holding that “special care must be taken to ascertain the

voluntariness of the [packaged] guilty plea”); Harman v. Mohn,

683 F.2d 834, 837-38 (4th Cir. 1982); Usher, 703 F.2d at 958;

Politte v. United States, 852 F.2d 924 (7th Cir. 1988); United

States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984). See United

States v. Nuckols, 606 F.2d 566, 570 (5th Cir. 1979) (holding that

special care must be taken to determine voluntariness where plea

agreement is “made in consideration of lenient treatment as against

third persons”); United States v. Wright, 43 F.3d 491 (10th Cir.

1994) (same). See also Martin v. Kemp, 760 F.2d 1244, 1247

(11th Cir. 1985) (holding that evidence as to voluntariness of guilty

plea, allegedly entered in exchange for leniency toward defendant’s

pregnant wife, was not sufficiently developed on collateral review)

(citing Nuckols, 606 F.2d at 569). But see United States v.

Gamble, 327 F.3d 662 (8th Cir. 2003) (requiring, implicitly, no

special care where pleas are packaged); LoConte v. Dugger, 847

F.2d 745, 753 (11th Cir. 1988) (same; collateral review); United

States v. Farley, 72 F.3d 158, 164 (D.C. Cir. 1995) (requiring

“more searching inquiry” at Rule 11 colloquy only if defendant

expresses reluctance when asked about threats or coercion).

25

colloquies with package plea participants be conducted with

special care. We agree, and adopt these requirements for 13

district courts in this Circuit considering packaged pleas.

There is no question that package deal plea bargains

are constitutional. See Pollard, 959 F.2d at 1021-22 (citations

omitted). That conclusion is nearly axiomatic given the

nature of our criminal justice system, of which plea bargains

are an “essential part.” Santobello, 404 U.S. at 261; see also
26

Blackledge v. Allison, 431 U.S. 63, 71 (1977). “While

confronting a defendant with the risk of more severe

punishment clearly may have a discouraging effect on the

defendant’s assertion of his trial rights,” the Supreme Court

has explained, “the imposition of these difficult choices [is]

an inevitable – and permissible – attribute of any legitimate

system which tolerates and encourages the negotiation of

pleas.” Bordenkircher, 434 U.S. at 364. In turn, the Second

Circuit has noted that, “[s]ince a defendant’s plea is not

rendered involuntary because he enters it to save himself

many years in prison, it is difficult to see why the law should

not permit a defendant to negotiate a plea that confers a

similar benefit on others.” Marquez, 909 F.2d at 742. We

agree and hold that package deal plea bargains are

constitutionally permissible. See Seligsohn, 981 F.2d at 1426.

Though allowed, package deal pleas pose special risks,

particularly when a trial court is unaware that defendants’

pleas are tied together. The First Circuit, which has an

extensive jurisprudence in this area, most often has reversed

package deal pleas when the district court was not informed

of the packaging. Mescual-Cruz, 387 F.3d at 8. According to

the First Circuit’s sound reasoning, when a defendant’s plea

rests on a promise by the government that another defendant

will benefit, that promise is a material term of the agreement. 

Abbott, 241 F.3d at 33. See also United States v. Hernandez,

79 F.3d 1193, 1194 (D.C. Cir. 1996). And, of course, “[f]ull

disclosure to the district court of the material terms of plea

agreements is necessary to insure that the Rule 11 colloquy is

thorough and searching as to defendant’s knowing, intelligent,

and voluntary waiver of the right, among others, to a jury

trial.” Abbott, 241 F.3d at 33. We therefore hold that the
Two Courts of Appeals have suggested that the duty to 14

disclose plea packaging “falls with particular weight on

prosecutors[,] who have a responsibility not merely to win, but to

win fairly.” Caro, 997 F.2d at 659 n.2; Clements, 992 F.2d at 419

(recommending prosecutorial disclosure as the “preferred

practice”). Other Courts of Appeals expressly require prosecutorial

disclosure yet are silent regarding defense counsel’s commensurate

duty, if any. Mescual-Cruz, 387 F.3d at 9 (requiring prosecutorial

disclosure); Bennett, 332 F.3d at 1101 (same). We of course

recognize that defendants, not prosecutors, face the danger of

skewed assessment of risks when package deal plea bargains are at

stake. See Bordenkircher, 434 U.S. at 365 n.8. Descriptively,

prosecutors thus may be more likely actually to disclose package

deal pleas than their counterparts. But that does not absolve

defense counsel from their express duty under Rule 11 to notify the

court of the material terms of the plea agreement. Prescriptively,

as officers of the court, defense counsel have no less of a duty to

follow the rules of disclosure than prosecutors. That duty includes

disclosing that a plea bargain is a package deal. 

27

parties must notify the district court that a package deal exists

and state to the court on the record the specific terms of that

deal. See Fed. R. Crim. P. 11(c)(2) (“The parties must

disclose the plea agreement in open court . . . .”); Hernandez,

79 F.3d at 1194 (citing United States v. Roberts, 570 F.2d

999, 1007 n.25 (D.C. Cir. 1977)).14

Once a court has been told of a package deal, special

care should be exercised during the Rule 11 plea colloquy to

ensure that the defendant is pleading voluntarily. Other

Courts of Appeals have studiously declined to dictate detailed

“special care” marching orders. See, e.g., Mescual-Cruz, 387

F.3d at 8 (“We have not . . . mandated that extra procedures

be followed . . . .”). We share their caution. More than three

decades ago, the Supreme Court warned that the “[t]he nature
28

of the inquiry required by Rule 11 must necessarily vary from

case to case,” McCarthy v. United States, 394 U.S. 459, 467

n.20 (1969), and it recently reiterated that “Rule 11 should not

be given such a crabbed interpretation that ceremony was

exalted over substance.” Vonn, 535 U.S. at 70. With Rule 11,

Congress decided to “strip district judges of freedom to

decide what they must explain to a defendant who wishes to

plead guilty, but not to tell them precisely how to perform this

important task in the great variety of cases that would come

before them.” United States v. Saft, 558 F.2d 1073, 1079 (2d

Cir. 1977) (Friendly, J.) (emphasis in original). As Rule 11

does not suggest that its requirements can be met solely by

reading its elements verbatim, id., we think it would be

presumptuous for us to add to the Rule our own miniature

litany.

What then in general terms is “special care”? At the

threshold, a district court notified of a package deal plea

bargain should question counsel closely to ensure that the

precise terms of the package plea deal are on the record. See

Fed. R. Crim. P. 11(b)(2), 11(c)(2). Once it is clear exactly

how a defendant’s plea benefits his confederate(s), it may be

helpful to ask who first proposed the package deal, see United

States v. Politte, 852 F.2d 924, 930-31 (7th Cir. 1988), how

extensively defense counsel was involved in developing the

deal, see United States v. Usher, 703 F.2d 956, 958 (6th Cir.

1983), and what benefit the defendant expects to gain from

the deal. See United States v. Buckley, 847 F.2d 991, 995 (1st

Cir. 1988). When asking whether a plea is a product of force,

threats, or inducements and the like, a district court should

take care not to ask only whether the prosecutor forced,

threatened, or coerced the defendant, but whether anyone did

so. United States v. Martinez-Molina, 64 F.3d 719, 734 (1st

Cir. 1995). Having so inquired, the court should be

particularly attuned to even mild expressions of reluctance by

a defendant. See United States v. Farley, 72 F.3d 158, 164
29

(D.C. Cir. 1995); United States v. Daniels, 821 F.2d 76, 79

(1st Cir. 1987). Such expressions always should trigger a

more searching inquiry. See Farley, 72 F.3d at 164. On the

other hand, as none of the defendants may be particularly

eager to plead guilty, one defendant’s expressions of

reluctance should be compared to those of other defendants

involved in the package deal. See United States v. Morrow,

914 F.2d 608, 613 (4th Cir. 1990) (refusing to grant writ of

habeas corpus where son claimed to have pleaded

involuntarily, but testimony indicated that father claimed at

change-of-plea hearing that he was pleading to help son). 

The foregoing is not a checklist that, if followed,

automatically will prevent a Rule 11 colloquy from going

awry. Rather, it is a summary of lessons drawn from

colloquies evaluated by other Courts of Appeals. The

overarching rule is that a district court considering a package

plea deal should be particularly attentive to a defendant’s

responses to voluntariness questions throughout a plea

colloquy. That being said, district courts of course should

remember that package deal plea bargains are not inherently

coercive, and that the judge’s goal is not to doom the deal but

simply to ensure that the defendant’s plea is voluntary.

We recognize that Rule 11 colloquies have grown in

length since their formal adoption, Vonn, 535 U.S. at 62, and

we only cautiously augment their manifold considerations. 

United States v. Clements, 992 F.2d 417, 420 (2d Cir. 1993). 

Nevertheless, when the government risks inducing false guilty

pleas by packaging pleas together, Bordenkircher, 434 U.S. at

365 n.8, justice and prudence require that the district court be

notified and pay special care.

III.

For the foregoing reasons, we will vacate the sentence
30

of the District Court and remand Devin Hodge’s case for resentencing or withdrawal of his guilty plea.