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    United States v. Jhon Echeverry Trujillo, 920 F.2d 202, 3rd Cir. (1990)

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    This document is an appeals court opinion regarding a defendant who pled guilty to drug possession charges. The government had stipulated that the defendant accepted responsibility, but later objected prior to sentencing. The appeals court found that the government could withdraw from the stipulation only by meeting the terms of a proviso allowing it, but the district court did not make a finding on whether the proviso was met. The appeals court vacated the sentence and remanded for the district court to determine if the government properly invoked the proviso to withdraw from the stipulation.

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    United States v. Jhon Echeverry Trujillo, 920 F.2d 202, 3rd Cir. (1990)

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    Scribd Government Docs
    55 views5 pages
    This document is an appeals court opinion regarding a defendant who pled guilty to drug possession charges. The government had stipulated that the defendant accepted responsibility, but later objected prior to sentencing. The appeals court found that the government could withdraw from the stipulation only by meeting the terms of a proviso allowing it, but the district court did not make a finding on whether the proviso was met. The appeals court vacated the sentence and remanded for the district court to determine if the government properly invoked the proviso to withdraw from the stipulation.

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    Filed: 1990-12-05 Precedential Status: Precedential Citations: 920 F.2d 202 Docket: 90-5245

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    This document is an appeals court opinion regarding a defendant who pled guilty to drug possession charges. The government had stipulated that the defendant accepted responsibility, but later objected prior to sentencing. The appeals court found that the government could withdraw from the stipulation only by meeting the terms of a proviso allowing it, but the district court did not make a finding on whether the proviso was met. The appeals court vacated the sentence and remanded for the district court to determine if the government properly invoked the proviso to withdraw from the stipulation.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    55 views5 pages

    United States v. Jhon Echeverry Trujillo, 920 F.2d 202, 3rd Cir. (1990)

    Uploaded by

    Scribd Government Docs
    This document is an appeals court opinion regarding a defendant who pled guilty to drug possession charges. The government had stipulated that the defendant accepted responsibility, but later objected prior to sentencing. The appeals court found that the government could withdraw from the stipulation only by meeting the terms of a proviso allowing it, but the district court did not make a finding on whether the proviso was met. The appeals court vacated the sentence and remanded for the district court to determine if the government properly invoked the proviso to withdraw from the stipulation.

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    of 5

    920 F.

    2d 202

    UNITED STATES of America


    v.
    Jhon Echeverry TRUJILLO, Appellant.
    No. 90-5245.

    United States Court of Appeals,


    Third Circuit.
    Submitted Under Third Circuit Rule 12(6),
    Nov. 9, 1990.
    Decided Dec. 5, 1990.

    Joel J. Reinfeld, Law Offices of Joel J. Reinfeld, Ridgewood, N.J., for


    appellant.
    Michael Chertoff, U.S. Atty., Edna B. Axelrod, Glenn J. Moramarco, Asst.
    U.S. Attys., Newark, N.J., for appellee.
    Before SLOVITER, SCIRICA and SEITZ, Circuit Judges.OPINION OF
    THE COURT
    SEITZ, Circuit Judge.

    This is an appeal from the sentence imposed by the district court. This court has
    jurisdiction under 28 U.S.C. Sec. 1291 (1988) and 18 U.S.C. Sec. 3742(a)
    (1988).

    FACTS
    2

    Defendant was indicted on two charges relating to the sale of cocaine to an


    undercover agent. He thereafter entered into a plea bargain with the
    government. He pled guilty to a charge of possession with intent to distribute
    just under five kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a)(1)
    (1988). In return the government dropped a conspiracy charge.
    In the plea agreement, dated November 22, 1989, the government agreed to

    stipulate at sentencing that defendant "clearly demonstrated a recognition and


    affirmative acceptance of personal responsibility for the offense charged." The
    stipulation was "subject to the proviso that, if this Office obtains or receives
    additional evidence or information prior to sentencing that it determines to be
    credible and materially in conflict with [the] stipulation ... the United States
    shall no longer be bound by [the] stipulation." The agreement further provided
    that "[a]ny determination that a stipulation is not binding shall not release the
    [parties] from any other portion of this Agreement."

    At the November 27, 1989, plea hearing some difficulty arose in establishing
    sufficient grounds for the plea. Defendant claimed not to know that the bag he
    carried contained cocaine. He testified that he suspected the existence of drugs,
    but did not know for sure until the bag was opened. He stated that he removed
    the packages of cocaine and handed them to the undercover officer. After
    testimonial clarification by defendant, the court accepted the plea. Neither the
    court nor the parties raised any issue as to defendant's acceptance of
    responsibility.

    Thereafter a presentence report was prepared by a probation officer and sent to


    defendant and the government. It suggested a two-level reduction for
    acceptance of responsibility, resulting in an offense level of twenty-eight.1
    Based on defendant's criminal history category, the sentencing range for a level
    of twenty-eight is 78-97 months.

    The report states that during his interview with the probation officer defendant
    "openly admitted his guilt to this offense and accepted responsibility for his
    misconduct." The report goes on to state, however, that defendant said that it
    was a codefendant who removed the bag containing the drugs from the car, that
    he agreed to deliver the case for the codefendant in return for payment, and that
    he was not aware that the case contained cocaine until it was opened.

    In a letter directed to the district court, defendant's counsel outlined defendant's


    role in the offense, substantially repeating the story provided to the probation
    officer. The letter also requested a reduction in offense level for minor
    participant status. The district court's denial of this reduction is not at issue in
    this appeal.

    Ten days prior to sentencing the government sent the probation officer a written
    objection to the initial presentence report, with a copy to defense counsel. It
    objected to the two-level reduction, asserting that despite evidence of
    defendant's central role in the crime, he denied responsibility.2 The government

    argued that defendant's minimization of his role, evidenced by his statements to


    the probation officer referred to in the presentence report, showed a denial of
    acceptance of responsibility.3
    9

    A few minutes prior to the sentencing hearing on March 12, 1990, defense
    counsel was delivered an amended presentence report. The amended report is
    substantially identical to the first except that it recommends that defendant not
    be granted the two-level reduction for acceptance of responsibility. The report
    recites the same version of events as was provided by defendant in the first
    report, but concludes that "the defendant denied any knowledge of or
    participation in, a conspiracy or distribution of narcotics."

    10

    While expressing surprise at the late change in the report, counsel did not object
    to proceeding with the sentencing hearing. He did, however, oppose the
    government's change of position on the issue of acceptance of responsibility:

    11 problem was that initially there was a stipulation, and I realize your Honor can
    The
    look behind that stipulation, that the Government and the defendant stipulated that
    there was affirmative acceptance of responsibility....
    ....
    12
    13

    At the time of the stipulation, we knew what the factual bases was [sic]. When
    we stood up here, we had problems making it a factual basis. We had your
    Honor accept the plea whereby he said he came up to the room, I fully realized
    what I was into when I opened the door; yes, I actively was involved in the
    transaction at that point.

    14

    They [the government] knew it then, they knew it at the time of the plea, they
    knew it when they stipulated this to be affirmative acceptance of responsibility.

    15

    It is unfair, and I don't mean last minute, but after the plea is all through and up
    to sentence time, By the way, we want to back out of this and we want to deny
    you the two points.

    16

    I just want to note my objection procedurally for the record.

    17

    The court concluded that defendant "did not fully accept responsibility," and
    thus did not award the reduction. Based on the guilty plea, however, the court
    sentenced him to 97 months, the lowest possible sentence for an offense level
    of thirty. The court made no finding as to whether the government remained

    bound by its stipulation. In fairness to the district court, it is not clear to us that
    the government even called the proviso in the stipulation to the district court's
    attention.
    18

    Sentence was imposed March 13, 1990, and defendant filed a timely notice of
    appeal.

    DISCUSSION
    19

    Defendant argues that the government's failure to abide by its stipulation


    constituted a breach of its plea agreement. He seeks a judgment permitting him
    to withdraw his plea or, alternatively, vacating his sentence.

    20

    At the outset we find this appeal difficult to resolve because the focus in the
    district court was not on the proviso in the stipulation. Obviously, however, the
    government could withdraw from the stipulation only upon a showing that
    would trigger the proviso. Yet, the district court made no finding as to whether
    in fact the government's showing released it from the terms of the stipulation
    covering acceptance of responsibility.

    21

    Despite the trial record, we believe the issue is whether the government carried
    its factual burden under the proviso. If it did not, it was not entitled, under the
    plea bargain, to challenge the stipulation in the sentencing proceedings. But that
    issue was not resolved in the district court. We think defendant was entitled to
    have the district court decide whether the government carried its burden.

    22

    The court appreciates that the district court, in sentencing, was not bound by the
    government's stipulation as to acceptance of responsibility. But that is not the
    issue. The issue is whether the government kept its bargain.

    23

    We conclude that the issue of the government's right to invoke the proviso
    raised a factual issue for resolution by the district court before imposing
    sentence. Assuredly, it was not an issue for ex parte resolution by the
    government.

    24

    While we decline to set aside the plea, we will vacate the sentence so that an
    appropriate hearing can be held to determine whether the government carried
    its burden of invoking the proviso. It will then be for the district court to
    resolve the issue and sentence appropriately.

    Federal Sentencing Guidelines Sec. 3E1.1 provides for a two-level reduction in


    offense level if "the defendant clearly demonstrates a recognition and
    affirmative acceptance of personal responsibility for his criminal conduct."

    The government's evidence of defendant's central role was based on statements


    of two codefendants made soon after the events

    On appeal the government argues that in addition to the probation officer's


    interview, it also relied on defense counsel's letter to the district court in
    arguing that defendant did not accept responsibility. The government's
    objection letter made reference only to the probation officer's interview,
    however

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