United States of America v. Paul Pletcher

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 04-3367
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UNITED STATES OF AMERICA
v.
PAUL PLETCHER,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Crim. No. 04-cr-00095)
District Judge: Honorable Sylvia H. Rambo
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 8, 2005
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Before: ROTH, FUENTES and GARTH, Circuit Judges
(Opinion Filed: December 7, 2005)
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OPINION
Garth, Circuit Judge:
Paul Pletcher was charged with possession of a firearm by a previously convicted
felon in violation of 18 U.S.C. §922(g). He entered into a Plea Agreement which
included the following conditional promise: “if the defendant can adequately demonstrate

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[an] acceptance of responsibility to the government, the United States hereby moves that
at sentencing the defendant receive a three-level reduction in the defendant’s offense
level for acceptance of responsibility.”
After entering his plea of guilty, Pletcher was released pending sentencing on
several conditions, including that he not use any unlawful controlled substances unless
they were prescribed by a medical doctor. At a June 1, 2004 hearing before Magistrate
Judge J. Andrew Smyser, Pletcher admitted that he had violated this condition repeatedly.
Consequently, his bail was revoked and he was detained pending sentencing.
The Probation Office made the following recommendation in Pletcher’s
Presentence Report:
Mr. Pletcher . . . has repeatedly violated the conditions of
pretrial services supervision by using drugs. He tested
positive for marijuana use three times and cocaine once. The
defendant has not voluntarily terminated or withdrawn from
criminal conduct, and has not complied with his release
conditions. Mr. Pletcher’s illegal use of drugs is inconsistent
with acceptance of responsibility as contemplated by the
guidelines and a reduction pursuant to USSG §3E1.1 is
unwarranted.
At the sentencing proceeding on August 10, 2004, the prosecution echoed the
Presentence Report and recommended that District Judge Sylvia H. Rambo not apply the
three-level reduction referenced in the Plea Agreement because of Pletcher’s abuse of
drugs while he awaited sentencing. Judge Rambo did not apply the reduction, and
sentenced Pletcher to 92 months in prison and a fine of $800.

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Our review of this claim is plenary. United States v. Rivera, 357 F. 3d 290, 293-1
294 (3d Cir. 2004).
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Pletcher appealed his sentence. He argued that (1) the government breached the
Plea Agreement when it recommended that the Court deny him credit for acceptance of
responsibility, (2) Judge Rambo erred when she accepted that recommendation, and (3)
the Sentencing Guidelines were unconstitutional under Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
After briefing was complete on this appeal, the Supreme Court decided United
States v. Booker, 543 U.S. 200, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Pletcher
submitted a supplemental letter brief on March 14, 2005, arguing that because Judge
Rambo treated the Guidelines as mandatory when she sentenced him, Booker required
remand.
We hold that the government did not breach the Plea Agreement when it
recommended that the Court deny Pletcher credit for acceptance of responsibility. The1
government promised in the Plea Agreement to recommend that the Court give such
credit if Pletcher demonstrated acceptance of responsibility. When Pletcher violated the
terms of his release, he failed to fulfill this explicit condition to the government’s
satisfaction. The government’s recommendation that Pletcher be denied a reduction was
therefore not a breach of the Plea Agreement. The cases Pletcher cites in arguing to the
contrary are factually distinct and inapposite.

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We also find that Judge Rambo correctly interpreted USSG §3E1.1, and did not
clearly err, when she accepted the government’s recommendation – i.e., when she
determined that Pletcher’s violation of the terms of his release was inconsistent with any
genuine acceptance of responsibility, and thus that under USSG §3E1.1 Pletcher was not
entitled to a reduction. See, e.g., United States v. Ceccarani, 98 F. 3d 126 (3d Cir. 1996).
Despite these holdings, in accordance with Booker and with United States v.
Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), we will vacate Pletcher’s sentence and
remand for resentencing. In doing so, we reject the suggestion made by Pletcher that he
be resentenced by a different District Court judge.

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