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 7-29-2003 

# U S A v . J ohnson 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 . 02-1625

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w . v i l l a no va . e du/thir dc ir c uit_2003/339NOT PRECEDE NTIAL UNITED STA TES COUR T OF APPEA LS FO R T HE TH IRD CIR CU IT

___________ No: 02-1625

___________ UNITED S TATES OF AMERI CA

v. DOUGLAS J OHNSON,

Appellant

_________________ On A ppeal Fro m the U nited States D istrict Court for the M iddle D istrict of P enns ylvania Distric t Cou rt Judg e: Th e H ono rable T hom as I. V anas kie

(D.C. Crimi nal No. 00-cr -59)

________________ Submitte d Under Third Circ uit L. A.R. 34.1( a)

July10, 2003 Be for e: N YG AA RD , SM ITH , Circuit Judges , and IRENAS ,* Distri ct Judge
. (Opinion Fi led: J uly 29, 2003)

_______________________

_____________________________ OPINI ON OF THE COURT

________________________

_______________ *Honorable Jose ph E. Irena s, Seni or United St ates Dis tri ct Judge for the Dist rict of New Jersey, sitting by

designation.2

SM ITH , Circuit

Judge : I. INT RODUCT ION Appellant

Douglas Johnson was i ndicte d for one count of inte rstate tr ansport

of a stol en motor vehi cle, in viol ation of 18 U.S.C. § 2312, and one count of t ransport of a minor in i nters tate commerce with intent to e ngage in sexua l activit y, in viol ation of

18 U.S.C. § 2423. Johnson plea ded guilt y t o Count 1 of the i ndictment , purs uant to a plea agreement, and was sentence d to 100 months i mprisonment. On appeal, Johns on argues that the Distric t Cou rt erred in enfo rcing th e plea agree men t and re fusin g to p ermit John son to with draw his gu ilty plea, and in dep arting u pw ard fr om the ap plicab le Sentenci ng Guideline s range. We agree with the Distri ct Court t hat Johnson’ s plea agree men t is enfo rceab le and that, pu rsuan t to the a greem ent, Joh nson wa ived h is right to appeal his sen tence. The refore, we will affirm the District Cou rt’s denial of John son’s motion t o withdraw his guilt y pl ea, and di smiss J ohnson’s appea l of his sentence for lac k of juri sdiction. II. FACTS AN D PROCEDURAL HI STORY Because we write onl y for the part ies, who are famili ar with t he facts of this case, we recit e onlythose fac ts re levant to the di sposition of thi s appeal. Johnson was indi cted for st eali ng a truck i n Central Pennsyl vania and driving i t to Cal iforni a, as wellas for trans porti ng a female minor across s tate lines for the pur poses of engagi ng in sexual
ac ti vi ty und erci rc ums ta nc es th at wou ldvi ol at e Pe nns y lv an iala w.3

On the ev e of tria l, John son e ntered into a p lea ag reem ent in w hich h e agre ed to plea d gu ilty to C oun t 1 o f the ind ictm ent, in tersta te tra nsp ort o f a s tolen mo tor v ehic le. Pu rsua nt to the p lea a gre em ent, the parties agree[d] to recommen d as follows: A. A n upw ard depa rture to an off ense level [o f] 24 and criminal history category 6 i s appropri ate. The result ant guide line r ange is i mprisonment for a term of 100 to 125 m onths. B. The Government willrecommend impris onment for a t erm of 100 months. The plea agre ement noted J ohnson’s under standi ng that “ none of theserecommendations are bindi ng upon eithe r the Court or the United State s Probati on Office.” I n additi on, the plea agr eement st ated that Johnson c ould not wit hdraw his gui lty

plea si mply bec ause the Court imposed a s entence wit h which he was dissatis fied, or because t he Court decl ined to foll ow any of the recommendations cont ained i n the ple a agreement. Finall y, Johnson waived his right to appeal hi s sente nce. The agre ement noted t hat [t]he de fendant i s aware that Titl e 18, Unit ed State s Code, Section 3742 aff ord s a d efe nda nt th e rig ht to app eal th e se nten ce im pos ed. Ac kno wled ging all of th is, the de fend ant kn ow ingly w aives th e right to appeal anysentence imposed withi n the st atutor y maximum, or

the manner in which that sentence was determined, on the grounds set forth i n Titl e 18, United States Code, Section 3742, or any other grounds. The parti es deleted the fol lowing provi sion fr om the plea agreement by striking it out and initialing it: At the sen tencing, the U nited States w ill be permitted to bring to the Cou rt’s atte ntion, and the Court will be pe rmitted to consi der, al l rel evant information with respect to the defendant ’s backgr ound, chara cter, and conduct i ncluding t

he conduct that is the subj ect of the charges whic h the4

United States has agr eed to di smiss, and the nature and ext ent of the defendant’ s cooperation, i f any. The United States willbe enti tled to bring to the Co urt’s attention and the C ourt will be en titled to consider any failure by the de fend ant to f ulfill any ob ligation und er this ag reem ent. At the guil ty plea hearing, t he Assist ant U.S. Attorney reiterate d the keyterms of the plea agree ment, nam ely: (1) the parties jointlyagreed to rec omm end that an upw ard depa rture is ap prop riate, and that the gov ernm ent w ould recom men d a 10 0 m onth sentence ; and (2) Johnson waived hi s right to appealin the pl ea agreement . Johnson confirmed that he had l ist ened to the Assist ant U.S. Attorney ’s st atements , and res ponded that [the plea ag reemen t] “is a recomm endation, bu t we’ll go by w hatever the C ourt does.” Duri ng his col loquy with the Court , Johnson a cknowledged that he had reached an agreement wit

h the government

regardi ng his criminalhist ory category and t he appropri ate Sent encing Guidel ines r ange. The Court a lso not ed that “I unders tand that you’ ve waived y our ri ght to appe al y our convict ion and sentence,” and J ohnson responded i n the affi rmative
. Johnson appear ed for sentencing on January 31, 2002. At t hat hearing, t

he government i nformed the Court that, just that day, it had received a l ette r indi cati ng that Johnson was prepar ed to go on the record as denyi ng that he ever had sexua l rel ations with the vi ctim. The government acknowledged t hat it had been “advis ed that whether or not thi s is a c ontested fact does not affect the guide line c alcul ation i n this case.” Consequently , the government not ed that the Court ne ed not hold a fact- finding he aring on that i ssue. Counsel for t he defense agr eed that

whether Johnson ha d engaged in se xual5

relat ion s w ith th e vic tim “ wa s no t a fa ctor in in crea sing the g uid eline ” ran ge. Neverthel ess, defense counselargued that the Court should ei ther “reject [] the pl ea agreement, or in t

he alt ernati ve, rej ect[] the rec ommendation [cont ained i n the ple a agreement] for the upward departur e.” The essen ce of defe nse c oun sel’s arg um ent see med to be a belief that, altho ugh his clie nt had agre ed to the terms of t he plea agr eement, t

he 100-125 month Guidel ines r ange agreed upon i n the ple a agreement was i mproperly predicated on Johnson’ s all eged misconduct wit

h the vic tim. Counsel asse rted t hat the Court shoul d rejec t the pl ea agree men t beca use a ny cons ideratio n of John son’s allege d m iscon duct w ith the v ictim
cons tituted a v iolation of the plea a greem ent by the gov ernm ent, en titling Joh nson to with draw his plea . In the a lternativ e, cou nsel ar gued that ev en if th e D istrict Co urt did not rej ect the plea agr eement, a ny upward departure, which would resul t in a s entence of between 100 and 125 months, would resul t in a “ tremendousl y di sproportionate ” sentence . He also cl aimed that there was “no l egal basi s” for an upward depar ture, because, aside fr om the plea agreement, J ohnson did not have noti ce of the r eason for t he departure. The D istri ct Court responded as follows: [T]he plea agreement didn’ t need t o specify the rea sons for t

hat upward departure, at

the ti me, because i t seemed i t was an agree d-upon matter. I will tell you that fre e from the ple a agre eme nt itself, an d if I ha ve to give y ou notice , we’lladjourn t his proc eeding and we’l l bri ng you back after you’ ve had an opportunity to be prepared to respond to i t, but I thi nk6

M r. John son’s crimin al history se riously un dersta tes the s everity of his crimin al reco rd, eve n tho ugh he’s a t the hig hest lev el. It certain ly doesn ’t, in my j udgment, pr ovide anyconfidence as to the l ikeli hood that he will not com mit an other c rime, in fact, I thin k it seriou sly unde rstates th at fac t, given his record. And indepen dent of the plea agreem ent itself, I would d epart upw ard, on the ba sis of th at fac tor or I’d cons ider it. So I’m p repare d to adjou rn this se ntenc ing p rocee ding , give you form al notif ication that I consider an upward departure in t he guidel ine range on that ground appr opriate , in add ition to a ny other a rgum ents the gov ernm ent w ants to make, with r espect to appropri ateness of the upward departure. If the Government

wants to as k me to conside r departing upward on the is sue of whether t

he rele vant conduct

include d sex with a 14- year -old, and if the G over nm ent w ants to p ut on evide nce, th en, the Go vern men t will have the opportunit

y t o do that. I willnot consi der that , without evidence being pres ented. Following t

his st atement by

the Court, Johnson reques ted addi tionaltime t o prepare a response to whe ther an upw ard depa rture was w arranted bec ause his crim inal history category se riousl y under -repr esented t he seri ousness of hi s prior crimina l record. The Court agree d, and post

poned Johnson’s sentenci ng. When defense counselasked the government whether

it i ntended t o ask for an upward depar ture “on t

he basis of the [fem ale minor] issue ,” the govern ment resp onded that it would “b e asking f or an up ward depa rture o n the b asis of the ple a agre eme nt.” T he go vern men t was not ce rtain w hethe r it
wo uld p resen t testimo ny by the vic tim, bu t agree d to g ive the defe nse se ven d ays notice if it inte nde d to pre sen t evid enc e on that q ues tion
. At the sentencing proc eeding on February 26, 2002, t he Court hear d arguments on the withdr awal of plea i ssue. Defense counsel a sserted that , under cont ract l aw princi ples, the Court ha d discr etion to allow the withdrawal of a plea agr eement where the7

other par ty has breache d. Speci fical ly , counselargued that the gove rnment’s “bringi ng up the oth er con duct in volv ing the mino r wa s a vio lation o f the p lea ag reem ent be caus e their abili ty to do that

was taken out when par agraph 14 was eli minated fr om the agreement at the time of the plea.” The govern ment asse rted that it had not bro ught the de fendan t’s misconduct wit

h the vic tim i nto the c ase. Noti ng that t he sexual mi sconduct wit h the victim “is a m atter w hich th e Co urt, inde pend ent of the pa rties, has s tatutory au thority to consider ,” the government as sert ed that it had “ not breac hed the pl ea agreement in that respect and there fore the re would be no grounds for Mr. Johnson to withdraw his plea. The Co urt then review ed the transc ript of th e Jan uary 31 , 2002 proc eedin g to determi ne whether the government had breached the pl ea agreement by i ndicating that one ba sis for the upw ard enha ncem ent wa s Johnso n’s cond uct with a m inor. The C ourt determi ned that

there was “no ba sis for concludi ng that t

he government br eached the pl ea agree men t at the p rocee ding ,” and that the refor e, Joh nson shou ld no t be allo we d to withdraw from the plea agr eement on that ground. Defense c ounsel pr esented no ot her arguments i n support of withdrawal of

the ple a. The vict

im was in court

on the sentencing date, and the g overnm ent indicated that sh e was p repared to testify if the Co urt wish ed. H ow ever, th e gov ernm ent reiter ated o n the re cord that Joh nson ’s con duct w ith the victim w as not a bas is for the gov ernmen t’s sentencing rec omm endation. T he Co urt proceeded t o impose a sentence of 100 months wit hout heari ng the te sti mony of the vi ct im.8

III. JURI SDI CTI ON The Distri ct Court e xercis ed juri sdiction pursuant to 18 U.S. C. § 3231. We have jurisdiction under 2 8 U.S .C. § 129 1 to review Johnso n’s appea l of the D istrict Court’s denial of Johnson’s request to withdr aw his guil ty plea. We lack juri sdiction to hear the
me rits o f Jo hns on’ s ap pea l reg ard ing the le ngt h of his s ente nce . IV. STANDARD OF REVIEW Whether the governm ent’s conduct violated t he terms of the plea agreement is a que stion of la w a nd o ur re view is ple nar y. Un ited Sta tes v. M osca hlaidis , 868 F.2d 1357, 1360 (3d Cir. 1989). We examine the legal ity of the waiver

provisi on in Johnson’ s plea agr eem ent d e no vo. United Stat es v. Khat tak , 273 F.3d 557, 560 (3d Cir. 200 1). V. AN ALY SIS A. The District Court’s refusal to permit Johnson to wi thdraw his guilty pl

ea was proper Johnson conte nds that

the Dist rict Court erred in deny ing his request to withdr aw his gui lty

plea, assert

ing that the government

breached the plea agr eement by urging t he Court to cons ider conduc t rel ating to Johnson’s i nterac tions with the mi nor victim. If the government bre aches a pl ea agreement , the case must be remanded eithe r for r esentenc ing
or w ithd raw al of the d efe nda nt’s g uilty ple a. M osca hlaidis , 868 F.2d at 1360 (citing Santobello v. New York , 404 U.S. 257 ( 1971). Upon revi ew of the recor d, we conclude that the gov ernm ent did not im prop erly urge th e Co urt to co nside r John son’s cond uct w ith the v ictim
.1 Although he concur s in the judgment, Judge Ire nas emphasize s his di ssati sfacti on

with the procedure fol lowed by t he District Court . It

is cl ear that the parti es agreed to a substantial upw ard depa rture in the plea ag reemen t, but the basis for that up ward departure is murky . The parties di d not consi der U.S.S. G. § 4A1.3, which deal s with the adequ acy of the defe ndant’s crim inal history category, although the D istrict Court indicated that a departure under that provisi on might be appr opriate. However, the 100 month sentenc e agreed t o in the pl ea agreement was signif

icantly larger

than the 15-21 months Johnson would have received for Count I alone (assuming herecei ved credi t for acc epta nce of r esp ons ibility). Judg e Irena s con cede s that it is en tirely possib le that Jo hnso n dec ided to enter in to the ple a agreement be cause he coul d elimi nate a l arge ri sk on Count II by accepti ng an increa sed sent ence on Count I. By having Count II di smissed, Johnson als o avoided being subj ect t o Megan’s Law registr ation. But because one of t he primary

motivations for the Sentencing Guidel ines was t o promote tr uth in s entenci ng, Judge I renas bel ieves that a plea agree ment w hich prov ides for a sub stantial upwa rd or dow nwa rd departure from a sen tencin g ran ge w hich w ould apply to th e fac ts adm itted by the d efen dant in his plea colloquy should set forth with specificit

y the basi s for the departure. Because most 9 The government’s statement on January 31, 2002 that i t had rec eived a l ette r indica ting tha t John son w as pre pared to den y having had s exua l relation s with the vic tim did not cons tit

ute a bre ach. The government explic itl y st ated that anyconduct byJohnson wit h the vi ctim di d no t a ff

ec t t he Gui de li ne s c al cu lati on, an d de fe ns e c oun se l a gr ee d. At that he aring, the Dist

rict Court expli citl y st ated that it would not depart

upward on the basis of Johnson’s a llege d relat ions with the vic tim unl ess the government pre sented evidence on t

hat is sue. The government never pr esented e vidence on that is sue. The government cl early

stated that

it was bas ing it s request for an upward depart

ure on the lang uag e of the p lea a gre em ent it self , and also on t he d efe nda nt’s p rior c rimi nal r eco rd. We are sati sfied t

hat the government di d not breac h the ple a agreement, and that the Distric t Cou rt prop erly accep ted an d enf orced that ag reem ent. 1plea agr eements provi de that sentenci ng recommendations or agreement s by t he parti es are not bind ing on the c ourt, a clear statemen t of the reason s for a prop osed de parture would assis t the di stri ct court in making a deci sion with respect to accept ance of the pl ea agreement and t

he imposition of an appr opriate sentenc e.

10 B. Johnson’s waiver of his ri ght to appeal

deprives this Court

of juri sdict ion to review the lengt

h of his se ntence Having decided t

hat the plea agr eement is enforceabl e and that Johnson did not

have a ri ght to w ithdraw his plea , we la ck juris diction to con sider w hethe r the D istrict Co urt abu sed its discr etion i n departi ng upward when sentenci ng Johnson. I t is undisput ed that Johnson’s pl ea agree men t conta ins a w aiver o f his rig ht to ap peal h is sente nce. “ Wa ivers o f app eals, if en tered in to knowingly and voluntaril y, are val id, unl ess the y work a mis carri age of just ice. ” Khattak , 273 F.3d at 563. At sentenci ng, the Distri ct Court f ully complied wit

h Federal Rul e of CriminalProcedure 11 and determined that

Johnson’s pl ea was enter ed into knowingl y and vol untari ly . Having revi ewed the rec ord, we find no e vidence of i njustice i n Johnson’s s entenci ng. Because Johns on has not proven that

his pl ea was not knowing or vol untaryor that the waiver

worked an injus tice , we find that the wa iver-of-app eal is valid, and that w e lack jurisdiction to review the length of Johnso n’s sentence . Accordingl y, we will dis miss this port ion of the appeal and aff irm the j udgment of the Distric t Cou rt. VI. CONCLU SI ON For the for egoing rea sons, t he judgment of t

he District Court

will be a ffirmed.11 TO THE C LERK: Ple ase file th e fo reg oin g O pin ion
. By the C ourt:
/s/ D. B rook s Sm ith Circuit Judge Date: Jul y 29, 2003