Wake Forest Law Review
13Nov

Material Breach of Plea Agreement by Defendant Relieves the Government of its Obligations

Categories: 4th Cir. Blog
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By: Rolf Garcia-Gallont

Today, in United States v. King, the Fourth Circuit affirmed by unpublished per curiam opinion the sentences against Donnie King, Sr., (“Mr. King”) and Lou Wells King (“Mrs. King) for making materially false and fraudulent misrepresentations in relation to their Chapter 11 bankruptcy proceeding.

On appeal, the Kings contended that (1) the Government breached its plea agreements with the Kings by moving to be relieved of its obligations under the plea agreements; (2) the district court erred in permitting the Government to be relieved of its obligations under the plea agreements; (3) the Government committed prosecutorial misconduct by moving for relief from its obligations under the plea agreements; and (4) Mr. King’s sentence was unreasonable. Because the Kings did not raise these claims at trial, the Circuit Court reviewed for plain error.

Because the Kings Committed a Material Breach of the Plea Agreements, the Government Was Entitled to Move for Relief of its Obligations Under the Plea Agreement . Therefore, the Government’s Motion Was Neither a Breach of the Agreement nor Prosecutorial Misconduct.

The Kings were required by the plea agreements to abide by any conditions of release before their sentencing. One such condition was that the Kings abide by federal law. The Kings subsequently filed a false tax return in violation of federal law.

The Fourth Circuit held that as a matter of contract interpretation, this violation constituted a material breach of the plea agreements, and that the Government was entitled to move for relief of its own obligations. In light of the Kings’ material breach, the district court did not err in granting that relief. Additionally, because the Government was entitled to relief, moving to request it did not constitute prosecutorial misconduct.

Mr. King Waived His Right to Appeal the Reasonableness of His Sentence

As part of his plea agreement, Mr. King agreed to a broad waiver of his right to appeal. Because the record of Mr. King’s Rule 11 colloquy showed that Mr. King knowingly and intelligently agreed to the waiver, the Court held that the waiver was valid. Finally, the Court held that Mr. King’s attempt to appeal the reasonableness of his sentence was within the scope of his appeal waiver, and dismissed the appeal of his sentence.

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6Nov

Defendant Must Provide Restitution to Victim of Child Pornography

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By: Steven M. Franklin

Yesterday, in U.S. v. Borowski, the District Court for the Eastern District of North Carolina upheld a restitution order for a victim of child pornography pursuant to 18 U.S.C. §§ 3663 and 3663A.

Defendant Pleads Guilty to Child Pornography and Signs Appeal Waiver

The defendant, Matthew Paul Borowski, pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). Pursuant to his plea agreement, Mr. Borowski waived his right of appeal under 18 U.S.C. § 3742. However, he could nonetheless appeal if his sentence exceeded the advisory Guideline range, or if he claimed ineffective assistance of counsel or prosecutorial misconduct.  Mr. Borowski was sentenced below the advisory guidelines range to 174 months in prison, and ordered to provide $8000 in restitution to the victim.

Defendant Challenges Restitution Order in Light of Paroline v. United States

Courts enforce appeal waivers so long as the defendant knowingly and intelligently waived his right of appeal, and the issues raised on appeal fall within the scope of the agreement. Mr. Borowski admitted that he knowingly agreed to the appeal waiver, and he did not argue that the restitution order fell outside of the scope of the agreement. Instead, he appealed on the basis that, had he known the Supreme Court was going to hear Paroline v. U.S., he would have requested the restitution order to be excluded from the plea agreement.

Paroline Addresses Calculation of Restitution for Victims of Child Pornography

In Paroline, the Supreme Court determined that restitution orders for child pornography offenses must bear a causal relationship to the victim’s losses. Essentially, similar to when multiple defendants appear before the court and are found to have contributed to the loss of a victim, the court should analyze the proportion of the individual defendant’s contribution to the victim’s losses. Although there is no precise mathematical formula to determine such losses, courts may consider the number of other past defendants who contributed to the victims losses, reasonable predictions of the number of future offenders likely to be caught, and whether the defendant contributed to the actual creation of the images, among other factors.

Change in Law Does Not Effect Restitution Order

The 4th Circuit found Mr. Borowski’s argument unconvincing. A party cannot re-bargain its appeal waiver due to changes in the law, and a change in law does not render a valid plea agreement unenforceable. Thus, simply failing to expect a ruling regarding the calculation of restitution for victims of child pornography does not render Mr. Borowski’s waiver unenforceable.

The Fourth Circuit Dismisses

For these reasons, the 4th Circuit dismissed Mr. Borowski’s appeal, effectively upholding the District Court’s restitution order.

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14Oct

Defendant Appeals Court’s Sentencing Procedure After Entering a Plea Agreement

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By Taylor Ey

On Thursday, October 9, 2014, the Fourth Circuit rendered its decision in United States v. Bennett, an appeal from the District Court for the Middle District of North Carolina.  There were three issues on appeal: (1) whether the district court erred in accepting Defendant’s guilty plea, (2) whether the district court abused its discretion in issuing a sentence, and (3) whether trial counsel rendered ineffective assistance at sentencing.

Defendant Bennett accepted plea agreement, pleading guilty to conspiracy to distribute fifty grams or more of methamphetamine and to possess pseudophedrine knowing and having reasonable cause to believe it would be used to manufacture methamphetamine.  Bennett was sentenced to forty-five months’ imprisonment, after a reduction for substantial assistance to the Government.

The court reviewed the guilty plea issue for plain error because Defendant did not move to withdraw his guilty plea.  A defendant must demonstrate that a plain error has affected his substantial rights.  A defendant meets his burden by showing that there is reasonable certainty that he would not have pled guilty but for the district court’s Rule 11 omissions.  Because the transcript showed that the district court ensured that the plea was supported in fact, and that Defendant entered the plea voluntarily and knowingly, there was no plain error.

The court reviewed the sentencing issue for abuse of discretion.  Under Gall v. United States, the appellate court should consider both the procedural and substantive reasonableness of the sentence. The court first reviews procedural reasonableness, considering several factors, including the sentencing calculation, the opportunity to argue for an appropriate sentence, and the sentencing explanation.  If the sentence is procedurally reasonable, the court then reviews substantive reasonableness.  Proper calculation is presumptive on appeal that the sentence is substantively reasonable.  However, defendant may rebut the presumption if he shows that the sentence is unreasonable under the 18 U.S.C. § 3553(a) (2012) factors.  This court held that the district court did not abuse its discretion because it correctly calculated the sentence, heard argument from counsel, explained the sentence, and Defendant did not offer grounds for rebuttal.

On the third issue, the court concluded that the record did not “conclusively establish ineffectiveness of counsel,” thus Defendant must assert this claim in a motion pursuant to 28 U.S.C. § 2255 (2012).

The court affirmed.

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3Oct

Fourth Circuit Considers Alleged Breach of Plea Agreement

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By: Michael Klotz

Today, the Fourth Circuit Court of Appeals issued its decision in United States of America v. Boggs. In this case, Mr. Boggs appealed a 57-month sentence imposed pursuant to an agreement in which he plead guilty to wire fraud. The issue on appeal was whether the government breached the terms of the plea agreement by failing to move for an adjustment of the sentence. The agreement specified that the government would recommend a reduction of the sentence if Mr. Boggs complied with his obligations under the agreement and accepted responsibility for his conduct.

Prior to his sentencing, Mr. Boggs made a statement through his counsel to his probation officer that he “did not mean to commit a fraud.” At his sentencing, Mr. Boggs challenged the loss amount, but asserted that although he did not intend to defraud the victim, he was nonetheless guilty because he did not do what he was supposed to do with the money. Further, Mr. Boggs attempted to “distance[] himself from the statement he gave the probation officer.” The district court concluded that Mr. Boggs had not accepted responsibility for this conduct, and sentenced him to the maximum within the sentencing range of 46 to 57 months.

On appeal, Mr. Boggs argued that the government breached the plea agreement because he had accepted responsibility, and argued further that the “acceptance of responsibility” provision in the plea agreement was ambiguous. The Fourth Circuit observed that Mr. Boggs’ actions both prior to sentencing and at his sentencing hearing were “inconsistent with the acceptance of responsibility.” Further, the court noted that the interpretation of a plea agreement is a matter governed by contract law, and the “acceptance of responsibility” provision in the plea agreement was not ambiguous. Thus, the Fourth Circuit affirmed the district court ruling that the government did not breach the plea agreement.

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