2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 6-20-2003 

# U S A v . F let che r P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-2846

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w Di g it al Re posit or y

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w . v i l l a no va . e du/thir dc ir c uit_2003/448NOT PRECE DENTI AL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ No. 02-2846

___________ UNITED S TATES OF AMERI CA

v. ANTONIO FLE TCHER, a/k/a Tone, Anton io Fletcher, Ap pellan t.

___________ On A ppeal from the Ord er of the U nited States D istrict Court

for the Dis tri ct of New Jersey (No. 00 Cr. 739) Distri ct Court J udge: The Honorable Stephen M. Orlofsky

___________ Submitte d Pursuant to Third Circ uit L. A.R. 34.1( a)

April 8, 2003 Bef or e: ALI TO, FUENT ES, GREENBE RG Circu it Judges

(Opinion Fi led: J une 20, 2003 )2 __________________________ OPINI ON OF THE COURT

__________________________ FU EN TE S, Circu it Judge
. The matter be fore the Court is an appeal fr om the District Court ’s entry of judgment and i mpositi on of a 120-month t erm of incar ceration in conne ction wit h the guilt y pl ea of appell ant Antonio Fl etcher (“Fletcher”). Fletche r agreed to waive his right to prose cution by

indict ment and pleade d guilt

y t o a singl e-count i nformati on charging him with bank robbe ry in viol ation of 18 U.S.C. §§ 2113(a ) and 2. The pl ea agreement contained a standard p rovision in w hich Fletche r and the G overnm ent agreed that there
wa s no b asis fo r either a dow nw ard o r upw ard d epartu re and that ne ither pa rty wou ld file such a motion prior t o sentenci ng. Despite a thorough c olloquy at his plea hearing, Fletcher no w claim s that he did no t understand this provision an d that the D istrict Court erred i n accepti ng his pl ea, notwithst anding his fail ure to obj ect t o the provi sion at that hearing. H e seeks rem and in ord er to permit him to file a motion f or a dow nwa rd depa rture, or in the altern ative, ren egotia tion of his plea agree men t. Fletch er has failed to establ ish that it

was plain er

ror for the Dist rict Court to ac cept hi s guil ty plea, and th er efo re , we wil l a ffi rm. I. On M ay 9, 2000, Fletcher and a co- conspir ator, Richard Everet t (“Ever ett” ) robbed the Equity Nati onal Bank in Lawnside, New Jersey. They fl ed with a bag cont aining3

approximately $17,156.21. Fletcher and Everett then led the police on a high speed chase during which t

hey caused another

driver ’s car

to flip. Later , the y continued on foot into a resi dentia l neighbor

hood, where the y br oke into a home and held an el derlycouple at gun poin t. Desp ite the serious offe nses com mitted, the Go vernm ent offered Fletcher a favorabl e plea agr eement, pe rmitting him t o plead gui lty to a si ngle count

of bank robbery . The plea a greement cont ained a st andard provi sion st ating t hat the “parti es agree that the re is no basis f or any upward or downward departur e or anyupward or downward adjustment not set forth herei n. Accordingl y, neithe r party wil l seek or argue for anydeparture or adjus tment not set forth herei n.” The provi sion appeared as part of a lis t of stipulat

ions i n “Schedule A,” at tached t o the si gned plea agr eement. At hi s plea hearing, Fletche r stated on the record t hat he under stood the enti re plea agreement and that he was enteri ng into i t volunt aril y and knowingl y. He never objected to the provisi on that precluded hi m from fili ng a motion for a downward departure. Ultimat ely , the Distric t Cou rt senten ced F letche r to 12 0 m onth s of im prison men t. II. Fletche r’s primarycontention on appealis that he di d not unders tand and/ or was not inf orm ed of the pro vision in the p lea ag reem ent pre cludin g the f iling of a mo tion to increase or de crease his sen tence. The refore, Fletcher c ontends tha t the District Cou rt erred i n accepti ng his gui lty plea. Specifi call y, he clai ms that he di d not unders tand the4

dow nw ard d epartu re pro vision beca use (1 ) the stipu lations in Sch edule A a ppea r after h is signature on the last page of the body of the agreem ent; (2) at the plea hea ring, Fletcher’s copy of the ple a agre eme nt w as m issing th e fina l page wh ich co ntaine d the s pecif ic provisi on in question; and ( 3) the Dis tri ct Court read a confusi ng statement which led Fletcher to believe that he had preserved his right to pursue a motion f or a dow nwa rd departure. Because he fail ed to rai se a ti mely obj ecti on to the pur ported er ror i n the Dist

rict Court, we review the matter for plain error. Under the plain error standard, Fletcher must show that “( 1) the Dis tri ct Court e rred; (2) i ts er ror was plain, i .e. , the error was ‘clear ’ or ‘obvious’ ; (3) the err or affect ed ‘[defendant ’s] s ubstantial rights ’; and ( 4) the er ror ‘seri ouslyaffect[e d] the fa irnes s, i ntegri ty or publi c reputation of j udicia l procee dings. ’” United States v. Reynoso , 254 F.3d 467, 474 (3d Cir. 2001) (quoting United States v. Olano , 507 U .S. 725, 732 (1993)). None of Fletcher ’s cont entions on appeal es tabli sh plai n error . Fir st, the fact that the stipulat

ions i n Schedule A are attached t o the ple a agreement a fter t he signat ure page is unre markable. Page two of the pl ea agreement specifi call y i ncorporates Schedule A by referenc e, and Fl etcher

cannot cl aim that

he did not know of the existence of the stipulations becau se he on ly signed page fo ur. Secon d, at his plea hearing , Fletcher’s counsel notifie d the Court t hat the copy of t

he plea agr eement which he was rea ding at that t ime wa s m issin g pa ge s ix, w her e the dow nw ard dep artu re stip ulati on a ppe ars.5

Nevertheless, the Government promptly provided a copy of the missing page. It also bears r epeati ng that t

he District Court

specifi call y as ked Fletc her if he underst ood all of the stipu lations a nd th e plea agree men t in its entire ty. Fletcher r espo nded affirm atively to both inquiries. Third, Fletche r clai ms that t he District Court

misled hi m into bel ieving t hat he
wo uld be a ble to mo ve f or a dow nw ard dep artu re, n otw ithsta ndi ng t he p lea a gre em ent. The Court simpl y st ated: And do you underst and that after your guideli ne range has be en determined, that the court has the aut

hority under

certain circumstances to depart f rom the guide line range -- excuse me; depar t from the guideli nes and impose a s entence t hat is rather more severe or less severe tha[n] is cal led for in the sentencing guideli nes? From this standar d clari fication which Dist rict Judges are required to make on the record, Fletcher claims that he und erstood that he retained a right to file a do wnw ard depa rture motion. Specifi call y, Fletche r argues that “ the defendant was advised expl icitly by the court t hat the court coul d depart downwardly from the gui deline s, l eading hi m to beli eve that he would be able t o make a motion aski ng the court for such a downward depart ure.” App ellant’s Brief, at 14. W e strain to see how a clarification abou t the District Cou rt’s independent

authori ty to depart

from the gui deline s can be interpreted as pres erving Fletche r’s right to file a motion for downward departure, which he rel inquis hed in an unambiguous and favor able pl ea agreement . In any event, the Court’ s clarific ation c annot be the basis o f plain error in the m anner ad vanced by Fletcher. In clos ing, w e also n ote tha t Fletch er’s req uested relief--re man d to p ermit h im to6

file a m otion f or a d ow nw ard d epartu re, or alter native ly, to perm it him to reneg otiate h is plea agr eement-- is a uni late ral at tempt t o modify hi s plea agreement. We find no gr ounds to g ran t suc h ex trao rdin ary relie f. See United States v. Cia nci , 154 F.3d 106, 110 (3d Cir. 199 8) (“ Un der the la w o f this circu it, [de fen dan t] can not ren ege on h is ag reem ent.” ). Fletche r has not

moved to vacate his pl ea, and i t is doubtful t hat he coul d do so in good faith w hen h is guilty plea wa s volu ntary and intelligen t. The refor e, Fletch er’s attem pt to preserve the benefi ts of a favor able dealand, si multaneousl y, to recove r rel inquis hed right s is deni ed. III. For the r easons set

forth above , the Distri ct Court di d not plai nly err i n accepti ng Fletche r’s gui lty

plea. We will affi rm the judgment and sentenc e imposed bythe Dist rict Co urt.7

______________________________ TO THE CLERK OF COU RT: Kindly file the fore going opini on.
By the C ourt,

/s/ Jul io M. Fuentes Circuit Judge