Unpublished

Rehearing granted, June 16, 2009
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4568
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
YOLANDA CRAWLEY,
Defendant Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(1:07-cr-00066-JFM-2)
Submitted:
December 24, 2008
Decided:
March 30, 2009
Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jack B. Rubin, Flynn M. Owens, RUBIN & OWENS, P.A., Baltimore,

Maryland, for Appellant.
Rod J. Rosenstein, United States
Attorney, Kwame J. Manley, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yolanda
Crawley
pled
guilty
to
one
fraud, 18 U.S.C.A. 1343 (West Supp. 2008).

imposed
sentence
of
twenty-four
count
of
wire
The district court
months
imprisonment
and
ordered Crawley to make restitution in the amount of $200,000.

Crawley
appeals
the
judgment,
arguing
that
the
government
breached the plea agreement by not recommending a sentence at

the low end of the advisory guideline range as it was obligated
to do under the terms of the plea agreement.
government
failed
agreement.
We
to
fulfill
therefore
its
vacate
We agree that the
obligation
the
sentence
under
the
imposed
by
plea
the
district court and remand for resentencing before a different

judge.
Crawley
and
the
government
stipulated
that
she
had
knowingly and willfully worked with her son, Sean Green, and two
other
people
to
submit
mortgage
applications
and
documents
containing false information about her income and employment so

as to obtain loans to buy two properties in Florida, one worth
over
$1
million,
the
other
worth
$500,000.
The
government
stipulated that it would not oppose a two-level adjustment for

acceptance of responsibility, U.S. Sentencing Guidelines Manual
3E1.1 (2007), and that Crawley was eligible for an additional
one-level reduction under 3E1.1. 1
The government promised in
Paragraph 13 of the agreement that it would make a sentencing

recommendation
within
the
low
end
of
the
guideline
range
determined by the Court, but the agreement also provided that,

if
Crawley
breached
the
agreement,
the
government
would
be
released from its obligations under the agreement and free to

recommend any sentence that it considered appropriate.
The plea agreement provided that Crawley would breach
the agreement if she knowingly withheld information; gave false,
incomplete
or
misleading
testimony
or
information;
falsely
minimized the involvement of any person, including herself; or

failed
to
accept
personal
responsibility
for
her
conduct
by
failing to acknowledge her guilt to the probation officer who

prepares the Presentence Report.
was
prepared,
adjustment
for
the
probation
acceptance
When the presentence report
officer
of
recommended
responsibility,
two-level
stating
that
Crawley had admitted her involvement in the offense and accepted

responsibility for her actions, and noting that the government
had agreed to recommend an additional one-level reduction.
1
With
The district court may give a two-level reduction in

offense level if it determines that the defendant has accepted
responsibility for her offense.
USSG 3E1.1(a).
If the
defendant qualifies for a reduction under subsection (a) and the
government moves for an additional one-level reduction based on
the defendants timely notice of her intent to plead guilty, the
district court should grant it. USSG 3E1.1(b).
the
three-level
adjustment
offense level was 14.

I.
under
3E1.1,
the
recommended
Crawley was in criminal history category
The recommended advisory guideline range was 15-21 months.

Before
sentencing,
and
before
Crawley
filed
her
sentencing memorandum with the district court, the government

filed
sentencing
memorandum
in
which
it
agreed
with
the
guideline calculation in the presentence report, but stated that

it had given notice to Crawley that the district court might
depart upward based on her criminal conduct.
The government
also noted that, [t]he Court has expressed concern about the
nature of these crimes and their facilitation of drug-related
activities. 2
The government asserted that Crawleys son, Sean
Green, was a drug dealer, and that Crawley believed he was a

drug dealer when she committed the offense because Crawley knew
that
Green
had
no
legitimate
income
and
enjoyed
high-end
lifestyle of expensive homes, expensive cars, and hundred[s] of

thousands
Crawley
of
dollars
personally
in
cash.
received
over
The
government
$240,000
in
alleged
cash
that
from
an
individual [Green] she believed was involved in drug dealing.

She wired payments, wrote checks, and otherwise facilitated the
The court expressed this concern when sentencing Crawleys

co-defendants.
laundering of much of these funds.
The government concluded
with the following recommendation:

In short, the Government believes that a significant
sentence of jail time is appropriate.
The Court has
already expressed concerns as to why Crawley and
others in this case were not charged in a drug
conspiracy.
As always, the Court can incorporate its
evaluation of Crawleys criminal conduct in imposing
an upward departure under the advisory guidelines
and/or an upward variance under Section 3553 factors.
The
Government
believes
a
significant
term
of
incarceration is appropriate.
Crawley
memorandum
that
responded
she
had
by
no
asserting
direct
in
her
knowledge
own
that
written
Green
was
involved with drugs, and that she believed her son was proposing
a legitimate business venture when he asked her to help him buy
real estate using her good credit.
She stated that she believed
he had the money to make the mortgage payments legitimately.

She
denied
that
she
had
knowingly
helped
to
launder
drug
proceeds.
On the day before sentencing, the government submitted
a letter to the court disputing Crawleys assertions that she
did not know Green was involved with drugs in connection with
the
mortgage
fraud
and
that
she
believed
legitimate income to make the mortgage payments.

represented
that,
in
her
post-arrest
he
had
enough
The government
interview
with
law
enforcement officers, Crawley said she suspected that Green was

dealing drugs, and explained why she did.
The government stated
that it would not move for the additional one-level reduction

for acceptance of responsibility, and gave notice that it would
recommend a sentence of thirty months imprisonment.
At
the
sentencing
hearing,
the
court
noted
that
Crawley had not been charged with a drug crime, but expressed
concern
that
she
was
denying
any
knowledge
of
her
sons
involvement with drug dealing, despite her statements to the

agents after her arrest.
The government asked for a sentence of
thirty months, stating that it was released from its obligations

under
the
plea
agreement.
agreement
because
Crawley
breached
the
The court determined that Crawley had not accepted
responsibility
and
had
tried
to
conceal
knowledge about the mortgage fraud.

gave
had
Crawley
the
two-level
the
extent
of
her
Nevertheless, the court
adjustment
for
acceptance
responsibility recommended in the presentence report.
of
Crawleys
total offense level was thus 15 and her guideline range was
18-24
months.
The
court
imposed
sentence
of
twenty-four
months.
It
Governments
is
settled
breach
of
that
plea
defendant
agreement
bears
alleging
the
burden
the
of
establishing that breach by a preponderance of the evidence.

United
States
v.
Snow,
234
F.3d
187,
189
(4th
Cir.
2000).
However, when the defendant fails to raise the issue in the

district court, we review the issue for plain error.
6
United
States v. McQueen, 108 F.3d 64, 65-66 & n.1 (4th Cir. 1997)
(citing
United
States
v.
Fant,
1992)).
The
appellant
must
agreement
was
breached,
but
974
show
also
F.2d
not
that
559,
only
the
565
(4th
Cir.
that
the
plea
breach
was
so
obvious and substantial that failure to notice and correct it

affect[ed] the fairness, integrity or public reputation of the
judicial proceedings.
McQueen, 108 F.3d at 66 & n.4 (quoting
Fant, 974 F.2d at 565).
Crawley did not assert in the district
court
that
the
government
breached
her
plea
agreement.
Consequently, her claim is reviewed for plain error.

When a plea agreement rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such promise
must be fulfilled.
(1971).
Santobello v. New York, 404 U.S. 257, 262
As this court has stated, the interpretation of a plea
agreement
is
rooted
in
contract
law
receive the benefit of its bargain.

33
F.3d
412,
413
(4th
Cir.
1994)
and
each
party
should
United States v. Peglera,

(citing
United
States
v.
Ringling, 988 F.2d 504, 506 (4th Cir. 1993) (internal quotations
omitted)).
However,
because
defendants
fundamental
and
constitutional rights are implicated when he is induced to plead

guilty by reason of a plea agreement, this court analyzes a
breach
of
that
agreement
commercial contract.
with
greater
scrutiny
See McQueen, 108 F.3d at 66.

7
than
in
Here, it appears that the government first breached

the plea agreement in its memorandum of April 1, 2008, when it
advocated a significant sentence of jail time, and suggested
that the court might wish to depart upward, without mentioning
that it had agreed to recommend a sentence at the low end of the
guideline range.
At sentencing, the government again failed to
recommend a sentence at the low end of the guideline range as it

had promised to do.
The
government
argues
that
Crawley
breached
the
agreement by failing to accept responsibility and minimizing her

role in the criminal scheme, thus releasing the government from
its obligations under the agreement.
However, the government
cannot unilaterally declare itself released from its obligations

under a plea agreement because the defendant has breached the
agreement.
Only after a hearing and a judicial determination
that the defendant breached the agreement may the government be

released from the promises it made.
United States v. Guzman,
318 F.3d 1191, 1196 (10th Cir. 2003); United States v. Frazier,
213 F.3d 409, 419 (7th Cir. 2000); United States v. Simmons,
537 F.2d 1260, 1261-62 (4th Cir. 1976).
The government filed
its sentencing memorandum several weeks before Crawley filed her

own memorandum, apparently in reaction to comments made by the
judge in a related proceeding rather than anything Crawley had
done or said at that point. 3
The government never mentioned its
obligation to recommend a sentence at the low end of the range,

either
in
its
written
sentencing hearing.
submissions
to
the
court
or
at
the
While the government stated at sentencing
that Crawley had breached the agreement, and the court appeared
to
accept
this
explanation
for
the
governments
sentence
recommendation, the court made no determination that Crawley had

in
fact
breached
the
agreement,
the
basis
for
the
alleged
breach, or when the breach might have occurred.

Although it is not clear that the district court would
have imposed a different sentence if the government had kept its
promise, Crawley did not receive the benefit of her bargain.
Therefore, we are satisfied that she was prejudiced and that the
governments
breach
addressed
appeal.
on
constitutes
[A]
plain
government
error
that
that
lives
should
up
to
be
its
commitments is the essence of liberty under law, [and] the harm

generated by allowing the government to forego its plea bargain
Co-defendant David Lincolns sentencing hearing began on

March 20, 2008, and concluded on April 2, 2008.
Co-defendant
Rachel Donegan was sentenced on March 18, 2008. The government
filed
its
sentencing
memorandum
in
Crawleys
case
on
April 1, 2008. Crawley filed her sentencing memorandum on April
23, 2008, and was sentenced on April 24, 2008.
The government
replied to her memorandum in a letter to the court filed
April 24, 2008.
obligations is one which cannot be tolerated.
Peglera, 33 F.3d
at 414.
Accordingly,
we
vacate
the
judgment
and
case for resentencing before a different judge.
remand
the
We dispense
with oral argument because the facts and legal contentions are
adequately
presented
in
the
materials
before
the
court
and
argument would not aid the decisional process.
VACATED AND REMANDED
10

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Rehearing granted, June 16, 2009

UNITED STATES OF AMERICA,

December 24, 2008

March 30, 2009

Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Jack B. Rubin, Flynn M. Owens, RUBIN & OWENS, P.A., Baltimore,

Unpublished opinions are not binding precedent in this circuit.

fraud, 18 U.S.C.A. 1343 (West Supp. 2008).

The district court

ordered Crawley to make restitution in the amount of $200,000.

breached the plea agreement by not recommending a sentence at

We agree that the

district court and remand for resentencing before a different

containing false information about her income and employment so

stipulated that it would not oppose a two-level adjustment for

one-level reduction under 3E1.1. 1

The government promised in

Paragraph 13 of the agreement that it would make a sentencing

determined by the Court, but the agreement also provided that,

released from its obligations under the agreement and free to

minimized the involvement of any person, including herself; or

failing to acknowledge her guilt to the probation officer who

When the presentence report

Crawley had admitted her involvement in the offense and accepted

The district court may give a two-level reduction in

offense level was 14.

Crawley was in criminal history category

The recommended advisory guideline range was 15-21 months.

sentencing memorandum with the district court, the government

guideline calculation in the presentence report, but stated that

The government asserted that Crawleys son, Sean

Green, was a drug dealer, and that Crawley believed he was a

lifestyle of expensive homes, expensive cars, and hundred[s] of

individual [Green] she believed was involved in drug dealing.

The court expressed this concern when sentencing Crawleys

laundering of much of these funds.

The government concluded

with the following recommendation:

She stated that she believed

he had the money to make the mortgage payments legitimately.

legitimate income to make the mortgage payments.

enforcement officers, Crawley said she suspected that Green was

The government stated

that it would not move for the additional one-level reduction

involvement with drug dealing, despite her statements to the

The government asked for a sentence of

thirty months, stating that it was released from its obligations

The court determined that Crawley had not accepted

knowledge about the mortgage fraud.

Nevertheless, the court

responsibility recommended in the presentence report.

establishing that breach by a preponderance of the evidence.

However, when the defendant fails to raise the issue in the

obvious and substantial that failure to notice and correct it

McQueen, 108 F.3d at 66 & n.4 (quoting

Fant, 974 F.2d at 565).

Crawley did not assert in the district