### 1997 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s

for the Thir d C ir c uit

12-2-1997



# U S A v . G i lchr i s t

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t

97-7224



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" U SA v . G i lchr i s t " (1997). 1997 D e cisio n s

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. e du/thir dc ir c uit_1997/270Filed December 2, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97

- 7224

UNITED STATES OF AMERICA

v.

WILLIAM GILCHRIST,

Appellant

On Appeal From the United States District Court

For the Middle District of Pennsylvania

( D.C. Crim. No. 96

- CR

- 0094)

Argued: July 25, 1997

Before: BECKER, MANSMANN, Circuit Judges, and

HOEVELER, Senior District Judge.*

(Filed December 2, 1997)

MOREY M. MYERS, ESQUIRE

DANIEL T. BRIER, ESQUIRE

(ARGUED)

Myers, Brief & Kelly, L.L.P.

108 N. Washington Avenue

Scranton, PA 18503

THOMAS J. HANLON, ESQUIRE

416 Jefferson Avenue

Scranton, PA 18510

Attorneys for Appellant

_____________________________________ ____________________________

*Honorable William M. Hoeveler, Senior United States District Judge for

the Southern District of Florida, sitting by designation.

DAVID M. MARASCH, ESQUIRE

United States Attorney

LORNA N. G RAHAM, ESQUIRE

(ARGUED)

Assistant United States Attorney

309 Federal Building

Scranton, PA 18501Attorneys for Appellee

OPINION OF THE COURT

HOEVELER, Senior District Judge,

William Gilchrist appeals from a final judgment of

conviction and sentence requesting that we vacate his

sentence and permit him to withdraw the guilty plea he

entered pursuant to a Rule 11(e)(1)(C) binding plea

agreement. We find that the imposition of the additional

condition of supervised release breached the plea

agreement, but we will remand for the district court to

determine whether to impose the sentence of the plea

agreement or to permit Gilchrist to withdraw his plea.

I.

Appellant was charged with engaging in com mercial

bribery in violation of the Travel Act and conspiring to

violate the Travel Act. Gilchrist, who operated a trucking

company, was charged with paying kickbacks to Donald

Finke, the transportation manager of Welch Foods, in order

to continue doi ng business with Welch.

Following discussions with the government, Gilchrist

agreed to plead guilty to a lesser charge, misprision of a

felony, 18 U.S.C. S 4. He negotiated and executed a binding

plea agreement with the Government pursuant to Rule

1 1(e)(1)(C) of the Federal Rules of Criminal Procedure.

According to this agreement Mr. Gilchrist was to be

sentenced to a nine month term of incarceration and a one

month period of home confinement. The plea agreement

also called for the imposition of a $10,000 fine and a $50

2

assessment. The nine month prison term was greater than

that provided for in the Guidelines for a violation of 18

U.S.C. S 4 (the applicable range for this offense is 0

- 6

months). Appe llant agreed to this upward departure from

the Guidelines in exchange for the government's dismissal

of its two count indictment against him. Under the

indictment the Appellant faced a possible penalty of 10

years incarceration and $500,000 in fines, a s well as a term

of supervised release and assessments, if he were convicted

of both offenses. Appellant's Appendix at 17a. The parties

further agreed that, if the district court rejected the

stipulated sentence or imposed a more severe penalty, Mr.

G ilchrist would be entitled to withdraw from the Plea

Agreement and plead anew.The district court accepted Mr. Gilchrist's guilty plea on

December 11, 1996. Sentencing was scheduled for April

pending completion of his pre

- sentence investigation repor t.

At the April 22, 1997 sentencing, the district court imposed

a sentence of 9 months incarceration, a $10,000fine, a $50

assessment and a one year period of supervised release,

including one month home confinement. Mr. Gilchrist did

not object to th e court's sentencing at the hearing.

On April 30, 1997 Mr. Gilchrist filed a motion in the

district court to correct sentence pursuant to Fed.R.Crim.P.

35(c). Supplemental Appendix, at 10

- 26. In its response the

Government agreed that the court's sen tence was not in

line with the plea agreement and suggested that the period

of supervised release be limited to one month. Appellant's

Appendix at 39a. However, the district court did not rule on

the motion within the seven day period following the

im position of Gilchrist's sentence, and thus no longer had

authority to correct an excessive sentence pursuant to

Fed.R.Crim.P. 35(c). On May 1, 1997, Gilchrist filed a

Notice of Appeal. He moved for expedited disposition on his

appeal on May 14, 1997. T his motion was granted and his

sentence imposed by the district court was stayed.

In his appeal Gilchrist argues that the sentence imposed

by the district court is more severe than that stipulated to

by the parties in the plea agreement. He further a sserts

that the district court's imposition of such a sentence

resulted in the breach of the plea agreement. Therefore,

3

Gilchrist contends that the case should be remanded to the

district court to afford him t he opportunity to withdraw his

guilty plea and plead anew pursuant to the remedial

provision in the plea agreement.

In response the government argues that because home

detention may only be imposed as a special condition of

supervised release, both parties reasonably expected the

district court to impose a period of supervised release

pursuant to the plea agreement which provided for one

month home detention. Moreover, the government asserts

that, assuming the court's imposition of supervised rel ease

resulted in a breach of the plea agreement, the case should

be remanded to the district court in order to afford it the

opportunity to correct any error and fashion an appropriate

remedy.

II.The plea agreement at issue was executed pursuant to

Fed.R.Crim.P. 11(e)(1)(C) which authorizes the government

and the defendant to "agree that a specific sentence is the

appropriate disposition of the case." Such a plea agreement

may be distinguished from one executed pursuant to

Fed.R.Crim.P. 11(e )(1)(B) where the government makes a

recommendation, or agrees not to oppose the defendant's

request, for a particular sentence, with the understanding

that such recommendation or request shall not be binding

on the court. At the time the plea is offer ed the court may

accept or reject an 11(e)(1)(C) plea agreement, or may defer

its decision until there has been an opportunity to consider

the presentence investigation report. Fed.R.Crim.P. 11(e)(2).

If the plea agreement is rejected, the court must a fford the

defendant an opportunity to withdraw his guilty plea.

Fed.R.Crim.P. 11(e)(4); U.S.S.G. S 6B1.3. If the plea

agreement is executed pursuant to Fed.R.Crim.P.

11(e)(1)(B), the court shall advise the defendant that if the

court does not accept t he recommendation the defendant

nevertheless has no right to withdraw his plea.

Fed.R.Crim.P. 11(e)(2). Under the specific provisions of the

plea agreement in the instant case, both parties were

afforded an opportunity to withdraw from the agreement.

The agreement states:

4

If at sentencing the court fails to accept the

stipulations of the parties, or imposes a sentence

greater than that agreed to by the parties then the

parties h ave the right to withdraw from this agreement

and withdraw any guilty plea entered pursuant to this

agreement.

Plea Agreement, P 5 (emphasis added).

III.

The first question with which this Court is faced is

whether or not the sent ence imposed by the district court

is "greater than that agreed to by the parties." There can be

little argument as to this point. The plea agreement clearly

stated that the parties agreed that the appellant would be

sentenced to a term of nine (9) mon ths incarceration, 1

month home detention, and a $10,000 fine. Plea agreement

P 5. At sentencing the district court imposed a sentence of

nine months incarceration, twelve months of supervised

release, one month of home detention and a $10,000 fine.1

Regardless of the intentions of the district court, the

sentence imposed was clearly greater than that set out in

the plea agreement. It is well settled that supervised release

constitutes punishment. United States v. Dozier, 1997 WL401318 (3d Cir. (N .J.)) 8. In Dozier this Court explained:

Supervised release is punishment; it is a deprivation of

some portion of one's liberty imposed as a punitive

measure for a bad act. A defendant on supervised

release is subject to v arious terms and conditions

which restrict his freedom and make him vulnerable to

_________________________________________________________________

1. Presumably, the district court believed that it was carrying out the

terms of the plea agree ment when it imposed its sentence. During the

sentencing hearing the court initially recited the sentence as it appeared

in the plea agreement. However, at the time the sentence was imposed

the court included the twelve month period of supervised releas e. That

the court believed it was following the plea agreement is further

evidenced by Appellant's Judgment and Commitment. While the court

included the necessary information to ensure the imposition of one year

of supervised release in the "supervised release" section of the document,

under "Additional Reasons for Departure from the Guideline Range" it

listed the sentence exactly as it appeared in the plea agreement.

5

further punishment should he viol ate them. Such

subsequent punishment may again include more

imprisonment and more supervised release.

Id. Thus, on its face, a sentence including a twelve month

period of supervised release is greater than that agreed to

by the parties

.

We next must determine whether or not the imposition of

a sentence including a twelve month period of supervised

release resulted in a breach of the plea agreement. Plea

agreements are contractual and therefore are to be

analyzed under contract la w standards. United States v.

Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989). "In

determining whether a plea agreement has been broken,

courts look to `what was reasonably understood by[the

defendant] when he entered his plea of guilty.' " United

St ates v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)

(quoting United States v. Crusco, 536 F.2d 21, 27 (3d Cir.

1976). The government asserts that a period of home

detention may only be imposed as a special condition of

either supervised release or prob ation. See U.S.S.G.

S 5F1.2. Therefore, the government maintains that when

Appellant entered into a plea agreement providing for one

month home detention, the imposition of a period of

supervised release was, or should have been, within his

reasonable expectations.

Assuming, without deciding, that the government'scontention that home detention may not be imposed

without a corresponding period of supervised release or

probation is correct, we still find that the twelve month

period of supervised release imposed by the district court

was not within the reasonable expectations of the

appellant. The government asserts that U.S.S.G. S 5D1.2

(a)(3) mandates the imposition of a one

- year period of

supervised release for a Class E felony such as misp rision.2

However, for a term of incarceration lasting less than one

year, such as that in the instant case, the imposition of a

term of supervised release is discretionary. U.S.S.G.

_________________________________________________________________

2 . Under U.S.S.G. S 5D1.2(a)(3) if a period of supervised release is

ordered, the length of such term is one year for a defendant convicted of

a Class E felony, such as misprision. (emphasis added).

6

S 5D1.1(b). Moreover, Rule 11 limits the discretion afforded

the district court under the Sentencing Guidelines. An

11(e)(1)(C) plea agreement, once accepted, binds the district

court notwithstanding departures from the applicable

guidelines. U.S.S.G. S 6B1.2(c) ( authorizing sentencing

court to accept Rule 11(e)(1)(C) plea agreement if agreed

sentence is within applicable guideline range or departs

from applicable guideline range for justifiable reasons).

Furthermore, the record in this case demonstrates that

the imposition of a twelve month period of supervised

release was neither express nor implied. The plea

agreement itself makes no mention of supervised release.

Similarly, the stipulated sentence presented to the district

court at the change of plea hearing was silent as to

supervised release. Finally, the government did not refer to

any period of supervised release in its presentation of the

plea agreement to the court at sentencing. Based on the

record before this court we find that the impositi on of a

twelve month period of supervised release was beyond the

reasonable expectations of appellant. Therefore, by

imposing a sentence greater than that to which the parties

agreed, the district court, although perhaps inadvertently,

caused the plea agreement to be breached.

IV.

The second question we must address is whether to

afford appellant the opportunity to withdraw his guilty plea

and replead, or to remand the case to the district court to

allow it the opportunity to fashion an approp riate remedy.

The government is correct in noting that the well

- settled

rule in this Circuit is that where a plea agreement has beenbreached, the district court, not the defendant, is to decide

in the first instance whether to grant specific performan ce

of the plea agreement or withdrawal of the guilty plea. See

e.g., United States v. Torres, 926 F.2d 321, 327 (3d Cir.

1991); United States v. Moscahlaidis, 868 F.2d 1357, 1363

(3d Cir. 1989); United States v. Martin, 788 F.2d 184, 188

(3d Cir. 1986 ); United States v. American Bag & Paper

Corp., 609 F.2d 1066, 1068 (3d Cir. 1979).

In its brief the government places particular emphasis on

7

our opinion in American Bag. In that case the defendant

corporati on pleaded nolo contendere to a single

- count

indictment charging a violation of the Sherman Act, 15

U.S.C. S 1 (1976), pursuant to an 11(e)(1)(B) plea

agreement. The agreement called for the government to

recommend a fine of $500,000 to be paid in annu al

installments of $50,000. Id. at 1067. The contract further

provided that "if [the court] should for any reason

determine not to follow the government's recommendation,

the corporation would be afforded the opportunity to

withdraw the plea of nolo c ontendere." Id. at 1067. While

both parties satisfied their obligations under the agreement,

the district court in addition to imposing the recommended

fine also imposed interest on the unpaid balance at 6% per

annum. Because the plea agreement was sil ent on the

matter of interest, the defendant appealed the sentence

arguing that the imposition of interest constituted a breach

of the plea agreement, and therefore the corporation was

entitled to withdraw its plea. This Court remanded the

matter to t he district court for clarification regarding

whether it had intended to reject the plea agreement or not.3

On remand the district court refused to vacate the sentence

and allow defendant to withdraw its guilty plea, and

instead, vacated the interest p ortion of the judgment. The

defendant's subsequent appeal to this Court claiming it was

entitled to a withdrawal of the guilty plea despite the fact

that the district court had vacated the interest portion of

the sentence was denied. This Court affirme d the district

court's election to delete the offending portion of its

sentence and rejected defendant's claim of entitlement to

withdrawal of the plea.

Appellant correctly points out that the plea agreement in

American Bag was executed pursuant to 11(e)(1)(B), while

the agreement in the instant case was executed pursuant to

11(e)(1)(C). However, upon closer examination the two

_________________________________________________________________

3. The initial panel in American Bag remanded the ca se to the districtcourt to consider Defendant's Motion to Correct which had been filed

after the filing of the notice of appeal, but before the appeal had been

heard. In its original motion, Defendant asked the court to vacate the

interest portion of its judgment, but did not move for withdrawal of its

plea. Upon remand American Bag argued for withdrawal of its plea.

8

agreements are very similar, and therefore the American

Bag decision is indeed instructive. While nominally the plea

agreement in American Bag was an 11(e)(1)(B) agreement,

the inclusion of a provision allowing the defendant

corporation the opportunity to withdraw its plea if the court

did not follow the government's recommendation, in effec t,

converted the plea contract into an 11(e)(1)(C) agreement.

In essence, the parties in American Bag, as they would

pursuant to an 11(e)(1)(C) plea agreement, presented a

stipulated sentence to the district court: American Bag

would enter a plea of nolo contendere, cooperate fully with

the government, and pay a fine of $500,000 in $50,000

annual installments. The parties further agreed that if the

court did not accept this "stipulated" sentence, American

Bag would be free to withdraw its plea. T hus, the parties

granted to defendant the same ability to withdraw a plea

provided in Rule 11(e)(1)(C) by including a withdrawal

provision in their plea agreement. Moreover, both the

district court and this Court appear to have treated the plea

agreem ent as if it had been executed pursuant to

11(e)(1)(C). The district court acknowledged the withdrawal

provision contained in the agreement when it stated: " `(If)

the court believes that the recommended sentence is

inadequate, the court will allow the entry of a plea of nolo

contendere to be withdrawn on behalf of American Bag &

Paper Corporation.' " Id. at 1067 (quoting the district court).

Similarly, this Court observing that the record was unclear

as to whether the district court was affirmative ly rejecting

the plea agreement, remanded the case for clarification.4 Id.

at 1068. Had this Court ignored the plea withdrawal

_________________________________________________________________

4. It is interesting to note that in the instant case Gil christ also filed

a

Rule 35(c) motion seeking to correct the sentence imposed by the district

court. Like the defendant in American Bag, Gilchrist did not move to

withdraw his plea in his Rule 35(c) motion, but rather sought an order

conforming his sen tence to the provisions of the plea bargain. It is

particularly worth noting that in support of his motion to correct

Gilchrist relies on this Court's opinion in American Bag. See Defendant's

Memorandum of Law in Support of Motion to Correct Sentence Pu rsuant to

Fed.R.Crim.P. 35(c), Supplemental Appendix, at 24. However, following the

filing of his notice of appeal, Gilchrist moved to withdraw his Rule 35motion.

9

provision and read the agreement in American Bag as a

traditional 11(e)(1)(B) plea agreement, it would have been

under no obligation to remand the case to the district

court. It could have instead interpreted the district court's

imposition of interest as an authorized modification of the

senten ce recommended by the government in the plea

agreement.

As noted above the record in the instant case suggests

that it is unclear whether the district court intended to

reject the terms of the plea agreement as proposed by the

parties. In American B ag we concluded that:

[w]hen, as here, the court does not intend to reject the

terms of a plea bargain but, nevertheless, imposes a

sentence allegedly inconsistent with the terms of that

plea bargain, it appears consistent with the provisions

of Fed.R.Crim.P. 11(e)(4), to allow the district court, in

the first instance, the opportunity to correct its own

error. Thus the district court, upon appropriate motion,

may choose to conform the senten ce to the terms of the

plea bargain or allow withdrawal of the plea.

In spite of the fact that the plea agreement in the instant

case was executed pursuant to 11(e)(1)(C) as opposed to

11(e)(1)(B), for the reasons stated above, we still find t he

reasoning in American Bag applicable.5

_________________________________________________________________

5. Appellant relies on the Sixth Circuit's opinion in United States v.

Mandell, 905 F.2d 970 (6th Cir. 1990). In that case the defendant

ente red a plea of guilty pursuant to a plea agreement specifying a precise

range and a stipulation including an agreed upon offense level. Mandell's

plea agreement, like that in the instant case, included a provision

authorizing the defendant to withdraw hi s plea if the sentencing court

departed from the stipulations of the parties. Mandell, 905 F.2d at 971.

The sentencing court accepted the plea, but upon review of the

presentence report, increased the offense level. The Sixth Circuit held

that the plea agreement had been breached. The court noted that

generally a breached plea agreement was remedied by either specific

performance or by allowing the defendant to withdraw the plea. The

Mandell court concluded that the agreement itself provided for the

remedy of withdrawal of the plea, and therefore under the circumstances

the option of specific performance entitled the defendant to the same

remedy as withdrawal. Id. The court further determined that the

10V.

Upon consideration of the record, we will vacate the

judgment and sentence of the district court. The matter

shall be remanded to the district court to determine

whether the appropriate remedy is to require specific

performance of the agreement or permit the appellant to

withdraw his plea. Unless the court can, and is disposed to,

impose the sentence agreed to by the parties in accordance

with applicable statutes and guidelines, appellant should

be afforded the opportunity to withdraw his plea a nd plead

anew.

_________________________________________________________________

agreement did not provide Mandell with the right to have his sentence

determined at the stipulated offense level under a theory of specific

performance. Consistent with our opinion in American Bag, we leave the

initial determination of whether Gilchrist is entitled to specific

performance of his plea agreement, and thus the sentence to which he

stipulated, to the district court.

11

BECKER, Circuit Judge, concurring dubitante.

I join in the majority opinion insofar as it vacates the

judgment of the district court, but I have problems with its

instructions on remand. The majority orders that the

matter

be remanded to the district court to determine whether

the appropriate remedy is to require specific

performance of the agreement or permit the appellant

to withdraw his plea. Unless the court can, and is

disposed to, impose the senten ce agreed to by the

parties in accordance with applicable statutes and

guidelines, appellant should be afforded the

opportunity to withdraw his plea and plead anew.

In my view, this discussion does not give the district court

ad equate guidance as to what might constitute a proper

sentence within the framework of the plea bargain.

The majority has properly concluded that the sentence of

twelve months supervised release violated the plea

agreement.1 Perhaps the majority has in mind that the

district court on remand might reduce the term of

supervised release to one month conditional on one month

home confinement. While that would be a legal sentence, I

think that it would breach the plea bargain.The majority's analysi s, however, suggests that such a

sentence could be imposed on remand. It reasons that

_________________________________________________________________

1. The district court's decision to include a twelve month term of

supervised release in Gilchrist 's sentence is not the non

- sequitur that it

appears to be at first glance. Although under U.S.S.G. S 5D1.1(b) the

imposition of a term of supervised release is discretionary where the

term of incarceration is less than one year, under U.S.S.G. S 5D1.2(a )(3)

if a period of supervised release is ordered, the length of such term is

one year for a defendant convicted of a Class E felony. When this is

coupled with the fact that home detention may only be imposed as a

condition of probation or supervised r elease, see U.S.S.G. S 5F1.2, it

appears entirely possible that the District Court felt that it was

required

to impose a one year term of supervised release in order to effectuate the

plea agreement. In fact, it was not so required since under U.S.S.G.

S 6B1.2, the court may accept an 11(e)(1)(C) plea agreement if it departs

from the guideline range "for justifiable reasons."

12

Plea agreements are contractual and therefore are to be

analyzed und er contract law standards. United States

v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989).

"In determining whether a plea agreement has been

broken, courts look to `what was reasonably

understood by [the defendant] when h e entered his

plea of guilty.' " United States v. Arnett, 628 F.2d 1162,

1164 (9th Cir. 1979) (quoting United States v. Crusco,

536 F.2d 21, 27 (3d Cir. 1976)). The government

asserts that a period of home detention may only be

imposed as a special condition of either supervised

release or probation. See U.S.S.G. S 5F1.2. Therefore,

the government maintains that when Appellant entered

into a plea agreement providing for one month home

d etention, the imposition of a period of supervised

release was, or should have been, within his reasonable

expectations.

I am unsure that the underlined statement is correct. I

have substantial reservations about importing into a plea

bargain a kind of punishment that the parties did not

appear to contemplate.2 Here neither the government nor

the defense apparently considered the possibility of

supervised release. Perhaps they thought that home

detention could be free

- standing. At a ll events, they did not

mention supervised release in the plea agreement.

Perhaps the parties reasonably should have expected that

home confinement carried with it supervised release. Whilecontract standards may generally apply, I believe that

cour ts must be more circumspect in divining the

reasonable expectations of a defendant who enters into a

plea agreement than we might be in the case of a contract

that does not implicate an individual's liberty interest.

Indeed, if courts construed plea ag reements narrowly, as I

think they should, the message would be clear that

_________________________________________________________________

2. As the majority correctly points out, it is well settled that

supervised

release constitutes punishment. S ee Maj op. at 5. For a list of the

recommended conditions of supervised release, which can convert

otherwise legal activities like wandering into an unsavory bar, talking

with felons or other disreputable characters, or drinking too much into

grounds f or re

- incarceration, see U.S.S.G. S 5B1.4.

13

"expectations" such as the one at issue in this case must

appear in the text of the agreement.

I would also be troubled if the majority has in mind that

the distri ct court might sentence Gilchrist to one month

home confinement without supervised release. While the

majority declines to reach this question, I believe that such

a sentence would be illegal. Under U.S.S.G. S 5F1.2 home

detention "may be imposed as a condition of probation or

supervised release". I read this as clearly indicating that

home detention is not a free

- standing sentence and thus

that the District Court is without authority to impose it on

Gilchrist as such.3

Notwithstanding these comm ents, I am not sufficiently

sure that the majority is wrong that I style this opinion a

dissent, which would require me to vote to remand with

directions to vacate the plea of guilty and permit the

defendant to go to trial.4 I therefore concur dubitant e.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

3. If, of course, the district court were simply to impose the nine month

prison term and the fine and assessment but with no supervised release

and no home confinement, there would be no problem. And, obviously,

there would be no problem if the court permits Gilchrist to withdraw his

plea.4. It seems clear that Gilchri st believes that the government no longer

can prove a case against him at trial. I presume that a key witness has

"gone south" on the government.

14