UNITED STATES OF AMERICA, vs. ROSE HAJAY BERNARD v. Rivera, 357 F.3d 290, 294 3d Cir. 2004 . We also exercise plenary review over the…

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
__________
No. 03-1378
__________
UNITED STATES OF AMERICA,
vs.
ROSE HAJAY BERNARD,
Appellant.
__________
ON APPEAL FROM THE DISTRICT
COURT OF THE VIRGIN ISLANDS
(D.C. No. 01-cr-00233-2)
District Judge: The Honorable
Thomas K. Moore
__________
ARGUED DECEMBER 10, 2003
BEFORE: NYGAARD, BECKER, and
STAPLETON, Circuit Judges.
(Filed: June 29, 2004)
Douglas J. Beevers, Esq. (Argued)
Office of Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
Charlotte Amalie
St. Thomas USVI, 00804
Counsel for Appellant
Anthony J. Jenkins, Esq. (Argued)
Office of United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie
St. Thomas USVI, 00802-6924
Counsel for Appellee
__________
OPINION OF THE COURT
__________
NYGAARD, Circuit Judge.
Rose Bernard pleaded guilty to
possession of a false identification
document under a plea agreement that
dropped much more serious drug charges.
She claims on appeal that the District
Court erred by using the sentencing
guidelines that she agreed should apply.
Guided by FED. R. CRIM. P. 11(c)(1)(C),
we will hold Bernard to her bargain and
affirm the District Court*s sentence.
I.
Rose Bernard is a Liberian citizen
with permanent resident status in the
United States. While going through
customs at the airport in St. Thomas, U.S.
Virgin Islands, she used a forged birth
certificate that indicated she was born in
New York, falsely declared on a customs
form that she was a U.S. citizen, and
attempted to take through the customs
checkpoint four liquor bottles filled with
more than five kilograms of liquid cocaine.
Bernard was arrested along with
two co-defendants, and indicted for
conspiracy to possess cocaine with intent
to distribute, conspiracy to import cocaine
into the United States, and four charges
related to using a fraudulent birth

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certificate and making a false customs
declaration.
On the fourth day of her trial, near
the conclusion of the government*s case,
she negotiated a plea agreement. Bernard
agreed to plead guilty to Court Five of the
indictm ent, possession of a f alse
identification document in violation of 18
U.S.C. § 1028(a)(4), (b)(1)(A)(ii) and
(b)(3)(A), and in excha nge, th e
government dropped all other charges.
Bernard also explicitly agreed to the
sentencing enhancement contained in 18
U.S.C. § 1028(b)(3)(A), which is
applicable when the offense is committed
to facilitate a drug trafficking crime. She
also agreed to be sentenced under the
guidelines that were applicable to the
dismissed drug charges.
A p p l y in g the drug -relate d
enhancement under § 1028(b)(3)(A)
increased Bernard*s maximum sentence
from 15 years to 20 years.1 Bernard was
ultimately sentenced to 46 months in
prison, a sentence at the bottom of the 46-
to-57-month range recommended by the
sentencing guidelines applicable under the
plea agreement.
Bernard now contends that the
District Court erred by applying U.S.S.G.
§ 2D1.1, a guideline for drug offenses, in
sentencing her for possession of a false
identification document. The District
Court applied that guideline using the
cross-reference in § 2L2.2(c), which
directs that if the “defendant used a
passport or visa in the commission or
attempted commission of a felony offense”
the Court should apply § 2X1.1, which in
turn directs the Court to use the guidelines
for the underlying felony offense. In
Bernard*s case, the underlying offense was
drug trafficking, the sentencing guidelines
for which are found in § 2D1.1.
Bernard argues that because she
used only a fraudulent birth certificate, and
not a “passport or visa” as required by §
2L2.2(c), the District Court erred by
applying this cross-reference. She also
contends that because the stipulation she
made in her plea agreement did not
specifically state that she had committed a
drug offense, it was insufficient to support
the guidelines for drug offenses.
We exercise plenary review over
the question of whether the terms of a plea
agreement have been violated. United
States v. Rivera, 357 F.3d 290, 294 (3d
Cir. 2004). We also exercise plenary
review over the interpretation of the
sentencing guidelines. United States v.
McKenzie, 193 F.3d 740, 742 (3d Cir.
1999). We review for plain error,
however, when a defendant did not object
to a purported error before the sentencing
court. United States v. Couch, 291 F.3d
251, 252-53 (3d Cir. 2002). To establish
1Bernard incorrectly states in her
brief that the effect of the enhancement
was to change the maximum sentence
from 1 year to 20. As the government
points out, that is clearly not the case,
since 18 U.S.C. § 1028(b)(1)(A)(ii)
provides for a 15-year maximum
sentence for possession of a forged birth
certificate.

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3
plain error, a defendant must prove that 1)
the court erred; 2) the error was obvious
under the law at the time of review; and 3)
the error affected the defendant*s
substantial rights. Johnson v. United
States, 520 U.S. 461, 467 (1997). If these
conditions are met, then we may exercise
our discretion to notice the error if it
“seriously affect[s] the fairness, integrity,
or pub lic repu tation o f judic ial
proceedings.” Id. (internal quotation marks
and citations omitted) (alteration in
original). Because we conclude that the
District Court did not err, we do not reach
the other prongs of the Johnson plain error
test.
II.
We need not, and do not, decide
whether the District Court would have
erred had it applied the cross-reference
under U.S.S.G. § 2L2.2(c) without the plea
agreement. That is not the issue here. In
the context of this case, the government
and the defense stipulated in the plea
agreement that the cross-reference should
apply. The sole issue before us on appeal
is whether the District Court had the
authority to accept this plea agreement,
which stipulates to a factor or sentence that
falls outside the sentencing guidelines
range, and absent the agreement, would
not apply.
Bernard entered her guilty plea
mid-trial, after the government had nearly
concluded its case against her and
presented, by her attorney*s own
admission, “very strong evidence” that
Bernard had been involved in a drug
conspiracy. S.A. at 29. In exchange for
Bernard*s agreement to certain sentencing
stipulations, the government*s attorney
agreed to drop the charges of drug
importation and trafficking, by far the
most serious charges in the indictment. It
is clear from the record that the
government would not have accepted the
plea without these sentencing stipulations.
The record of the plea hearing
demonstrates that Bernard*s attorney was
well aware of the “error” about which he
now complains. In fact, he raised the issue
before the Court, but wh en the
government’s attorney threatened to
remove the plea offer, he explicitly
stipulated to the application of § 2L2.2(c).
As the record indicates, this stipulation
was thoroughly discussed, and specifically
agreed to by Bernard.
Mr. Jenkins: [Deputy U.S.
Attorney]: And just to
further clarify, the cross-
reference referred to in the
plea agreement is United
S t a t e s S e n t e n c i n g
Guidelines 2L2.2(c), where
it speaks of a cross
reference. . . .
The Court: Alright. Do
you agree, Mr. Beevers?
Mr. Beevers [Bernard*s
Attorney]: Almost. My
position is it would be for
the Court to determine,
since the Guidelines don*t

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expressly say a birth
certificate, the guidelines
would only go up after
Attorney Jenkins would
make a motion for upward
departure to invoke that
rule.
And I would concede that he
has very strong evidence at
this point that the higher
enhancement – but that
would ultimately be your
d e c i s io n , w h e t h e r t o
enhance.
Mr. Jenkins: No, no, that*s
not the deal. The deal is that
you*re going to stipulate that
as pursuant to 2L2.2 . . . or
we don*t have a plea
agreement . . .We*re not
going to argue about that.
That*s going to be a
stipulation.
Mr. Beevers: In that case,
we are stipulating that the
higher Guideline would
apply, and –
The Court: What*s the net
effect?
Mr. Beevers: The net
effect would be that it
would be, sentencing would
be as – under the Guidelines
for drug trafficking offense
. . . . [T]he Guidelines
would be the same if she
had directly pled to the drug
trafficking offense. That*s
our understanding . . . [a]nd
I*ll waive any argument that
a specific motion would be
required if you, if you need
it, or I*ll actually make the
motion, if you need it.
The Court: Well, you*re
stipulating to it, as I
understand.
Mr. Beevers: Right.
The Court: Do you
understand all that, Ms.
Bernard, the net effect of
what that is? (Defendant
conferring with counsel.)
Defendant Bernard: Yes, sir.
The Court: In essence, it*s
what you initialed on
Paragraph 8 on the plea
application, although you*re
not pleading to a . . . drug
trafficking offense, the

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sentencing can be calculated
in accordance, as if you had.
Do you understand that?
Defendant Bernard: Yes, sir.
S.A. 29-31.
On this record, there is no reason to
doubt that the agreement to apply the §
2L2.2(c) cross-reference was a tactical
decision that was designed to, and in fact
did, benefit Bernard significantly. As a
result of the agreement, the government
dropped two drug charges that would have
each carried mandatory minimum
sentences of five years, in exchange for a
plea to a far less serious crime without a
mandatory minimum sentence.2
Bernard incorrectly characterizes
the issue in this case as a “failure to object
to the pre-sentence report” and argues that
she “was not trying to receive an
unlawfully high sentence.” Appellant*s
Reply Br. at 8. What Bernard was trying
to do is clear – reach a compromise that
would result in a lower sentence than if
she were convicted on all counts, would
reflect a less-serious conviction on her
criminal history, and would leave open the
possibility of avoiding deportation.3 In
exchange for these benefits, and as part of
the plea agreement, she stipulated to the
applicability of U.S.S.G. § 2L2.2(c). To
now ignore that stipulation and not apply §
2L2.2(c) would contravene the clear intent
of both parties in entering into the plea
agreement.
III.
Having concluded that the
agreement that § 2L2.2(c) would be
applied is binding, we must determine
whether the District Court could use the
stipulated guideline for sentencing.
Federal Rule of Criminal Procedure
11 regulates plea agreements, and
establishes that in return for a guilty plea,
a government attorney may agree to
dismiss other charges, make sentencing
recommendations, or “agree that a specific
sentence or sentencing range is the
appropriate disposition of the case, or that
a particular provision of the Sentencing
Guidelines, or policy statement, or
sentencing factor does or does not apply.”
2It is worth noting that Bernard
was ultimately sentenced to fewer than
five years.
3During the sentencing hearing,
Bernard*s attorney emphasized the
importance of the immigration
consequences of the conviction to his
client. He explained that she had not
lived in her native Liberia since she was
five years old, and that the prospect of
avoiding deportation was the motivating
force behind the structure of the plea
agreement. In fact, because of the fear of
deportation, Bernard had halted her
initial cooperation with police, and
therefore forfeited the possibility of a
significant downward departure for
providing substantial assistance to the
prosecution. S.A. at 59-60.

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FED. R. CRIM. P. 11(c)(1)(C).4 The rule
f u r t h e r p r o v i d e s t h a t “s u c h a
recommendation or request binds the court
once the court accepts the plea
agreement.” Id.5 If the District Court does
not accept the sentencing agreement, then
under Rule 11(c)(5)(B), the defendant
must be allowed to withdraw her guilty
plea.
This Rule disposes of the case,6
requiring us to hold that a sentencing court
has the authority to accept a plea
agreement stipulating to a sentencing
factor or a provision of the sentencing
guidelines that otherwise would not apply,
or specifying a sentence that falls outside
the applicable guidelines range. Once the
District Court has accepted such an
agreement, it is binding.
This issue does not often come up
on appellate review, apparently because
the parties are unlikely to appeal the
consequences of a plea agreement to
which they both consented, and because
the law restricts appeals from agreed-upon
4This version of Rule 11, amended
in 1999, was applicable at the time of
Bernard*s plea and sentence.
5Rule 11(c)(1) contemplates three
possible types of plea agreements, two of
which – found in subsections (B) and (C)
– involve an agreement with respect to
the applicability of a particular provision
of the sentencing guidelines. It is clear
that the government and Bernard entered
into a Rule 11(c)(1)(C), as opposed to
Rule 11(c)(1)(B), plea agreement. Under
Rule 11(c)(1)(B), a government attorney
may “recommend, or agree not to oppose
the defendant*s request, that a particular
sentence or sentencing range is
appropriate or that a particular provision
of the Sentencing Guidelines, or policy
statement, or sentencing factor does or
does not apply.” Id. However, unlike a
Rule 11(c)(1)(C) agreement, a Rule
11(c)(1)(B) agreement “does not bind the
court.” FED. R. CRIM. P. 11(c)(1)(B).
The record makes clear that the
parties did not agree that the government
would merely recommend application of
the cross-reference provision in U.S.S.G.
§ 2L2.2(c) under FED. R. CRIM. P.
11(c)(1)(B), but instead, as noted above,
agreed to enter into a binding agreement
whereby Bernard would be sentenced
under the cross-reference provision.
Accordingly, we write in the context of a
Rule 11(c)(1)(C) plea agreement, which,
as we have noted, is binding upon a
District Court once accepted.
6Even prior to the current
amendment to Rule 11, we had
interpreted Rule 11 to allow plea
agreements that bargain for departures
from the sentencing guidelines. United
States v. Gilchrist, 130 F.3d 1131, 1134
(3d Cir. 1997). In Gilchrist, we
established that once the District Court
accepts a plea that is conditioned upon an
agreement on sentence, that plea
agreement “binds the district court
notwithstanding departures from the
applicable guidelines.” Id. at 1134.

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sentences. See 18 U.S.C. § 3742(c). The
best discussion of the issue is found in
United States v. Goodall, 236 F.3d 700,
703-05 (D.C. Cir. 2001). We agree with
the Goodall Court*s conclusion that Rule
11 “plainly countenances agreed-upon
sentences falling outside of the otherwise
applicable Guidelines range.” Goodall,
236 F.3d at 705. In allowing the parties to
agree on a specific sentence, or that
particular provisions of the guidelines do
or do not apply, the Rule clearly
contemplates agreements on sentences that
could not be reached by directly applying
the guidelines. FED R. CRIM. P.
11(c)(1)(C). The Rule further provides
that once a plea agreement with a
sentencing stipulation is reached between
the parties and accepted by the Court, it
must be enforced at sentencing. Id.
We also agree with the conclusion
of Judge Randolph, concurring in Goodall.
Judge Randolph noted that this portion of
Rule 11 seems to be in tension with
provisions that make the sentencing
guidelines binding on the federal courts.
See Goodall, 236 F.3d at 706 (Randolph, J.
concurring). In particular, the federal
sentencing statute provides that a
sentencing court “shall impose a sentence
of the kind, and within the range [set by
the sentencing guidelines] unless the court
finds that there exists an aggravating or
mitigating circumstance of a kind, or to a
degree, not adequately taken into
consideration by the S enten cin g
Commission in formulating the guidelines
that should result in a sentence different
from the one described.” 18 U.S.C. §
3553(b) (emphasis added). The policy
statements that accompany the sentencing
guidelines restate this rule, directing that a
court may only accept a plea agreement
mandating a particular sentence if the
agreed sentence “is within the applicable
guideline range” or it “departs from the
applicable guideline range for justifiable
reasons.” U.S.S.G. § 6B1.2(c). Thus, there
is no doubt that “the Guidelines bind
judges and courts in the exercise of their
uncontested responsibility to pass sentence
in criminal cases.” Stinson v. United
States, 508 U.S. 36, 42 (1993) (quoting
Mistretta v. United States, 488 U.S. 361,
391 (1989)).
Because Rule 11 and the sentencing
guidelines present such a conflict, we must
decide which of them will prevail. See
Goodall, 236 F.3d at 706-08 (Randolph, J.,
concurring) (providing a thorough
discussion of this conflict). The
supersession clause applicable to Rule 11
furnishes the answer, directing that “laws
in conflict with such rules shall be of no
further force or effect after such rules have
taken effect.” 28 U.S.C. § 2072(b). The
relevant portion of Rule 11(c) was added
in 1999, after the last substantive change
to the relevant language in 18 U.S.C. §
3553. As a result, we conclude, as did
Judge Randolph in Goodall, that the
provisions of Rule 11(c) take precedence,
and that a sentencing court may accept
plea agreements in which the parties
stipulate to sentences, or sentencing
factors, that would otherwise contravene
the sentencing guidelines. Goodall, 236
F.3d at 708 (Randolph, J., concurring).
It is axiomatic under Rule 11 that

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once a court accepts such an agreement, it
must be en force d at sen tencing.
Therefore, we will affirm the District
Court*s application of the U.S.S.G. §
2L2.2(c) cross-reference to Bernard*s
sentence. Regardless of whether the cross-
reference would have been properly
applied in the absence of the plea
agreement, the District Court was under an
obligation to apply the provision after
accepting the terms of Bernard*s plea. To
hold otherwise would be inequitable
because it would allow Bernard to get the
benefits of her plea bargain, while evading
the costs. Moreover,”[p]lea agreements
are contractual and therefore are to be
analyzed under contract law standards,”
Gilchrist, 130 F.3d at 1134, and contract
law would not support such a result.7
IV.
Finally, Bernard contends that the
District Court violated an additional
sentencing guidelines provision addressing
circumstances under which a court may
utilize, pursuant to a plea agreement, a
sentencing guideline other than the one
applicable to the offense of conviction.
The sentencing guidelines “describe a
nine-step process by which to arrive at a
sentencing range.” Watterson v. United
States, 219 F.3d 232, 235 (3d Cir. 2000).
Under the first step of that process,
according to U.S.S.G. § 1B1.1(a), the
District Court “first selects the offense
guideline section applicable to the offense
of conviction.” Watterson, 219 F.3d at
235. In doing so, the guidelines instruct a
district court to
[d]etermine the offense
guideline section in Chapter
Two (Offense Conduct)
applicable to the offense of
conviction (i.e., the offense
conduct charged in the
count of the indictment or
information of which the
defendant was convicted).
7We note that even if we agreed
with Bernard*s argument, we could not
grant the relief she requests. If the
provisions of a plea agreement are
accepted by a court, but later found to be
invalid, the proper remedy is not to
impose a sentence in violation of the plea
agreement, but to allow the defendant to
withdraw the guilty plea and either
negotiate a new agreement, or proceed to
trial. See United States v. Barnes, 83
F.3d 934, 941 (7th Cir. 1996) (“If we
rule that some provision of the plea
agreement is invalid, we must discard the
entire agreement and require [the
defendant] and the government to begin
their bargaining over again.”); Mukai, 26
F.3d at 956 (“[I]f the court later finds the
disposition in the plea agreement
objectionable it should not reduce the
sentence unilaterally in such cases, but
rather should withdraw its acceptance of
the plea agreement”) (internal quotation
marks and citation omitted); see also
Gilchrist, 130 F.3d at 1134 (holding that
if a plea agreement is breached, the
district court may either grant specific
performance or allow the defendant to
withdraw the plea).

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However, in the case of a
plea agreement (written or
made orally on the record)
containing a stipulation that
specifically establishes a
more serious offense than
the offense of conviction,
determine the offense
guideline section in Chapter
Two applicable to the
stipulated offense.
U.S.S.G. § 1B1.2(a).
Ordinarily, under U.S.S.G. § 1B1
.2(a), a defendant is to be sentenced
according to the guideline “applicable to
the offense of the conviction,” id., which
in this case would be, inter alia, U.S.S.G.
§ 2L2.2. However, “[i]n a case in which
the elements of an offense more serious
than the offense of conviction are
established by a plea agreement,” U.S.S.G.
§ 1B1.2(a) provides a “limited exception”
to that rule, and requires that “the
guideline section applicable to the
stipulated offense is to be used.” U.S.S.G.
§ 1B1.2, app. note 1.
While U.S.S.G. § 2L2.2 applies to
Bernard because of her conviction under
18 U.S.C. § 1028, she argues that the
cross-reference in this provision, requiring
the District Court to apply, in this case, the
drug trafficking guideline found at
U.S.S.G. § 2D1.1, did not apply because
U.S.S.G. § 2L2.2(c)*s “passport or visa”
requirement was not met. Therefore, she
contends, the District Court could only
have applied the drug trafficking guideline
by way of the limited exception found in
U.S.S.G. § 1B1.2(a).8 She then argues
8Bernard actually cites to U.S.S.G.
§ 1B1.2(c), which contains language
similar to § 1B1.2(a) but applies to
situations where a defendant has
“stipulat[ed] to the commission of
additional offense(s).” U.S.S.G. §
1B1.2, app. note 3 (emphasis added). As
Application Note 3 to U.S.S.G. § 1B1.2
explains, however, U.S.S.G. § 1B1.2(c)
applies to situations where the defendant
has stipulated to facts that establish the
commission of additional offenses, and
requires that under such circumstances
the guidelines are to be
applied as if the defendant
had been convicted of an
additional count for each of
the offenses stipulated. For
example, if the defendant is
convicted of one count of
robbery but, as part of a
plea agreement, admits to
having committed two
additional robberies, the
guidelines are to be applied
as if the defendant had
been convicted of three
counts of robbery.
U.S. S .G. § 1B1.2, app. note 3. No
“additional” offenses of conviction are at
issue in this case (e.g., an additional
instance of possession of a fraudulent
document). Instead, Bernard*s argument
is based upon U.S.S.G. § 1B1.2(a),
which provides for imposition of a
guideline other than the one applicable to
the offense of conviction where “the
elements of an offense [such as drug

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that this exception would not apply to her
because she did not stipulate to any facts
that would establish the elements of any
offense for which the drug trafficking
guideline, U.S.S.G. § 2D1.1, would apply.
See U.S.S.G. § 1B1.2, app. note 1
(explaining that U.S.S.G. § 1B1.2(a)
applies “[i]n a case in which the elements
of an offense more serious than the offense
of conviction are established by a plea
agreement”) (emphasis added); Braxton v.
United States, 500 U.S. 344, 349-50
(1991) (applying an earlier version of
U.S.S.G. § 1B1.2 and looking to see
whether a defendant had stipulated to facts
that “specifically established” the elements
of the offense the District Court sought to
sentence the defendant under); see also
United States v. Nathan, 188 F.3d 190, 201
(3d Cir. 1999) (“the text of section
1B1.2(a) . . . indicates that a statement is a
‘stipulation* only if: (i) it is part of a
defendant*s written plea agreement; (ii) it
is explicitly annexed thereto; or (iii) both
the government and the defendant
explicitly agree at a factual basis hearing
that the facts being put on the record are
stipulations that might subject a defendant
to the provisions of section 1B1.2(a)”).
As indicated above, we have not
addressed the “passport or visa” argument
because of our holding that a FED. R.
CRIM. P. 11(c)(1)(C) agreement indicating
that a specific sentencing guideline does or
does not apply is, once accepted, binding
upon the District Court. For the same
reason, we have no occasion to address
whether Bernard*s plea agreement is
sufficiently specific to warrant a sentence
under U.S.S.G. § 1B1.2(a) based on a
guideline other than the one applicable to
the offense of conviction. It necessarily
follows from our conclusion in Section III
that, under FED. R. CRIM. P. 11(c)(1)(C),
Bernard*s agreement to be sentenced under
the cross-reference provision of U.S.S.G.
§ 2L2.2(c) is alone sufficient to validate
her sentence.
V.
In sum and for the reasons detailed
above, we will affirm the judgment.
______________
trafficking] more serious than the offense
of conviction [such as possession of a
false identification document] are
established by a plea agreement.”
U.S.S.G. § 1B1.2, app. note 1.

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