By Mickey Herman
On Thursday, January 11, 2017, the Fourth Circuit issued a published opinion in United States v. Tate, a criminal case. Defendant-appellant, Brandon Tate, appealed his sentence, arguing that the government failed to comply with the plea agreement. After reviewing Tate’s claim for plain error, the Fourth Circuit affirmed the district court’s sentencing decision.
Facts & Procedural History
In a written plea agreement, Tate agreed to plead guilty to several drug-related offenses in exchange for the government “seek[ing] a sentence at the lowest end of the . . . ‘applicable guideline range.’” Tate also waived his right to appeal his conviction and sentence with two exceptions, neither of which are relevant on appeal. After establishing that Tate was competent to plead guilty and understood the term of his plea agreement, a magistrate judge prepared a presentence report (“PSR”) that established a guideline range of 57 to 71 months’ imprisonment. Objecting to the assignment of three criminal history points for his prior convictions, Tate argued that the range actually should have been 46 to 57 months’ imprisonment. At sentencing, the district court overruled Tate’s objection and adopted the PSR’s guideline range of 57 to 71 months. Upon the government’s recommendation, the district court sentenced Tate to 57 months’ imprisonment. Tate appealed, arguing that the government breached the plea agreement by not recommending a sentence of 46 months, the lowest end of his proposed range.
The Court first considered whether Tate’s appeal waiver barred this claim. Noting that appeal waivers are generally valid, the Court nonetheless emphasized that “[a] defendant’s waiver of appellate rights cannot foreclose an argument that the government breached its obligations under the plea agreement.” United States v. Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2006). Thus, the Court determined, Tate’s claim that the government breached the plea agreement is not barred by the waiver and must be considered.
Breach of Plea Agreement
The Fourth Circuit next turned to the issue presented: whether the government breached the plea agreement by recommending a sentence at the lowest end of the guideline range adopted by the district court. Noting that Tate did not raise the issue below, the Court reviewed his claim for plain error. Fed. R. Crim. P. 52(b). In framing its analysis, the Fourth Circuit asserted that plea agreements are contracts and must be analyzed as such. Thus, obligations created by a plea agreement must be determined in light of the document’s plain language, United States v. Jordan, 509 F.3d 191, 195 (4th Circ. 2007), and any ambiguities must be construed against the government.
The Court began its analysis by “assum[ing] arguendo that the lower guideline range proposed by Tate of 46 to 57 months was the correct guideline range.” Even in light of that assumption, the Fourth Circuit concluded that “‘applicable guideline range’ means the guideline range found by the district court, and that, therefore, the government’s sentencing recommendation complied with the plea agreement.”
The Court offered three justifications for so holding. First, because only the district court is tasked with determining the “applicable guideline range,” the “applicable guideline range” must be that which is adopted by the district court. Second, where a plea agreement merely references the sentencing guidelines but does not expressly condition the plea agreement on a correct sentence under the guidelines, no such condition exists. Third, Tate’s failure to demand that his proposed range be included in the plea agreement suggests that both parties anticipated the district court to determine the range.
Suggesting that Tate’s theory on appeal was nothing more than an attempt to circumvent his waiver of appeal by “covert[ing] [the] claim of sentencing error into a claim of breach by the government,” the Fourth Circuit affirmed, holding that the district court complied with the plea agreement by recommending a sentence on the lowest end of the guideline range adopted by the district court.