*Of the United States District Court for the District of

Massachusetts, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 02-1824

UNITED STATES,

Appellee,

v.

THOMAS FRAZIER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

 Selya and Lipez, Circuit Judges,

and Ponsor, U.S. District Judge.

*

Bruce Green for appellant.

Kevin P. McGrath, Assistant United States Attorney, with whom

Heidi E. Breiger, Assistant United States Attorney, and Michael J.

Sullivan, United States Attorney, were on brief, for appellee.

August 18, 2003
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LIPEZ, Circuit Judge. In securing a plea agreement, the

government will frequently promise to forego advocacy of an upward

departure at a defendant's sentencing. The government made such a

promise in this case. To resolve this appeal, we must determine

whether the government, consistent with that promise, could then

inform a panel of this court during a prior appeal that the

district court "should be free" on resentencing to upwardly depart

sua sponte if the district court determined that the defendant's

criminal history category under the applicable sentencing

guideline, see U.S.S.G. § 4A1.3, under-represented the seriousness

of his criminal history. The line between "information" and

"advocacy" can be a fine one. Although the government's clumsilycomposed brief in the prior appeal was regrettable, we conclude

that the government did not cross the line. We therefore affirm

the sentence imposed by the district court.

I.

In September 1997, defendant-appellant Thomas Frazier was

indicted on two counts of distributing cocaine base, see 21 U.S.C.

§ 841(a)(1) (2002), and one count of conspiracy to distribute

cocaine base, see id. § 846. Pursuant to a written plea agreement

executed in May 1999, Frazier agreed to plead guilty to one

substantive count specifying a transaction that took place on July

17, 1997. In exchange for Frazier's guilty plea, the government

agreed to dismiss the conspiracy charge and the remaining
1 The bracketed material was inserted by hand into the

typewritten agreement and initialed by all parties.

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substantive count. As for sentencing, the plea agreement provided

as follows:

The U.S. Attorney and Defendant agree that

there is no basis for a departure from the

sentencing range established by the United

States Sentencing Guidelines [except that

Defendant reserves the right to argue for a

downward departure based upon his family

circumstances].1 Accordingly, neither the U.S.

Attorney nor Defendant will seek a departure

on any ground from the Sentencing Guidelines.

The U.S. Attorney expressly reserves the right

to seek an upward departure pursuant to

U.S.S.G. § 4A1.3 should any of Defendant's

prior state convictions be vacated subsequent

to the execution of this Agreement.

The agreement also reserved the U.S. Attorney's right to "argue the

correctness of the Defendant's sentence and the manner in which the

District Court determines it," should Frazier pursue any appeal.

A subsequent Pre-Sentence Report ("PSR") prepared by the

U.S. Probation Office revealed that Frazier was a leader in a

Worcester, Massachusetts, drug gang called the Vice Lords, and that

he had a prior August 1995 drug trafficking conviction and an

August 1997 assault and battery conviction. As a result, at

Frazier's November 1997 sentencing hearing, and over his objection,

the district court determined that Frazier was a "career offender,"

see U.S.S.G. § 4B1.1, and, accordingly, assigned to him a criminal

history category ("CHC") of VI. Since the court determined that

Frazier was a career offender with the highest possible criminal
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history category, it did not need to determine whether Frazier's

CHC under-represented the seriousness of his criminal history.

Also as a result of the career offender designation, the district

court did not need to consider Frazier's objection to the PSR's

role-in-the-offense calculation, see U.S.S.G. § 3B1.1, since it

would not have affected the sentence in any event. 

Frazier appealed his sentence, arguing that the district

court erred in its career offender determination, and asking us to

reverse that determination and remand the case "for resentencing by

the District Court after consideration of the Defendant's Role in

the Offense objection." In response, the government filed a motion

for remand, conceding that the district court had erred in its

career offender calculation. Frazier's August 1997 assault and

battery conviction — upon which the career offender calculation was

partially based — occurred after the July 1997 offense for which

Frazier was being sentenced, and therefore should not have been

considered. The government's brief in support of its motion for

remand contained the following text at the end:

Given that the erroneous determination of the

defendant as a career offender impacted the

defendant's GSR [guideline sentencing range],

the case should be remanded for resentencing.

As the defendant points out in his brief, at

resentencing, the district court would need to

resolve the defendant's objection to the PSR's

role adjustment. On resentencing, moreover,

the district court should be free to consider

the applicability of U.S.S.G. § 4A1.3, which

provides for upward departures when a

sentencing court determines that the
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defendant's CHC under-represents the

seriousness of the defendant's criminal

history.

The boldface and italicization in the above-quoted excerpt is as it

appeared in the original. Frazier did not object at that time to

the form or substance of the government's remand motion. Upon

consideration of the parties' submissions, a prior panel of this

court agreed that the district court had erred and issued an order

on November 9, 2001, which stated:

We therefore allow the government's motion,

vacate the judgment [of the district court]

and remand the case for resentencing. Upon

remand, the district court should resolve the

defendant's objection to the two-level

adjustment for his role in the offense. We

take no view whether the circumstances of this

case might warrant an upward departure under

[U.S.S.G.] § 4A1.3.

Frazier did not seek modification of this order.

On May 3, 2002, the district court convened a

resentencing hearing in accordance with our mandate. In

recalculating Frazier's CHC, the court concluded that Frazier had

eight criminal history points, placing him in CHC IV. The court

added:

It is also appropriate for me to note, for the

record, that the Mandate from the First

Circuit Court of Appeals did call my

attention, although it took no stand, on the

possibility that this case might warrant an

upward adjustment under Guideline 4A1.3.

The court then stated, prior to soliciting any comments from

counsel, that it was "inclined" to depart upward and assign a CHC
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of V because, in the court's view, there was reliable information

in the PSR indicating that a CHC of IV inadequately reflected the

seriousness of Frazier's criminal history. 

The court then solicited comments from counsel. The

Assistant United States Attorney's ("AUSA") immediate response was,

"Your honor, I did not make that motion," but added that "I

certainly would be happy to provide the Court with additional

briefing in support of such a finding." Counsel for Frazier then

addressed the court, stating that it would be a breach of the plea

agreement for the government to advocate for an upward departure:

I would be concerned if my sister actively

provides information or a briefing in support

of the Court's inclination mainly because the

plea agreement that we have with the

government says that it will not seek — and I

assume that that means will not support — an

upward departure in this case. So I would

suggest that if that were to occur, that that

would constitute a breach of the plea

agreement.

Defense counsel also stated that he had not anticipated having to

argue against an upward departure, and therefore requested a

continuance to brief the issue. The court granted the request and

set a briefing schedule. The AUSA then indicated that she would go

back and check the plea agreement: "I will review it and certainly

will take no action to breach an agreement we've already reached."

Three weeks after the hearing, Frazier filed in the

district court a "Motion for Specific Performance of Plea

Agreement's Terms and Memorandum in Opposition to Upward Departure
-7-

Pursuant to Section 4A1.3." In this filing, Frazier contended for

the first time that the government had breached its plea agreement

while the original sentence was under appeal: "While the

government has not explicitly violated the plea agreement, it did

perform an end run around it by arguing superfluously in its motion

for remand that the district court could consider a 4A1.3 upward

departure upon resentencing." In its response to Frazier's motion,

the government stated that it would not advocate for a departure at

resentencing. It also stated that its motion for remand "set out

an accurate legal principle indicating for the Court of Appeals the

limits of its mandate," and that this did not constitute a breach

of the plea agreement.

At the continued resentencing hearing on May 28, 2002,

the district court rejected Frazier's claim that the government had

breached the plea agreement: "Simply the mention in [the

government's] papers filed in the First Circuit Court of Appeals

that 4A1.3 was applicable doesn't indicate to me that there has

been any breach or any request by the government that I upwardly

[depart]." The court therefore denied Frazier's motion for

specific performance. 

The district court then acted on its inclination to

upwardly depart. For reasons detailed below, see Part IV.B, the

district court determined that Frazier's criminal history category

was under-represented by his otherwise applicable CHC of IV. The
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court concluded that a CHC of V was appropriate, placing Frazier in

a sentencing range of 120 to 150 months, rather than category IV's

range of 100 to 125 months. The government made no recommendation

as to sentence within that range, and the district court sentenced

Frazier to a 138-month term of incarceration. This appeal ensued,

with Frazier requesting that this case "be remanded for

resentencing either by a different judge or for a sentence within

the guideline range."

II.

Frazier presses two arguments on appeal. First, he

claims that the district court erred in rejecting his argument that

the government breached the terms of the plea agreement. According

to Frazier, the bold and italicized language contained in the

government's motion for remand, if not an outright breach, was an

impermissible "end run" around the substance of the plea agreement.

In evaluating whether the government has breached a plea agreement,

we employ differing standards of review depending upon the

circumstances. In this case, the facts giving rise to the alleged

breach are not in dispute. "Thus, we must determine only the legal

question of whether the government's undisputed conduct breached

the plea agreement, which we review de novo." United States v.

Clark, 55 F.3d 9, 11 (1st Cir. 1995); see United States v. Doe, 233

F.3d 642, 644 (1st Cir. 2000) ("[W]hether [the government's]
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conduct constituted a breach of the plea agreement is a question of

law subject to plenary review.").

Next, assuming there was no breach, Frazier argues that

the district court erred in its decision to upwardly depart

pursuant to U.S.S.G. § 4A1.3. As explained in Part III.B, infra,

the applicable standard of review has been changed in part through

a recent legislative enactment. In the past, we would have

deferred to the district court's determination regarding the

adequacy of a defendant's CHC unless we could find no support for

that conclusion in the record. United States v. Diaz-Martinez, 71

F.3d 946, 952 (1st Cir. 1995); see United States v. Campbell, 61

F.3d 976, 985 (1st Cir. 1995) ("We review the court's factual

findings for clear error, and we give considerable deference to its

'judgment call' as to whether those facts warrant the departure.").

However, with the passage of the Prosecutorial Remedies and Tools

Against the Exploitation of Children Today Act of 2003 ("PROTECT

Act"), Pub. L. No. 108-21, 117 Stat. 650 (2003), we must now

undertake de novo review of that determination.

III.

A. The Alleged Breach of the Plea Agreement

Over thirty years ago, the Supreme Court attested to the

important role that plea agreements play in our criminal justice

system:

Disposition of charges after plea discussions

is not only an essential part of the process
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but a highly desirable part for many reasons.

It leads to prompt and largely final

disposition of most criminal cases; it avoids

much of the corrosive impact of enforced

idleness during pretrial confinement for those

who are denied release pending trial; it

protects the public from those accused persons

who are prone to continue criminal conduct

even while on pretrial release; and, by

shortening the time between charge and

disposition, it enhances whatever may be the

rehabilitative prospects of the guilty when

they are ultimately imprisoned.

Santobello v. New York, 404 U.S. 257, 261 (1971). While these (and

other) important considerations provide incentives for all sides to

engage in plea discussions, a defendant must ultimately waive

fundamental constitutional rights as a result of entering into any

plea agreement. Hence, "we hold prosecutors engaging in plea

bargaining to 'the most meticulous standards of both promise and

performance,'" United States v. Riggs, 287 F.3d 221, 224 (1st Cir.

2002) (quoting United States v. Velez Carrero, 77 F.3d 11, 11 (1st

Cir. 1996)), and we are wary of government claims that the

prosecution "technically" complied with the terms of the agreement

when the net effect of the government's behavior undermines the

"benefit of the bargain" upon which a defendant has relied. Our

case law prohibits "not only explicit repudiation of the

government's assurances, but must in the interests of fairness be

read to forbid end-runs around them." United States v. Saxena, 229
2 We have previously indicated, however, that "minor

deviations from the plea agreement will not mandate resentencing."

Clark, 55 F.3d at 14 n.3. Only a deviation that "affect[s] the

consideration due the defendant under the plea agreement" can be

considered a breach that entitles a defendant to a remedy. Id.;

see Panzardi-Alvarez v. United States, 879 F.2d 975, 986 (1st Cir.

1989) ("The government may not breach any term of a plea agreement

which induced the defendant to plea guilty.") (emphasis added).

-11-

F.3d 1, 6 (1st Cir. 2000); United States v. Canada, 960 F.2d 263,

269 (1st Cir. 1992).2

In determining whether the government has breached a plea

agreement, "[w]e are guided . . . by general principles of contract

law." Clark, 55 F.3d at 12; see United States v. Gonzales-Sanchez,

825 F.2d 572, 578 (1st Cir. 1987) ("Contractual principles apply

insofar as they are relevant in determining what the government

'owes' the defendant."). As explained above, however, "[a] plea

agreement is not an appropriate context for the Government to

resort to a rigidly literal approach in the construction of

language." United States v. Garcia, 698 F.2d 31, 37 (1st Cir.

1983) (quoting United States v. Bowler, 585 F.2d 851, 854 (7th Cir.

1978)). "Likewise, as in all contracts, plea agreements are

accompanied by an implied obligation of good faith and fair

dealing." United States v. Ahn, 231 F.3d 26, 35–36 (D.C. Cir.

2000) (internal quotation marks omitted). Moreover, pursuant to

contract law, even an unintended breach is, nevertheless, still a

breach. See United States v. Mercedes-Amparo, 980 F.2d 17, 19 n.3

(1st Cir. 1992) (stating that the fact that "breach was inadvertent
-12-

. . . does not lessen its impact") (quoting Santobello, 404 U.S. at

262).

Frazier claims that the government breached the terms of

his plea agreement when, during the course of his prior appeal, the

government inserted the following boldfaced and italicized language

at the end of its remand motion:

On resentencing, moreover, the district court

should be free to consider the applicability

of U.S.S.G. § 4A1.3, which provides for upward

departures when a sentencing court determines

that the defendant's CHC under-represents the

seriousness of the defendant's criminal

history.

(original emphasis). As Frazier notes, the government chose to

place only the foregoing in boldface and italics: "No other

passage in the document received this treatment, just this one."

Frazier argues that this excerpt, presented in that format, was an

"end-run" around the following provision of his plea agreement:

The U.S. Attorney and Defendant agree that

there is no basis for a departure from the

sentencing range established by the United

States Sentencing Guidelines. . . .

Accordingly, neither the U.S. Attorney nor

Defendant will seek a departure on any ground

from the Sentencing Guidelines.

According to Frazier, the language in the government's brief was

"not just a mere statement of a truism, it is advocacy for a

departure which the government explicitly agreed not to do." The

government responds by calling its choice of words and formatting
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"regrettable" in retrospect, but insists that there was no breach

of the plea agreement.

Frazier relies on two cases in support of his claim —

United States v. Clark, and United States v. Canada. In Clark, the

defendant pleaded guilty in return for the government's promise

that it would not oppose a three-level reduction for acceptance of

responsibility. See Clark, 55 F.3d at 12. Nonetheless, the

government effectively opposed such a reduction when, in its

sentencing memorandum to the district court, it explicitly argued

that the defendant did not appear to qualify for it. Id. In

United States v. Canada, the government, as part of the plea

agreement, agreed to recommend a 36-month sentence and to notify

the court of the full nature and extent of the defendant's

cooperation. Canada, 960 F.3d at 268. The government simply

failed to do either. See id. at 269–70. In Frazier's case,

however, the government did not fail to argue something that it

explicitly promised to, nor did the government explicitly argue

anything prohibited by the plea agreement.

The language at issue in the plea agreement was in a

section entitled "Sentence Recommendation," and, by its own terms,

only refers to sentencing. Neither at Frazier's initial

sentencing, nor at his resentencing subsequent to his previous

appeal, did the government ever recommend, move, argue, or

otherwise support an upward departure. Indeed, the government
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repeatedly stated in the district court that it was bound not to

seek an upward departure. While the government did indicate at one

point during Frazier's initial hearing after remand that it "would

be happy" to provide briefing in support of an upward departure,

the government ultimately retreated from that position once it

actually took the time to re-examine the original plea agreement.

Hence we conclude that the government did not technically violate

the terms of the plea agreement.

However, as noted, the government cannot rely on mere

technical compliance, and adherence to the terms of a plea

agreement "requires more than lip service on a prosecutor's part."

Saxena, 229 F.3d at 6. Instead, the prosecution's "overall conduct

must be reasonably consistent" with the promises contained in a

plea agreement. Canada, 960 F.2d at 269. At first blush, the

government's behavior in this case seems dubious. Why would the

government aver in the plea agreement that "there is no basis for

a departure from the sentencing range established by the United

States Sentencing Guidelines," but then include the language at

issue in its appellate brief, unless the government concluded that

there was a basis for — indeed, that it sought — an upward

departure from the district court? Moreover, the government

complicated matters by putting that very language, and that

language alone, in boldfaced and italicized typeface. The

government concedes the clumsiness of its conduct: 
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The government acknowledges that, had it been

mindful of the provision barring it from

seeking an upward departure, it would have

taken pains to ensure that the this [sic]

Court's remand order did not affirmatively

call the district court's attention to its

option of upwardly departing. The government

contends, however, that it was not barred by

the plea agreement from seeking an accurate

remand order in this case. Thus, while the

government regrets that [sic] did not handle

this situation with more care, it respectfully

submits that its action did not rise to either

an intentional or unintentional breach of the

plea agreement warranting yet another remand.

In evaluating the government's explanation, we must be

cognizant of the unusual procedural history of this case. After

laying out a challenge to his career offender designation in his

initial appellate brief, Frazier asked us to remand the case "for

resentencing by the District Court after consideration of the

Defendant's Role in the Offense objection." Seeing this language,

the government was concerned that merely conceding the erroneous

career offender designation without saying more might have led us

to vacate the sentence and remand with unduly limiting directions,

i.e., we might have issued a judgment saying that "the case is

remanded for resentencing and consideration of the defendant's

objection to the two-level adjustment for his role in the offense,"

and no more. Such a remand could have misled the district court

into believing that it could not sua sponte consider an upward

departure at resentencing. If this had happened, Frazier, in

effect, would have gotten more than he had bargained for in his
3 Frazier acknowledged in the plea agreement that the

sentencing court was not bound by the agreement's terms, and that

the sentencing judge was free to disregard the recommendations of

the parties as well as to upwardly depart from the Sentencing

Guidelines.

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plea agreement.3 Hence, according to the government, it was simply

seeking "an accurate remand order" by including the contested

language in its brief.

We conclude that the government's concern about the

phrasing of Frazier's remand request was warranted, and that its

goal of seeking "an accurate remand order" was therefore within its

rights under the plea agreement, as well as its obligation under

the law. The government is under a constant obligation to ensure

the integrity of the proceedings at all levels, notwithstanding the

terms of any plea agreement. See Saxena, 229 F.3d at 6 ("The

government's obligation to furnish relevant information . . . does

not vanish merely because the government has a corollary obligation

to honor commitments under a plea agreement."). Seeing the

potential for an unduly and unwittingly restrictive remand order

from the court of appeals because of the unusual posture of this

case, the government acted reasonably in alerting us to this

possibility. Although an alert with different phrasing and format

might have produced a remand order from us that preserved the

flexibility of the district court without a specific reference to

an upward departure, we cannot equate the clumsiness of the

government's alert with a breach of the plea agreement. We were
-17-

not the sentencing court. The government never advocated for an

upward departure before the district court. It furnished "the

consideration due the defendant under the plea agreement." Clark,

55 F.3d at 14 n.3. The government did nothing more than urge us to

fashion a remand order that did not impose an unwarranted

restriction on the sentencing court. Therefore, we conclude that

the contested language contained in the government's appellate

brief did not constitute a breach of the plea agreement.

B. The Upward Departure

Frazier asserts that the sentencing court erred in

upwardly departing under U.S.S.G. § 4A1.3, which provides as

follows:

If reliable information indicates that the

criminal history category does not adequately

reflect the seriousness of the defendant's

past criminal conduct or the likelihood that

the defendant will commit other crimes, the

court may consider imposing a sentence

departing from the otherwise applicable

guideline range.

Id. Frazier argues that his criminal history does not support such

a departure. He does not challenge, however, the factual findings

upon which the district court premised the departure: 

C that when Frazier was arrested in 1995 on drug

charges, he was found in possession of three firearms

and fifteen rounds of ammunition for which he was not

charged;

C that he had committed two "very serious" separate

assaults and batteries on a female friend for which

he received only one sentence; 
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C while in custody for one of his assaults, he

threatened to kill the victim if the charges were not

dropped;

C when he was served with a restraining order, he told

the police officer that he was going to "fuck[] up"

the complainant and that the serving officer had

"better be careful" when he was out on the street.

In assessing the significance of these findings, we must

first take into account Congress's recent enactment of the

Prosecutorial Remedies and Tools Against the Exploitation of

Children Today Act of 2003 ("PROTECT Act"), Pub. L. No. 108-21, 117

Stat. 650 (2003). Section 401 of the PROTECT Act amends 18 U.S.C.

§ 3742 which governs our review of sentencing appeals. In United

States v. Thurston, No. 02-1966 (1st Cir. Aug. 4, 2003), we held

that the PROTECT Act applies to appeals pending as of its effective

date, April 30, 2003. See id. slip op. at 45–47. While Thurston

concerned an appeal by the government of an unacceptably low

sentence, we see nothing in the language of the PROTECT Act which

limits its applicability to downward departures. Section 401(d)(1)

of the PROTECT Act refers to "review of departures," without

distinguishing between the upward or downward varieties. We also

note that § 401(d)(3) of the Act specifically contemplates

situations in which "the sentence is too high" and "the sentence is

too low." See id. (amending 18 U.S.C. § 3742(f)(2)). We therefore

conclude that § 401(d) of the PROTECT Act applies to our review of

upward as well as downward departures in cases pending on direct

review as of April 30, 2003.
4 Under the PROTECT Act we continue to give due deference to

the district court's determination on the degree of departure

warranted by the facts. See id. § 401(d)(2) (amending 18 U.S.C.

§ 3742(e)).

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In light of the new law, we must now review de novo the

question whether the underlying facts of this case warranted the

district court's consideration of an upward departure.4 See id. at

48. In enacting the PROTECT Act,

Congress requires the courts of appeals to

consider whether a sentence that departs from

the applicable guideline range is based on a

factor that:

(i) does not advance the

objectives set forth in

section 3553(a)(2); or

(ii) is not authorized under

section 3553(b); or

(iii) is not justified by the

facts of the case[.]

Thurston, slip op. at 44 (quoting 18 U.S.C. § 3742(e)(3)(B)). Upon

due consideration of these three criteria, we conclude that the

upward departure was permissible and warranted under U.S.S.G.

§ 4A1.3, largely for the reasons articulated by the district court

at sentencing and memorialized in the court's Statement of Reasons
5 At the sentencing hearing, the district court noted Frazier

was never charged in connection with weapons he possessed at the

time of his arrest in 1995 on drug charges:

That indicates to me a particular seriousness of this

man's conduct and the likelihood of recidivism. This is

a very serious matter where we have not only involved a

possession of a controlled substance with intent to

distribute[,] but firearms, lots of ammunition, and

fingerprints of the defendant on the firearm[s].

In its written findings, the court stated that the otherwise

applicable CHC significantly under-represented the seriousness of

Frazier's conduct and the likelihood that he would commit further

crimes, because, "among other things,"

1) he committed two separate assaults and batteries in

July 1997 for which he was sentenced together . . . 2) in

connection with his 1995 drug conviction, he was involved

with firearms . . . and 3) after his arrest in July,

1997[,] for two assaults, he threatened to kill the

victim, tried to persuade her to drop the charges and

even threatened the arresting officer.

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appended to its Amended Judgment.5 We also conclude that the

degree of departure was amply justified by the facts.

We write further to highlight only one other point.

Frazier cites only two cases in support of his claim that the

departure was unwarranted — United States v. Brewster, 127 F.3d 22

(1st Cir. 1997), and United States v. Ocasio, 914 F.2d 330 (1st

Cir. 1990). In both of these cases we affirmed upward departures

for defendants whose factual histories, Frazier insists, were more

egregious than his. That may or may not be the case. However, it

was only a two-month quirk of timing that kept Frazier's prior

criminal conduct from garnering him a career offender designation
-21-

and a CHC of VI. Therefore, the district court's sentence was more

than warranted.

AFFIRMED.