10-413

United States v. Woltmann

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2009

6

7

8 (Argued: June 9, 2010 Decided: July 6, 2010)

9

10 Docket No. 10-413

11

12 - - - - - - - - - - - - - - - - - - - -x

13

14 UNITED STATES OF AMERICA,

15

16 Appellee,

17

18 - v.-

19

20 GARY WOLTMANN,

21

22 Defendant-Appellant.

23

24 - - - - - - - - - - - - - - - - - - - -x

25

26 Before: JACOBS, Chief Judge, WINTER and WALKER,

27 JR., Circuit Judges.

28

29 Defendant-appellant Gary Woltmann pled guilty in the

30 United States District Court for the Eastern District of New

31 York (Platt, J.) to one count of tax fraud. Woltmann filed

32 a notice of appeal challenging the sentence, and the

33 government countered with a motion to dismiss on the basis

34 of the appeal waiver provision in the plea agreement. We

35 conclude that the waiver is unenforceable, and we vacate and

36 remand to a different district judge for re-sentencing.
2

1

2 RICHARD M. LANGONE, Langone &

3 Associates, Levittown, New York,

4 for Appellant.

5

6 CHARLES P. KELLY, for Loretta E.

7 Lynch, United States Attorney’s

8 Office for the Eastern District

9 of New York, Brooklyn, New York,

10 for Appellee.

11

12

13 DENNIS JACOBS, Chief Judge:

14

15 Defendant-appellant Gary Woltmann pled guilty in the

16 United States District Court for the Eastern District of New

17 York (Platt, J.) to one count of tax fraud. Woltmann filed

18 a notice of appeal challenging the sentence, and the

19 government countered with a motion to dismiss, citing

20 Woltmann’s waiver of appeal in the plea agreement (“the

21 Agreement”). We conclude that the waiver is unenforceable,

22 and we vacate and remand to a different district judge for

23 re-sentencing.

24

25 I

26 Pursuant to the Agreement, Woltmann pled guilty in

27 September 2007. After signing the Agreement but before

28 sentencing, Woltmann provided substantial assistance to the

29 government in its (ultimately successful) prosecution of
 Section 5K1.1 provides that “[u]pon motion of the 1

government stating that the defendant has provided

substantial assistance in the investigation or prosecution

of another person who has committed an offense, the court

may depart from the guidelines.”

3

1 another criminal tax fraud case. In exchange for this

2 cooperation, the government submitted a letter to the

3 district court pursuant to U.S.S.G. § 5K1.1 “urg[ing] the

4 Court to consider formulating a sentence below the advisory

5 guidelines” range of 18 to 24 months’ imprisonment. 

1

6 At a December 11, 2009 hearing (“December 11 Hearing”),

7 defense counsel and the government urged the district court

8 to consider the 5K1.1 letter and the factors enumerated in

9 18 U.S.C. § 3553(a) when imposing sentence. Notwithstanding

10 these prompts, the district court deemed the 5K1.1 letter an

11 improper effort by the parties to repudiate, modify, or

12 amend the Agreement, and ruled that the Agreement

13 constituted Woltmann’s consent to any sentence at or below

14 27 months (the upper limit of the appeal waiver provision). 

15 Accordingly, the judge discounted the 5K1.1 letter and the

16 other factors enumerated in § 3553(a). 

17 At a hearing on January 22, 2010 (“January 22

18 Hearing”), the district court sentenced Woltmann principally

19 to 18 months’ imprisonment (the low end of the Guidelines
4

1 range). In short succession, Woltmann filed a notice of

2 appeal in this Court; the government moved to dismiss on the

3 basis of the appeal waiver provision in the Agreement; and

4 Woltmann moved for bail pending appeal. 

5 On April 7, 2010, we granted Woltmann’s bail motion. 

6 See United States v. Woltmann, 10-0413-cr (Apr. 7, 2010)

7 (order). The government’s motion to dismiss was then

8 submitted to this panel. Because the facts, rules, and

9 considerations that bear upon the motion likewise control

10 the merits of the underlying appeal, we heard oral argument

11 on the merits, and we resolve the merits together with the

12 motion: The government’s motion is denied, Woltmann’s

13 sentence is vacated, and the matter is remanded to a

14 different district court judge for re-sentencing. 

15

16 II

17 Three provisions of the Agreement have bearing 

18 on this appeal: 

19 • Paragraph 2 states that the applicable

20 Guidelines term of imprisonment is 18-24

21 months. 

22

23 • Paragraph 2 acknowledges that “the Guidelines

24 are advisory and the court is required to

25 consider any applicable Guidelines provisions

26 as well as other factors enumerated in 18
5

1 U.S.C. § 3553(a) to arrive at an appropriate

2 sentence in this case.”

3 

4 • Paragraph 4 contains an appeal waiver

5 provision: “The defendant agrees not to . . .

6 appeal . . . the conviction or sentence in the

7 event that the Court imposes a term of

8 imprisonment of 27 months or below. This

9 waiver is binding without regard to the

10 sentencing analysis used by the Court.” 

11

12 Provisions like these are common, and their inclusion in the

13 Agreement is unexceptional.

14 At the December 11 Hearing, the government reiterated

15 its position, expressed in the 5K1.1 letter, that the court

16 should impose a below-Guidelines sentence due to Woltmann’s

17 substantial assistance. See, e.g., Tr. of December 11

18 Hearing at 8. The district court refused. It viewed the

19 Agreement as the “governing” or “controlling” instrument,

20 e.g., id. at 4-5, and reasoned that the government’s

21 advocacy of a below-Guidelines sentence on the basis of the

22 5K1.1 letter was an impermissible attempt to “repudiate,”

23 “modify,” or “amend” the Agreement, e.g., id. at 5, 14. The

24 district court felt free to ignore the 5K1.1 letter and the

25 § 3553 factors because Woltmann had ostensibly “consented to

26 such and such a sentence” by agreeing both to the Guidelines

27 calculation in Paragraph 2 and the appeal waiver in

28 Paragraph 4. Id. at 6. In effect, the district court
6

1 believed that because of the appeal waiver, any sentence at

2 or below 27 months was appropriate, regardless of whether or

3 how the 5K1.1 letter and the § 3553(a) factors--if

4 considered--would bear on the sentence.

5 At the January 22 sentencing hearing, the district

6 court stated that it had “considered the [A]greement that

7 was made with the government and the provision that we just

8 read, paragraph four [i.e., the appeal waiver provision],

9 and the court feels that under the circumstances here and

10 the family circumstances that an 18 month sentence is an

11 appropriate one.” Tr. of January 22 Hearing at 12. The

12 court also intimated, as it had done at the December 11

13 Hearing, that consideration of the 5K1.1 letter would

14 constitute an impermissible repudiation of the Agreement:

15 [Defense Counsel]: I would just like to point

16 out to the court, judge,

17 first, that all of the

18 guideline calculations were

19 based upon an estimate

20 prior to any cooperation or

21 5K1 letter. 

22

23 The Court: Are you saying he wants to

24 repudiate the plea

25 agreement? 

26

27 Id. at 4 

28 Woltmann filed a notice of appeal, and the government
7

1 moves to dismiss citing the appeal waiver in Paragraph 4 of

2 the Agreement. Woltmann in turn argues that the district

3 court’s treatment of the 5K1.1 letter and the § 3553(a)

4 factors requires us to vacate the sentence and remand for

5 re-sentencing. We agree. 

6

7 III

8 Plea agreements are reviewed “in accordance with

9 principles of contract law.” United States v. Vaval, 404

10 F.3d 144, 152 (2d Cir. 2005) (internal quotation marks

11 omitted). We consider “the reasonable understanding of the

12 parties as to the terms of the agreement.” United States v.

13 Colon, 220 F.3d 48, 51 (2d Cir. 2000). Moreover, because

14 plea agreements are “unique contracts, . . . we temper the

15 application of ordinary contract principles with special due

16 process concerns for fairness and the adequacy of procedural

17 safeguards.” United States v. Granik, 386 F.3d 404, 413 (2d

18 Cir. 2004) (internal quotation marks omitted). Such

19 contracts are narrowly construed. Id.

20 It is a “well-settled legal principle that the

21 sentencing judge is of course not bound by the estimated

22 range in a plea agreement.” United States v. Hamdi, 432
8

1 F.3d 115, 124 (2d Cir. 2005) (internal quotation marks

2 omitted). To the contrary, before imposing sentence, a

3 district court must consider both a 5K1.1 letter (if one is 

4 proffered), United States v. Campo, 140 F.3d 415, 418-19 &

5 n.5 (2d Cir. 1998) (per curiam), and the factors enumerated

6 in § 3553(a), Gall v. United States, 552 U.S. 38, 49-51

7 (2007).

8 Ordinarily, appeal waivers are enforced--and for good

9 reason. See United States v. Morgan, 386 F.3d 376, 380 (2d

10 Cir. 2004) (explaining that voiding such waivers “would

11 render the plea bargaining process and the resulting

12 agreement meaningless” (internal quotation marks omitted));

13 United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir.

14 2000) (“[T]he benefits of such waivers inure to both

15 government and the defendant alike, with the government

16 receiving the benefit of reduced litigation, and the

17 defendant receiving some certainty with respect to his

18 liability and punishment.”); United States v. Yemitan, 70

19 F.3d 746, 747-48 (2d Cir. 1995) (“If this waiver does not

20 preclude a challenge to the sentence as unlawful, then the

21 covenant not to appeal becomes meaningless and would cease

22 to have value as a bargaining chip in the hands of
9

1 defendants.”). But we will not enforce an appeal waiver

2 where--as here--the “sentencing decision . . . was reached

3 in a manner that the plea agreement did not anticipate,”

4 United States v. Liriano-Blanco, 510 F.3d 168, 174 (2d Cir.

5 2007); see also United States v. Roque, 421 F.3d 118, 123-24

6 (2d Cir. 2005) (suggesting that an appeal waiver would be

7 unenforceable if the defendant failed to “underst[an]d fully

8 the consequences of his bargain, both in terms of what he

9 was gaining and what he was giving up”), or where “the

10 sentencing court failed to enunciate any rationale for the

11 defendant’s sentence, thus amounting to an abdication of

12 judicial responsibility subject to mandamus,” Gomez-Perez,

13 215 F.3d at 319 (brackets and internal quotation marks

14 omitted). 

15 Applying these principles, we hold that vacatur is

16 required because the district court: (1) improperly “relied”

17 on the Agreement to the exclusion of the 5K1.1 letter and

18 the § 3553(a) factors; and (2) misread the Agreement as

19 manifesting Woltmann’s enforceable concession that any

20 sentence at or below 27 months obviated the need to consider

21 the 5K1.1 letter and the § 3553(a) factors. In so doing,

22 the district court failed to give effect to the parties’
10

1 expectations and deprived Woltmann of the benefit that he

2 (and the government) agreed he would receive from signing

3 the Agreement (i.e., a weighing of the 5K1.1 letter and the

4 § 3553 factors). At the same time, the court also

5 “abdicated” its judicial responsibility in the way posited

6 by Gomez-Perez, 215 F.3d at 319. 

7

8 A

9 As the transcript of the December 11 Hearing

10 unambiguously shows, the district court felt itself entitled

11 to rely on the Agreement notwithstanding our law that such

12 reliance is misplaced. See Hamdi, 432 F.3d at 124. For

13 example, when the government raised the 5K1.1 letter at the

14 outset of the hearing, the court responded: “[T]his is all

15 very good, but we have--starting this case off, with an

16 agreement that you and counsel for the defendant made, and

17 signed by the defendant, and as far as I’m concerned, that

18 is still the governing instrument here. . . . The plea

19 agreement is the controlling instrument.” Tr. of December

20 11 Hearing at 4-5. Other examples abound. See, e.g., id.

21 at 5 (“[The government], the defendant, and the defense

22 lawyer made an agreement, and that agreement has been, in my
11

1 book, controlling right from the start here.”); id. at 7

2 (“[A]s I see it at the moment, [the Agreement] overrides all

3 else in this picture.”); id. at 11 (“[Y]ou made an agreement

4 and I’m entitled to rely on it.”); id. at 15 (“I’m troubled

5 by the government’s position that I may ignore this

6 agreement, which I don’t think that I can or I may, I can,

7 but I may not.”); id. at 20 (“What is controlling in my book

8 is the agreement. . . .”). 

9 This (improper) reliance caused the district court to

10 misread the Agreement and, as a result, to impose a sentence

11 inconsistent with the parties’ expectations in signing the

12 Agreement. The Agreement--by its own terms, as it was

13 unambiguously understood by both parties, and as it was

14 initially understood by the district court--contemplated

15 that sentence would be imposed only after the district court

16 considered the 5K1.1 letter and the § 3553(a) factors. See

17 Agreement ¶ 2 (“The defendant understands that . . . the

18 Guidelines are advisory and the court is required to

19 consider any applicable Guidelines provisions [i.e., 

20 § 5K1.1] as well as other factors enumerated in 18 U.S.C.

21 § 3553(a) to arrive at an appropriate sentence in this

22 case.”); id. ¶ 3 (“The Guidelines estimate set forth in
12

1 [P]aragraph 2 is not binding on . . . the Court.”);

2 Transcript of Plea Colloquy at 15 (September 18, 2007)

3 (district court summarizing Paragraph 2 of the Agreement and

4 ensuring that Woltmann understood that his sentence would be

5 based on “any applicable guidelines together with the

6 factors contained in 18 U.S.C. [§] 3553(a)”); December 11

7 Hearing at 8 (government urging the court to impose a below8 Guidelines sentence pursuant to the 5K1.1 letter); see also

9 Tr. of January 22 Hearing at 4 (defense counsel emphasizing

10 to the court “that all of the guideline calculations were

11 based upon an estimate prior to any cooperation or 5K1[.1]

12 letter”). 

13 Moreover, the government explained to the district

14 court that although some plea agreements preclude both

15 parties from making any motions, this Agreement did not:

16 This agreement does not preclude motions by any

17 party. Occasionally we will insert in these

18 agreements that the parties agree that no motions

19 will be filed in connection with the sentencing.

20 That sentence is not in this agreement. And since

21 the signing of the agreement, Mr. Woltmann has

22 cooperated, and I was--the government was simply

23 trying to bring that to the Court’s attention in

24 formulating a sentence.

25

26 Tr. of December 11 Hearing at 15-16. This omission was

27 intentional: The government intended to preserve its
13

1 ability to offer a 5K1.1 letter for the court’s

2 consideration at sentencing. 

3 Notwithstanding all this, the court concluded that, in

4 urging consideration of the 5K1.1 letter, the parties were

5 improperly attempting to repudiate or modify the Agreement--

6 and repeatedly rebuked them for doing so. See, e.g., id. at

7 9 (“[T]he government is changing its position here with

8 respect to this waiver.”); id. at 11 (sparring with the

9 government and finding it necessary to “read [the Agreement]

10 to you again because you apparently have not been reading

11 it”); id. at 11-12 (“I never had a case where the government

12 has made a firm agreement and then goes out and tries to

13 modify it, in effect.”); id. at 13 (“[The government is]

14 trying to modify that agreement.”); id. at 14 (“[The

15 government] can’t amend it this way, as I see it.”); id. at

16 15 (“And to attempt to modify that agreement in this fashion

17 I find very troubling.”); id. at 16 (“I don’t think that you

18 can modify this agreement that you made here.”). 

19 In effect, the court refused to consider the 5K1.1

20 letter and the § 3553(a) factors on the ground that the

21 appeal waiver and the sentencing range in the Agreement

22 obviated anything else. This erroneous conclusion denied
14

1 the parties their bargain and reasonable expectations. In

2 this way, the district court erred, and the appeal waiver

3 provision is unenforceable. Liriano-Blanco, 510 F.3d at

4 174; Roque, 421 F.3d at 123-24. 

5

6 B

7 The district court misconstrued the Agreement as an

8 enforceable concession by Woltmann that any sentence at or

9 below 27 months was appropriate--without regard to any 5K1.1

10 letter and the § 3553(a) factors. For example, the

11 following colloquy took place at the December 11 hearing:

12 [Prosecutor]: [T]he government does not

13 believe that [the 5K1.1 letter]

14 affects the plea agreement in

15 any way. However, when the

16 Court moves to set a sentence

17 under 3553(a), we ask the Court

18 to consider a sentence below the

19 guidelines in part because of

20 the cooperation of Mr. Woltmann. 

21 So I think it plays a role in

22 the second step, when you get to

23 the 3553(a) factors. 

24

25 The Court: What need do I have to get to

26 that level when I have a plea

27 agreement where he has consented

28 to such and such a sentence?

29

30 [Prosecutor]: Well, what’s been consented to

31 and agreed to is the guidelines.

32

33 The Court: No. No. 
15

1 December 11 Hearing at 6-7 (emphasis added). Similarly:

2

3 [Prosecutor]: [P]aragraph 4 of the plea

4 agreement . . . is simply a

5 waiver of appeal or challenge to

6 the sentence. All it does is

7 set a ceiling below which there

8 cannot be any appeal. . . . It

9 is not an agreement to a

10 sentence of that length. It is

11 simply a waiver of appeal. What

12 the parties have agreed within

13 the agreement is that the

14 guidelines are 18 to 24 months,

15 and then if the Court accepts

16 that and moves from the

17 agreement to 3553, and considers

18 the factors under 3553, the

19 government believes one of the

20 factors is Mr. Woltmann’s

21 cooperation, which the

22 government believes warrants a

23 sentence below the 18 to 24

24 month guideline.

25

26 The Court: That is a lot of double-talk

27 when you get right down to [it].

28

29 Id. at 8. And again:

30

31 [Prosecutor]: There’s an appeal waiver up to

32 27 months. That was never a

33 sentencing recommendation of the

34 government. There’s a guideline

35 of 18 to 24 months. Those two

36 facts come out of the plea

37 agreement. At that point when

38 the Court enters its 3553

39 analysis, the guidelines [are]

40 one of the things that the

41 Court--one of the items that the

42 Court looks at in formulating a

43 sentence. So there’s a

44 guideline of 18 to 24 months,
16

1 and then one of the things the 2 Court considers-- 34 The Court: What you’re saying is that thi

s

5 is, I’m not entitled to rely on

6 the agreement that the defendant 7 has made. 89 [Prosecutor]: You are entitled to rely on it. 

10 He has waived his appeal and any

11 challenge to it for a sentence

12 up to 27 months. He agrees that

13 the guidelines are 18 to 24

14 months. Those two things are

15 agreed. But then the Court is

16 required to move under Gall, 

17 G-A-L-L, over to the 3553.

18

19 The Court: I don’t have to do anything if I

20 have this agreement. Because

21 it’s not challengeable according

22 to you, the agreement itself.

23

24 [Prosecutor]: But the agreement doesn’t

25 contain any sentencing

26 recommendation.

27

28 The Court: The agreement says he may not

29 challenge anything that the

30 Court does . . . in the event

31 the Court imposes a term of

32 imprisonment of 27 months or

33 below. This waiver is binding

34 without regard to the sentencing

35 analysis used by the Court. The

36 defendant waives all defenses 

37 . . . . You’re trying to modify

38 that agreement.

39

40 [Prosecutor]: No. The fact--

41

42 The Court: I don’t think you may.

43

44 [Prosecutor]: The fact that nobody can
17

1 challenge it does not mean that

2 it’s the appropriate sentence or

3 that anybody--

4

5 The Court: It’s not a question of an

6 appropriate sentence. It is

7 appropriate by both sides[’]

8 agreement if it’s 27 months or

9 below.

10

11 [Prosecutor]: Well, not that it’s appropriate,

12 but that no one will appeal it

13 or challenge it in any way. 

14

15 Id. at 12-14 (emphases added). 

16 The district court’s actions “amount[ed] to an

17 abdication of judicial responsibility,” Gomez-Perez, 215

18 F.3d at 319, requiring us to deem the appeal waiver

19 unenforceable. The mandate of Campo, 140 F.3d at 418-19 &

20 n.5, and Gall, 552 U.S. at 49-51, is that a district court

21 must consider a 5K1.1 letter and the § 3553(a) factors when

22 formulating the appropriate sentence. Refusal to consider

23 these things is an error categorically different from a

24 misapplication of a guideline, or a mistake of law, or a

25 dubious finding of fact. What happened here is in the

26 category of error contemplated in Gomez-Perez, 215 F.3d at

27 319, which states that an appeal waiver is unenforceable

28 when the district court abdicates its duties in imposing

29 sentence.
18

1 

2 IV

3 On remand, Woltmann’s re-sentencing should proceed

4 before a different district court judge. 

5 Three considerations guide our analysis: “(1) whether

6 the original judge would reasonably be expected upon remand

7 to have substantial difficulty in putting out of his or her

8 mind previously-expressed views or findings determined to be

9 erroneous, (2) whether reassignment is advisable to preserve

10 the appearance of justice, and (3) whether reassignment

11 would entail waste and duplication out of proportion to any

12 gain in preserving the appearance of fairness.” United

13 States v. Hernandez, 604 F.3d 48, 55-56 (2d Cir. 2010)

14 (internal quotation marks, brackets, and ellipses omitted). 

15 These considerations favor reassignment. 

16 1. In light of the scorn with which Judge Platt

17 approached the matters pertaining to sentencing, we have

18 considerable doubt as to whether on remand he would give

19 fair consideration to the 5K1.1 letter and the § 3553(a)

20 factors. Our doubt is reinforced by events at the December

21 11 Hearing, when the district court considered itself to be

22 (in terms or effect) a party to the Agreement, or a
19

1 beneficiary of the appeal waiver. For example, the court

2 declared: “I am entitled to rely on an agreement. I want to

3 make that abundantly clear that’s my position.” Tr. of

4 December 11 Hearing at 22; see also id. at 11 (“[The

5 government] made an agreement and I’m entitled to rely on

6 it.”). And: “[The government] made an agreement with

7 respect to all three of us. . . ,” id. at 14 (emphasis

8 added). 

9 The district court’s strange misconception of its role

10 vis-a-vis the parties and the Agreement may explain the

11 court’s asserted right to “rely” on the Agreement, and its

12 conspicuous frustration at what the court viewed

13 (erroneously) as the parties’ attempt to repudiate or modify

14 the Agreement. It also casts doubt on the ability of the

15 judge on remand to suppress a view of the Agreement premised

16 on his own claim of right. 

17 2. In considering the appearance of justice, we must

18 consider Judge Platt’s pattern of error regarding 5K1.1

19 letters. See United States v. Doe, 348 F.3d 64 (2d Cir.

20 2003) (per curiam); Campo, 140 F.3d 415. 

21 3. Finally, reassignment would not waste substantial

22 judicial resources, because all the district court must do
20

1 on remand is what district courts do as a matter of routine:

2 consider the 5K1.1 letter and the § 3553(a) factors, and

3 impose sentence accordingly. 

4

5 CONCLUSION

6 For the foregoing reasons, we vacate the sentence and 

7 remand for re-sentencing before a different district court

8 judge.