By Malorie Letcavage
On June 24, 2015 the Fourth Circuit issued its published opinion in the criminal case, U.S. v. Obey. This case was based on Gregory Obey’s claims that the government breached its plea agreement in making its sentencing recommendation and that the district court did not have the authority to order his sentence to run consecutively to any future sentence. The Court held that the prosecutor did not breach the plea agreement and that the district court did not commit plain error in ordering a consecutive sentence to any future state or federal sentence.
Conviction and Remand
Obey was convicted of several counts related to possession and distribution of cocaine and sentenced to 540 months imprisonment. But the government then filed a motion to remand for a new trial, which was granted. On remand, Obey entered a guilty plea to cocaine aiding and abetting. The written plea agreement stated that Obey would waive his right to appeal and the government would recommend an eighteen-year term of imprisonment. At the sentencing hearing, the government did recommend this term and explained that it was the result of negotiations. However, the district court decided that the recommendation lacked merit and instead imposed the maximum sentence of 240 months imprisonment. The district court also directed the sentence to “run consecutive to any other State or Federal sentence, including any unimposed sentence he might receive for the pending state murder charge.”
Obey contended that the government breached the plea agreement and the prosecutor undermined the plea agreement by implying personal reservations about the sentencing recommendation. He further contended that the district court erred in ordering that his sentence run consecutively to any future “State or Federal sentence.” The Court reviewed both contentions under a plain error standard.
Prosecutor Fulfilled the Plea Agreement
The Court held that the prosecutor upheld the plea agreement because he repeatedly urged the district court to adopt the eighteen-year term of imprisonment. Even though the plea agreement did not require it, the prosecutor explained the term recommendation. Obey claimed that the prosecutor undermined the plea agreement by implying personal reservations about the sentencing recommendation and cited United States v. Brown and United States v. Grandinetti. However, the Court held that those cases did not apply because in Obey’s case the prosecutor did not criticize the terms of the agreement or express doubt about the propriety of the recommended sentence. He simply continued to recommend the eighteen-year term and explained that it was the result of plea negotiations.
No Plain Error In Ordering Consecutive Sentences
The Court then turned to the second argument. The district court relied on Setser v. United States, which held that a district court can impose a sentence consecutive to an anticipated state sentence. However, it did not address whether it could impose a sentence consecutive to an anticipated federal sentence. The Fourth Circuit had previously held in United States v. Smith that a district court lacked authority to order a sentence to run consecutive to any future sentence, but Setser abrogated that in reference to future State sentences. Therefore, the holding in Smith that a district court may not order a sentence consecutive to an anticipated federal sentence is still controlling precedent. The Court found that although the district court’s order was broader than authorized by Setser, it could not find that it was sufficient to meet the plain error standard. The Court had never previously addressed the issue and the holding in Smith was not so clear as to require reversal. Therefore, the district court did not plainly err.
Fourth Court Affirms the Lower Court
The Fourth Circuit affirmed the judgment of the district court. It held that the government did not breach its plea agreement and there was no plain error in recommending the sentence to run consecutive to any future State or Federal sentence.