In a delightfully titled post
that gets the joke backwards,* Pigs get fed, hogs get slaughered [sic], Judge Richard Kopf poses the question that arose in the Third Circuit opinion in United States v. Erwin.
If you are a drug dealer with a Criminal History Category of I, and you cooperate, sign an appeal waiver, and then breach the appeal waiver because you are unhappy with the sentence of 188 months (151 to 188 months was the range after the cooperation departure motion) rather than somewhere at or below the statutory maximum of 240 months (without the statutory max., the range was 262 to 327 months) , what’s the worst that can happen? According to the Third Circuit, a defendant who breaches the plea agreement in such a situation will find his 188 month sentence vacated, and the case remanded for resentencing without the motion for departure!
For those who don’t appreciate the ramifications, allow me to explain. Christopher Erwin ran a large-scale oxycodone distribution ring in New Jersey, which the prosecution tagged the “Erwin Organization” because it always sounds most nefarious when you give it a cool name. Even though Erwin was the top dog, he decided that his best move was to flip out on his underlings, and the government was only too happy to oblige.
So Erwin became a rat, copped out and took down his own people. He executed a plea agreement that included a waiver of appeal. The government dressed him up in fancy ribbons and smeared him with lipstick, and he served his purpose. Then came Erwin’s day to be sentenced.
Most snitches think the love showered on them by the government when they need their information is sincere; at sentence, they get their 5k1.1 letter, detailing how they’re now the government’s bestest friend, and the sentencing judge commends their civic responsibility by imposing an ice cream party and a brief stay in Club Fed, followed by hugs and kisses as they return home to start all over again. Erwin got 188 months. For the math impaired, that’s 15 years, 8 months (because under §3553(a), 15 years, 7 months would have been inadequate).
Erwin was not amused. So he appealed his sentence to the Third Circuit. The Third Circuit was not amused either.
For the following reasons, we conclude that Erwin’s appeal is within the scope of his appellate waiver, to which he knowingly and voluntarily agreed, and that he has failed to raise any meritorious grounds for circumventing the waiver. We further conclude that Erwin breached the plea agreement by appealing, and that the appropriate remedy for his breach is specific performance of the agreement’s terms: that is, the Government will be excused from its obligation to move for a downward departure. We will therefore vacate Erwin’s judgment of sentence and remand for de novo resentencing in accordance with this opinion.
Erwin argued that he was told that if he did the dirty well enough in its eyes, the government might urge the sentencing judge for a five-level downward departure, with the necessary caveat that the judge, of course, could ignore the government and sentence as he deemed fit. This is how it’s always stated, but rats always hear, “just do what we tell you and you will get a red balloon.”
Under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), “when a plea 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.” Id. at 262. The Government in this case agreed to “move the sentencing judge,” pursuant to U.S.S.G. § 5K1.1, to depart from the otherwise applicable Guideline range if it determined in its sole discretion that Erwin provided substantial assistance. Supp.App. 47. The agreement cautioned that, “[w]hether the sentencing judge does in fact impose a sentence below the otherwise applicable guideline range is a matter committed solely to the discretion of the sentencing judge.” Id. Because the record is devoid of any indication that the Government promised it would specifically request a five-level downward departure, much less that the court would apply the departure to the statutory maximum, Erwin’s due process claim also fails.
There’s a reason why all those wiggle words are in there, kids. “Trust us” is not a commitment.
But the Circuit could have just dismissed the appeal due to the waiver. Or it could have affirmed the sentence of 188 months. But that’s not what it did. Rather, it smacked Erwin upside the head with reverse Santobello, holding that Erwin didn’t just lose the right to appeal from his waiver, but breached his contractual duty by appealing in violation of the waiver. The penalty imposed for his breach? He loses the benefit of the bargain in its entirety. He’s still guilty as sin, but his 5k1.1 letter gets ripped to shreds.
As a result, Erwin was remanded for resentencing without the benefit of his cooperation, facing a statutory maximum of 240 months (with a guidelines range of 262 to 327 months), suggesting that his likely outcome, in technical legal terms, is that he’s going to get whacked. All that snitching and he’s going down for the max. Crying rat tears, but still.
The decision by Erwin (and his lawyer) to pursue an appeal in the face of a waiver was a curious one, as there was no question but that he had waived his right to appeal, and his arguments to circumvent the waiver were, well, not strong. That said, the anticipation was likely that he couldn’t get hurt any worse for trying. What could happen? They dismiss the appeal? Nobody would have seen this coming.
By holding the appeal as a substantial breach of the plea agreement, sufficient to make all his snitching disappear, poof, as if there was no consideration paid by the rat giving up his mother, the Court went far beyond what was needed to teach Erwin a lesson. Erwin was already going to do his time, and that (plus his snitching) was more than sufficient to punish him for his conduct. The holding of breach based on exercising a right he had waived smacks of pure gratuitous meanness, the fact that nobody loves a rat no matter how much lipstick they put on him.
For the government, this may be a Pyrrhic victory, as lawyers will tell the story of Erwin to their clients considering cooperation, so that they realize there may be no ice cream party in their future. Some will decide not to sign on the dotted (it’s really not dotted, by the way) line.
On the other hand, as conceptually foolish and legally dubious as the Third Circuit’s decision may be, it couldn’t have happened to a nicer guy.
* As noted in the comments below, people with a more intimate relationship with pigs contend that I have projected my east coast swine ignorance into the joke. I defer to those with a deeper, more personal knowledge of pigs and hogs, though I will not relinquish my views on bacon.
One hog was harmed in the making of this post.