PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3644

___________

UNITED STATES OF AMERICA

v.

WILLIAM DAVENPORT

a/k/a Little One,

 Appellant

__________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D. C. No. 1-08-cr-00424-006)

District Judge: Honorable Christopher C. Conner

___________

Argued September 10, 2014

Before: FISHER, JORDAN and HARDIMAN, 

Circuit Judges.

(Filed: January 6, 2015)
2

Stephen R. Cerutti, II, Esq.

Christy H. Fawcett, Esq.

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Christian A. Fisanick, Esq. [Argued]

Amy C. Phillips, Esq.

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Attorneys for Appellee

J. Nicholas Ranjan, Esq. [Argued]

K&L Gates

210 Sixth Avenue

Pittsburgh, PA 15222

Attorney for Appellant

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OPINION

____________

HARDIMAN, Circuit Judge.

William Davenport appeals an order of the District 

Court denying his motion to vacate, set aside, or correct his 

sentence under 28 U.S.C. § 2255. Davenport claims his trial 

counsel was ineffective when he failed to argue that the 

Government had breached Davenport’s plea agreement.
3

Because we agree with the District Court that the plea 

agreement was not breached, we will affirm.1

I

A

On September 1, 2008, Drug Enforcement 

Administration agents executed a search warrant on a storage 

facility that Davenport controlled in Harrisburg, 

Pennsylvania. Once inside, the agents found large amounts of 

drug paraphernalia and cash as well as approximately 160 

grams of cocaine. The facility also housed three vehicles, 

including a Cadillac that contained a loaded nine-millimeter 

pistol stashed between its seat cushions. 

Several weeks later, DEA agents executed another 

search warrant, this time on Davenport’s residence in Enola, 

Pennsylvania. Davenport was present during this second 

search and agreed to cooperate. He was taken back to the 

DEA’s office, where he described his involvement with 

specific individuals in the drug trafficking business and 

admitted that he had purchased cocaine hydrochloride, 

cooked it into crack cocaine, and sold it. Davenport also 

admitted that the gun in the Cadillac was his. 

B

Following the searches, Davenport and five others 

were charged with several drug-related offenses. After 

initially pleading not guilty, Davenport signed a plea 

agreement in which he waived indictment and pleaded guilty 

 

1 The Court acknowledges the excellent advocacy of 

pro bono counsel, J. Nicholas Ranjan of K&L Gates LLP, on 

behalf of Mr. Davenport.
4

to a superseding information charging him with one count of 

conspiracy to distribute and possess with intent to distribute 

cocaine and cocaine base, in violation of 21 U.S.C. § 846. 

The plea agreement addressed, among other things, 

what recommendations the parties could make at sentencing. 

For example, Paragraph 12 stated that the Government would 

seek a three-level reduction in Davenport’s offense level if he 

accepted responsibility. Paragraph 13 permitted the 

Government to recommend a sentence it deemed appropriate, 

up to and including the maximum allowable by law. 

Likewise, Paragraph 26 stated that the Government could 

raise—and the sentencing court could consider—“all relevant 

information with respect to the defendant’s background, 

character and conduct including the conduct that is the subject 

of the charges which the United States has agreed to 

dismiss[.]” Rec. No. 178, at 16–17.2 And Paragraph 38 stated 

that the Government was not restricted in any way from 

responding to motions filed by Davenport or requests made 

by the sentencing court about how the Guidelines should be 

applied, “including but not limited to, requests for 

information concerning possible sentencing departures.” Rec. 

No. 178, at 23.

Most important for this appeal, however, is Paragraph 

14, which listed several specific recommendations as to how 

the Guidelines should be applied to Davenport’s conduct. 

Therein, the parties initially agreed to recommend:

that the quantity of cocaine hydrochloride 

attributable to the defendant is 15-50 kilos, the 

 

2 Davenport proceeded on the original record. Thus, all 

references to “Rec. No., at __” are to record entries in the 

district court docket.
5

quantity of crack cocaine attributable to the 

defendant is between 500 grams and 1.5 

kilograms, the defendant obstructed or impeded 

or attempted to obstruct or impede the 

administration of justice with respect to the 

investigation or prosecution of the offense, and 

the defendant possessed a firearm.

Rec. No. 178, at 8–9 (emphasis added). Paragraph 14 then 

stated that Davenport “understands that none of these 

recommendations is binding” on the U.S. Probation Office or 

the sentencing court, either of which could arrive at different 

findings, and that the Government fully intended to provide 

“all information in its possession which it deems relevant to 

the application of the [Guidelines] to the defendant’s 

conduct.” Rec. No. 178, at 9.

At some point during the plea negotiations, the clause 

“and the defendant possessed a firearm” was stricken from 

Paragraph 14 and the initials “WD” and “RLM” (presumably 

“William Davenport” and his trial counsel, “Royce L. 

Morris”) were handwritten next to the deletion.3 Davenport 

argues that the stricken provision precluded the Government 

from pursuing a gun enhancement at sentencing. The 

Government counters that the strike-through meant nothing 

 

3 The record does not indicate when this was done. 

Also, Davenport says his counsel and the Government 

initialed the stricken provision, Davenport Br. 4, whereas the 

Government claims Davenport and his counsel initialed the 

provision, Gov’t Br. 7. These ambiguities are immaterial to 

the outcome of this case.
6

more than that Davenport no longer stipulated to possession 

of a firearm. 

At a change-of-plea hearing, Davenport affirmed that 

he read and understood the plea agreement, and the 

Government summarized the specific provisions in 

Paragraphs 12 and 14. The Government made no mention of 

the gun enhancement during its recital of Paragraph 14, but it 

did state that a loaded gun had been found during the search 

of Davenport’s storage facility. Davenport admitted the facts 

presented, and the District Court accepted his plea of guilty.

C

The U.S. Probation Office calculated Davenport’s 

Total Offense Level at 35, which included a two-level 

enhancement under United States Sentencing Guidelines

(USSG) § 2D1.1(b)(1) for possessing a firearm in connection 

with his offense and another two-level enhancement under 

USSG § 3C1.1 for obstructing justice. Davenport’s Criminal 

History Category was IV, which yielded a Guidelines range 

of 235 to 240 months’ imprisonment in light of the statutory 

maximum of 20 years. Davenport raised eight objections to 

the PSR. 

During Davenport’s sentencing hearing, the 

Government stated that there was “the issue of whether the 

gun enhancement should apply.” Rec. No. 313, at 2. 

Consequently, the Government called a DEA agent to 

respond to Davenport’s objections to the gun and obstruction 

of justice enhancements. After the DEA agent and another 

witness testified, the District Court invited Davenport’s trial 

counsel to argue that there was insufficient evidence to 

connect the firearm to the drug offense at issue. The Court 

then asked the prosecutor to reply, and she stated: “The area 

where the gun, loaded gun[,] was located was accessible from 

the same area where the drugs were located. I think the 
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circumstances under which the gun was possessed can be 

taken into consideration by the court.” Rec. No. 313, at 49–

50. 

The District Court rejected Davenport’s objections to 

the PSR, but varied downward and sentenced him to 199 

months’ imprisonment. Davenport appealed his sentence and 

we affirmed. See United States v. Davenport, 422 F. App’x 

115 (3d Cir. 2011).

D

On July 3, 2012, Davenport filed a pro se motion to 

vacate, set aside, or correct his sentence under 28 U.S.C. § 

2255. The District Court denied the motion, holding that the 

stricken clause in the plea agreement meant merely that 

Davenport no longer stipulated to a gun enhancement, not 

that the Government had waived the right to advocate for the 

enhancement at sentencing. Accordingly, because the 

Government had not breached the plea agreement, 

Davenport’s trial counsel was not ineffective for failing to 

argue that it had. 

Davenport appealed and we granted a certificate of 

appealability on the question whether Davenport’s trial 

counsel was ineffective because he failed to object to the 

Government’s pursuit of a two-level gun enhancement in 

alleged violation of the terms of his plea agreement.4

II

We exercise plenary review over the legal component 

of an ineffective assistance of counsel claim. United States v. 

 

4 The District Court had subject matter jurisdiction 

over Davenport’s motion to vacate, set aside, or correct his 

sentence pursuant to 28 U.S.C. § 2255. We have jurisdiction 

over his appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).
8

Smack, 347 F.3d 533, 537 (3d Cir. 2003). We review the 

underlying facts for clear error, but exercise independent 

judgment on whether those facts, as found by the District 

Court, show that counsel rendered ineffective assistance. Id.

(quoting United States v. Baird, 218 F.3d 221, 225 (3d Cir. 

2000)).

III

The threshold question presented is whether the 

Government breached Davenport’s plea agreement when it 

urged the District Court to impose a two-level gun 

enhancement under USSG § 2D1.1(b)(1). We hold that it did 

not, so it necessarily follows that Davenport’s trial counsel 

was not ineffective for failing to object to a non-existent 

breach.

A

We follow a three-step analysis in determining 

whether there has been a breach of a plea agreement. First, we 

identify the terms of the agreement and the government’s 

alleged improper conduct. Second, we determine whether the 

government has violated its obligations under that agreement. 

And if it has, we fashion the proper remedy. United States v. 

Nolan-Cooper, 155 F.3d 221, 235 (3d Cir. 1998) (citing 

United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir. 

1989)). 

At the outset, we determine “whether the 

government’s conduct is inconsistent with what was 

reasonably understood by the defendant when entering the 

plea of guilty.” Id. at 236 (quoting United States v. 

Badaracco, 954 F.2d 928, 939 (3d Cir. 1992)). “Reasonably 

understood” is a “purely objective” standard governed by the 

common law of contract. United States v. Hodge, 412 F.3d 

479, 485–86 (3d Cir. 2005). Specifically, we look to the plain 

meaning of the plea agreement and eschew a “rigidly literal” 
9

interpretation of it. Id. at 486. And we give the benefit of any 

doubt to the defendant, given the government’s “tremendous 

bargaining power” in negotiating such plea agreements, 

United States v. Schwartz, 511 F.3d 403, 405 (3d Cir. 2008), 

and the fact that the defendant, “by entering into the plea, 

surrenders a number of [his] constitutional rights,” NolanCooper, 155 F.3d at 236. 

Once the plea agreement has been made, the 

government does not have to endorse its terms 

“enthusiastically,” Badaracco, 954 F.2d at 941, but it is 

expected to “adhere strictly to the terms of the bargain it 

strikes,” Moscahlaidis, 868 F.2d at 1361 (quoting United 

States v. Miller, 565 F.2d 1273, 1274 (3d Cir. 1977)), and we 

will hold the government to that bargain. 

B

Davenport argues that he reasonably expected that the 

Government would not pursue a gun enhancement based on 

the written terms of the plea agreement. We disagree. At the 

outset, we note that the extent to which the Government can 

be said to have advocated for an enhancement is itself 

debatable, given the fact that Davenport himself objected to 

the gun enhancement in the PSR, and the only time the 

Government addressed the issue at the sentencing hearing 

was when it was specifically asked to do so by the Court. 

Davenport makes three arguments in support of his 

claim that the Government breached the plea agreement. 

First, he claims that because Paragraph 14 contains a set 

number of sentencing recommendations the Government 

would pursue, the removal of one of those 

recommendations—the gun enhancement—led him to 

reasonably believe that the Government would not advocate 

for it at sentencing. “Under the contractual interpretive canon 

of expressio unius est exclusio alterius,” he argues, “the 
10

expression of these items necessarily excluded anything that 

was not listed, including the firearm enhancement.” 

Davenport Br. 14. He cites the Tenth Circuit’s decision in 

United States v. Scott, where, on his view, the Court was 

presented with “nearly identical facts” and held that the 

government had breached a plea agreement when it agreed to 

take specific positions at sentencing but then sought an 

unstated enhancement. 469 F.3d 1335, 1338 (10th Cir. 2006).

Second, Davenport leans on two Texas Supreme Court 

decisions for the proposition that a stricken provision in a 

contract “can manifest an intent to preclude or an 

unwillingness to be bound.” Davenport Br. 17 (citing 

Houston Exploration Co. v. Wellington Underwriting

Agencies, Ltd., 352 S.W.3d 462, 472 (Tex. 2011), and 

Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664–66 

(Tex. 1964)). Finally, Davenport argues that at the very least 

the stricken provision created ambiguity, which should be 

resolved in his favor. Davenport Br. 18 (citing Schwartz, 511 

F.3d at 405).

Davenport’s arguments fail because, as we stated in 

Schwartz, plea agreements “must be interpreted as a whole 

and no part should be ignored.” 511 F.3d at 405 (quoting 

Calamari & Perillo, Contracts § 3.13 (5th ed. 2003)). While 

Davenport homes in on the first part of Paragraph 14, the rest 

of that paragraph makes clear that the Government reserved 

the right to provide the District Court and the Probation 

Office with “all information in its possession which it deems 

relevant.” Rec. No. 178, at 9. Meanwhile, Paragraphs 13, 26, 

and 38 all put Davenport on notice of the Government’s 

significant flexibility at sentencing to respond to both his 

objections and the District Court’s inquiries. The record 

shows that the Government raised the issue of the gun only in 

direct response to Davenport’s argument that there was 
11

insufficient evidence to connect the gun with his offense. 

Read as a whole, the plea agreement clearly permits this kind 

of advocacy. 

The plea agreement also makes plain that Paragraph 14 

contained joint recommendations of the parties. 

Recommendations that the parties had not agreed to, or that 

they could unilaterally make or oppose, were not included in 

that list. Accordingly, the removal of the gun enhancement 

meant simply that the parties no longer jointly agreed on that 

specific recommendation. It did not, as Davenport claims, 

mean that the parties had jointly agreed that the Government 

would be barred from bringing the gun enhancement to the 

Court’s attention at sentencing. Davenport’s argument ignores

the other provisions of the plea agreement that explicitly 

permit the Government to do just that. 

Davenport’s argument also falls prey to the logical 

fallacy of the inverse—the incorrect assumption that if P 

implies Q, then not-P implies not-Q. See NLRB v. Noel 

Canning, 134 S. Ct. 2550, 2603 (2014) (Scalia, J., concurring 

in judgment) (explaining the logical error); Ruggero J. 

Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking

161 (3d ed. 1997) (same). Davenport essentially argues that 

striking the stipulation to the gun enhancement was 

tantamount to an agreement that he did not possess a firearm. 

He is incorrect. While striking the gun clause vitiated the 

recommendation, it did not tacitly impose the obverse 

recommendation.

Nor is Davenport’s reliance on the Tenth Circuit’s 

decision in Scott availing. The plea agreement in Scott 

delineated the “positions [the parties] expect to take at 

sentencing” and then articulated what those positions would 

be. Scott, 469 F.3d at 1338. The Tenth Circuit determined that 

the Government had breached the agreement because Scott 
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reasonably understood that language to mean the Government 

would not argue for other sentencing enhancements, but it did 

so anyway. Id. Here, the parties did not circumscribe the 

positions they were allowed to take at sentencing—a fact 

made evident when one reads the plea agreement as a whole, 

including the second half of Paragraph 14 and Paragraphs 13, 

26, and 38. Rather, the parties consented to a list of joint 

recommendations and agreed that the Government would 

have substantial flexibility to advocate positions at 

sentencing.

IV

Because the Government did not breach Davenport’s 

plea agreement, his trial counsel was not ineffective for 

failing to say there was a breach. The judgment of the District 

Court will be affirmed.