United States of America v. Isaac Rivera

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 02-3067
UNITED STATES OF AMERICA
v.
ISAAC RIVERA,
Appellant
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE DISTRICT OF
NEW JERSEY
District Court Judge:
Honorable Jerome B. Simandle
(D.C. No. Cr. 01-373-05)
Argued: December 4, 2003
Before: SLOVITER and ALITO, Circuit
Judges, and OBERDORFER,* District
Judge.
(Opinion Filed: February 9, 2004)
Counsel for Appellant
Clayton A. Sweeney, Jr. (Argued)
P.O. Box 55441
Philadelphia, PA 19127-5441
Counsel for Appellee
Christopher J. Christie
United States Attorney
George S. Leone
Chief, Appeals Division
970 Broad Street, Room 700
Newark, N.J. 07102-2535
Norman Gross (Argued)
Assistant United States
Attorney
United States Courthouse
401 Market Street, Fourth Floor
Camden, N.J. 08101-2098
OPINION OF THE COURT
OBERDORFER, Senior District Judge:
Isaac Rivera appeals from his
sentence after he pled guilty pursuant to
a plea agreement with the United States.
For the reasons stated below, we hold
that the government breached that
agreement and vacate the sentence. We
then follow the well-established
procedure of remanding to the district
court for resentencing.
* The Honorable Louis F.
Oberdorfer, Senior District Judge for the
District of Columbia, sitting by
designation.

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I.
From approximately June 2000
until on or about June 5, 2001, Rivera1
led a drug trafficking conspiracy that
imported kilogram-quantities of cocaine
powder from his suppliers in Puerto
Rico, converted some of that powder into
cocaine base, and distributed the cocaine
and cocaine base in Camden, New
Jersey. On October 9, 2001, a federal
grand jury returned a two-count
indictment against Rivera. Count One
charged him with conspiracy to distribute
and to possess with intent to distribute
more than 50 grams of cocaine base and
more than five kilograms of cocaine
powder in violation of 21 U.S.C. § 846.
Count Two charged possession with
intent to distribute more than 500 grams
of cocaine in violation of 21 U.S.C. §
841(a)(1). On November 7, 2001, Rivera
and the United States entered into an
agreement which provided, among other
things, that Rivera would plead guilty to
Count One of the indictment and the
United States would dismiss Count Two.
The dispute on appeal focuses on
the provisions of the plea agreement
addressing sentencing, in particular a
section titled “Stipulations.” App. at
60(a). That section stated that the United
States and Rivera “agree to stipulate at
sentencing to the statements set forth in
attached Schedule A.” Id. Schedule A,
in turn, provided in its first sentence that
the United States and Rivera “agree to
stipulate at sentencing to the statements
set forth below, subject to the conditions
in the attached plea agreement.” Id. at
64(a). Schedule A also stated that the
base Offense Level was 38. By way of
adjustment, however, Rivera would
receive a two-level Offense Level
reduction if his “acceptance of
responsibility continue[d] through
sentencing.” Id. He was to receive an
additional one-level decrease if the
Offense Level set by the district court
was 16 or greater. Id. Section 5, the
provision focused on by the parties on
appeal, stated, “In accordance with the
above, the applicable guidelines total
offense level is 35.” Id. (emphasis
supplied).
The plea agreement also stated
some conditions: that the “sentence to be
imposed upon Isaac [Rivera] is within
the sole discretion of the sentencing
judge” and that the government “cannot
and does not make any representation or
promise as to what guideline will be
found applicable . . . or what sentence
Isaac [Rivera] will ultimately receive.”
App. at 59(a). The plea agreement
further stated that “[e]xcept as otherwise
1 The underlying criminal
indictment named Rivera as Isaac Burgos
a/k/a Isaac Bonilla a/k/a Isaac Rivera. At
the change of plea hearing, by the
consent of both parties, the district court
granted a motion to deem changed all
pleadings and documents to reflect that
the defendant (now appellant)’s true
name is Isaac Rivera, with Burgos and
Bonilla listed as aliases.

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provided in this agreement, [the United
States] reserves its right to take any
position with respect to the appropriate
sentence to be imposed on [Rivera] by
the sentencing judge.” Id. at 59(a)-60(a).
On February 10, 2002, the United
States Probation Office advised the
prosecution, Rivera, and the court that
Rivera’s leadership “role in the
conspiracy warrants a four level increase,
pursuant to [USSG] § 3B1.1(a).”
Presentence Report at 10. Accordingly,
the report called for an Offense Level of
39, while recognizing that “a 4+
adjustment [] is contrary to the plea
agreement, in that the plea agreement
specifies a total offense level of 35.” Id.
at 19. On April 18, 2002, Rivera filed
objections in which he stated regarding
the recommendation that the Offense
Level be set at 39: “such an application is
repugnant to the defendant’s plea
agreement.” App. at 132(a).
The United States’ attorney
replied to Rivera’s objections by filing a
letter brief with the district court. The
letter argued that Rivera’s assertion
“constitutes a clear misapplication of the
Plea Agreement,” and that, regarding the
defendant’s role within the conspiracy,
“the United States is not precluded from
arguing that the defendant is deserving of
a role enhancement.” Id. at 143(a).
Rivera did not file a response to the
government’s letter.
On July 19, 2002, the district
court conducted the sentencing hearing.
The court asked: “Does the government
take any position with regard to role in
the offense?” App. at 29(a). By way of
allocution, the prosecutor responded, “we
stand by the probation officer’s
conclusions. . . . The notion that
because Schedule A refers to a specific
offense level . . . perhaps it’s a little bit
of poor draftsmanship. . . . Schedule A
is . . . silent [] as . . . to any other upward
or downward adjustments.” Id. at 29(a)-
30(a).
Ruling orally from the bench at
the sentencing hearing, the district court
stated:
the parties recognized at
the time of their stipulation
that there may be other
Guidelines that have a
bearing upon what the
appropriate sentence
should be, and that they
had not reached agreement
as to any other Guidelines,
and . . . The parties do
reserve their rights to argue
mitigating or aggravating
circumstances that are not
covered by their
stipulations. . . . The
probation department has
proposed that there be a
four point enhancement for
the defendant’s leadership
role in the conspiracy. The
parties’ stipulation is silent
as to any adjustment for
role. The parties’

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stipulation does not
constitute an agreement
that there shall be no role
adjustment.
But even if it is interpreted
as at least a silent
agreement that the proper
Total Offense Level is 35
as Paragraph 5 of the
stipulations recites, the
Court nonetheless has to
look at the facts of the case
and to determine whether
the Sentencing Guidelines
indicate that any role
adjustment, either upward
or downward, is
appropriate in this case.
Id. at 27(a)-28(a) (emphasis supplied).
The district court ultimately
adopted the factual findings and
recommendations of the Presentence
Report and, accordingly, set the
applicable Offense Level to 39 and
sentenced Rivera to a 324 months term
of imprisonment and supervised release
of five years. This appeal followed.
II.
Rivera’s principal argument is that
the United States’ allocution breached
the plea agreement by advocating to the
sentencing judge that the four-level
enhancement recommended by the
Presentence Report be added to the
applicable offense level.2 Our analysis of
that argument proceeds in three parts.
We first discuss the standard of review,
then the merits of Rivera’s claim that the
United States breached the plea
agreement, then the issue of remedy.
A. Standard of Review
The threshold question is the
applicable standard of review. We
conclude that our review is de novo. The
2 Rivera raises five
additional arguments: that (1) the district
court erred in failing to hold that the
government breached its duty to consider
all of Rivera’s cooperation under USSG
§ 5K1.1; (2) 21 U.S.C. §§ 841(B)(1)(A)-
(B) are facially unconstitutional with
respect to cocaine and cocaine base; (3)
USSG § 3B1.1(a) is unconstitutional
under Apprendi v. New Jersey, 530 U.S.
466 (2000), because it increases a
mandatory minimum sentence upon
judicial fact-finding under a
preponderance of the evidence standard
of proof; (4) USSG § 3B1.1 is
unconstitutional under Apprendi and
Ring v. Arizona, 536 U.S. 584 (2002),
because it authorizes punishment beyond
the facts established by the offense of
conviction or stipulations; and (5) that
applying 18 U.S.C. § 3742 (g)(2) on
remand would violate the constitutional
separation of powers doctrine. We
resolve the appeal on the issue of breach
of plea agreement and do not reach these
additional arguments.

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United States argues that Rivera failed to
raise the issue below. It cites United
States v. Thornton, 306 F.3d 135, 137
(3d Cir. 2002), for the proposition that
Rivera’s claim for breach of plea
agreement by the United States is
therefore subject to the “plain error
standard of review on appeal.” Aple’s
Br. at 19. However, Thornton involved a
defendant’s claim that a district court
violated the plea agreement by
considering evidence that the plea
agreement had stipulated would be
excluded for the purposes of sentencing.
See 306 F.3d at 1357. In contrast, in a
case where the defendant, like Rivera,
claimed breach of the plea agreement by
the prosecution, and the defendant
“concede[d] that he did not raise this
objection in the district court,” this court
has stated, without qualification, that
“whether the government violated the
terms of a plea agreement is a question of
law subject to plenary review.” United
States v. Queensborough, 227 F.3d 149,
156 (3d Cir. 2000) (emphasis supplied)
(citing United States v. Moschahlaidis,
868 F.2d 1357, 1360 (3d Cir. 1989)).
Accord, e.g., United States v. Lawlor,
168 F.3d 633, 636 (2d Cir. 1999); United
States v. Courtois, 131 F.3d 937, 938 &
n.2 (10th Cir. 1997).3
The government argues that our
statement in Queensborough is not
controlling because we ultimately held
that there was no error and because it is
not made clear in that decision whether
the defendant made any argument that
the plain error standard of review should
apply. This reading of Queensborough is
too narrow: in adopting a “plenary”
framework of review, rather than the
discretionary four-plus step plain error
review of United States v. Olano, 507
U.S. 725 (1993), and its progeny, we did
not reserve the question of what standard
of review controlled. Nor did we qualify
our statement that the applicable review
was “plenary” in any way. Our law
defines “plenary” as de novo. See Dixon
Ticonderoga Co. v. Estate of O’Connor,
248 F.3d 151, 161 (3d Cir. 2001).
Accordingly, even if Rivera’s objection
to the Presentence Report did not
effectively raise the issue before the
district court,4 our review must be de
3 As we observed in
Queensborough, a number of other courts
of appeals have reviewed claims that the
government breached a plea bargain not
raised before the district court under a
clearly erroneous or plain error standard.
See 227 F.3d at 156; see also United
States v. Peterson, 225 F.3d 1167, 1170
n.2 (10th Cir. 2000) (collecting cases on
either side of the circuit split).
4 We note, parenthetically,
that the United States and the sentencing
judge were on notice from Rivera’s
objections, filed before the sentencing
hearing, that Rivera viewed the adoption
of the probation officer’s recommended
departure from the plea agreement’s
stipulated 35 Offense Level (or an
allocution or sentence adopting that
recommendation) as “repugnant to [the]

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novo.5
Well-established, additional
principles confirm the propriety of de
novo review of Rivera’s claim. First,
“[b]reach of a plea agreement by a
prosecutor [] strikes at public confidence
in the fair administration of justice and,
in turn, the integrity of our criminal
justice system in which a vast number of
cases are resolved by plea agreement.”
Dunn, 247 F.3d at 463. Second, because
they relieve the government of the need
to prepare and conduct a trial, “[p]lea
agreements, though arising in a criminal
context, are analyzed under contract law
standards.” United States v.
Nolan-Cooper, 155 F.3d 221, 236 (3d
Cir. 1998). Third, the United States has
an obligation to “‘adhere strictly to the
terms of the bargain it strikes with
defendants.’” Queensborough, 227 F.3d
at 156 (quoting Moschahlaidis, 868 F.2d
at 1361). “Because the defendant, by
entering into the plea, surrenders a
number of h[is] constitutional rights,
‘courts are compelled to scrutinize
closely the promise made by the
government in order to determine
whether it has been performed.’”
Nolan-Cooper, 155 F.3d at 236 (quoting
United States v. Hayes, 946 F.2d 230,
233 (3d Cir. 1991)). Fourth, in
determining whether the plea agreement
has been breached, we must determine
“whether the government’s conduct is
inconsistent with what was reasonably
understood by the defendant when
entering the plea of guilty.” United
States v. Badaracco, 954 F.2d 928, 939
(3d Cir. 1992) (internal quotation marks
omitted). Finally, “[i]n view of the
government’s tremendous bargaining
power, we will strictly construe the text
against it” as the drafter of plea
agreements to the extent the agreement
is ambiguous. United States v. Baird,
218 F.3d 221, 229 (3d Cir. 2000).
Accordingly, the United States may not
rely upon a ‘rigidly literal’ approach to
the construction of the terms of the plea
agreement.” Nolan-Cooper, 155 F.3d at
236 (citing Moschahlaidis, 868 F.2d at
1361).
plea agreement.” Thus the judge must
have known, or is chargeable with
knowledge, that Rivera thought that a 39
Offense Level was contrary to the plea
agreement. The availability of de novo
review on appeal regardless of whether
Rivera formally objected to the
government’s advocacy makes it
unnecessary for us to pursue the question
of whether this indirect notice entitles
Rivera to de novo review on independent
grounds.
5 According to the
government, extending de novo review
“to areas outside the breach context
would eviscerate the contemporaneous
objection requirement.” Aple’s Br. at 36.
However, our statement of the applicable
standard of review in Queensborough
was limited to the plea bargain context
and the important concerns it implicates.

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B. Merits of Rivera’s Claim for
Breach of Plea Bargain
Rivera’s argument that the
government breached the plea agreement
is straightforward and persuasive. The
plea agreement stated: “In accordance
with the above, the applicable guidelines
total offense level is 35.”6 The statement
by the United States’ attorney that “we
stand by the probation officer’s
conclusions,” App. at 29(a) – which
included the recommendation that the
Offense Level should be 39 – was
inconsistent with the stipulation entered
into by the United States that the
applicable Offense Level would be 35.
By, in effect, endorsing the Probation
Office’s recommendation of an Offense
Level of 39, the government breached its
agreement that the stipulated applicable
Offense Level would be 35.7
The government advances five
(closely related) arguments in favor of
the district court’s interpretation of the
plea agreement, none of which we find
persuasive. The government’s most
forceful argument is that the provision in
the plea agreement – that “except as
otherwise provided in this agreement,
[the United States] reserves its right to
take any position with respect to the
appropriate sentence to be imposed on
Isaac [Rivera] by the sentencing judge” –
permitted the government to advocate a
role enhancement. However, this
argument, based on the broadly worded
exception, runs counter to, and is
therefore trumped by, the specific
stipulation in the agreement. See Corbin
on Contracts § 24.23 (revised ed. 1998)
(“If the apparent consistency is between
a clause that is general and broadly
inclusive in nature and one that is more
limited and specific in its coverage, the
more specific should . . . be held to
prevail over the more general term”); see
also Restatement (Second) of Contracts §
203. Because the Offense Level was
specifically stipulated to, whereas the
government’s right to advocate a role
6 Given this language, it is
difficult to understand how the district
court arrived at the conclusion that there
may have been a “silent agreement that
the proper Total Offense level is 35.”
App. at 25(a) (emphasis supplied).
7 The possibility that the
district court might have adopted the
probation officer’s findings and
recommendations even had the
government not urged their adoption is
not relevant to the question of breach.
To be entitled to remand, Rivera need
only show that the United States
breached its agreement. See
Nolan-Cooper, 155 F.3d at 236 (“the
doctrine that the government must adhere
to its bargain in the plea agreement is so
fundamental that even though the
government’s breach is inadvertent and
the breach probably did not influence the
judge in the sentence imposed, due
process and equity require that the
sentence be vacated.”) (internal
quotations omitted).

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enhancement was not, the government’s
endorsement of an enhancement that
would raise the Offense Level above the
stipulated level contravened the plea
agreement. Moreover, to the extent there
is ambiguity caused by the “little bit of
poor draftsmanship” conceded by the
prosecutor, we must construe the
agreement against the government as
drafter. See Baird, 218 F.3d at 229.8
Second, the government argues
that an interpretation that binds it to the
stipulation in Paragraph 5 renders
“superfluous” the language in Paragraph
5 that the stipulation to the Offense Level
being 35 was “in accordance with the
above.” Aple’s Br. at 40. Nor is this
argument persuasive. The foregoing
language may be fairly construed as
having independent, non-“superfluous”
meaning: it explains the steps by which
the stipulation reduced the Offense Level
from 38 to 35 (two-level reduction for
acceptance of responsibility; one level
reduction if the court set the Offense
Level at 16 or higher).
Third, and relatedly, the
government asserts that the position of
paragraph 5 in Schedule A, coming
immediately after the paragraphs which
established the components of the
calculation set forth in that paragraph,
“suggests that ¶ 5 was intended to
explain and justify those . . . provisions,
rather than to bind a Total Offense Level
[of] 35 for all purposes.” Aple’s Br. at
40 (emphasis supplied). We agree, as
mentioned, that the “Stipulations”
section’s function was, in part, to explain
the calculation of the applicable Offense
Level. However, this does not make the
stipulation non-binding. To the extent
the United States, as the drafting party,
desired to qualify the stipulation, it could
have included such language. But it did
not. And, again, to the extent that this
provision is ambiguous – and it is at least
ambiguous – we construe the provision
as effecting a binding obligation on the
government. Cf. Baird, 218 F.3d at 229.
Next, argues the government, the
district court’s construction of the plea
agreement should be upheld because
“there is no controlling judicial authority
. . . which has held, even at this time, that
language similar to that in this plea
agreement forbade the government from
advocating [] a role enhancement.”
Aple’s Br. at 39. We reject this
argument. That the construction of this
plea agreement’s stipulation language, or
language similar to it, has not apparently
been analyzed in a published opinion is
8 Perhaps recognizing that
the provision at issue here created at least
ambiguity on the question of the
government’s ability to, consistent with
the plea agreement, advocate for
enhancements not specified in the
agreement, the government concedes that
“[t]he United States Attorney’s Office
has subsequently re-drafted its form
cooperating plea agreement to omit any
stipulation regarding the Total Offense
Level.” Aple’s Br. at 26 n.8.

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no bar to our analysis of the agreement.
Significantly, the government identifies
no authority, controlling or otherwise,
that has sanctioned role advocacy where
the plea agreement was silent regarding
role enhancement and affirmatively
stipulated a particular Offense Level.
Finally, the government urges us
to draw an inference adverse to Rivera
from his failure to object before the
district court to the statement in the
government’s letter brief concerning an
enhancement for role. The government
cites language from a recent opinion by
a sister circuit court that the appellant’s
“failure to object at sentencing [that the
government breached the plea
agreement] is but further evidence that
his expectations of the government were
satisfied.” United States v. Werner, 317
F.3d 1168, 1170 (10th Cir. 2003).
However, we are reluctant to draw any
such inference from silence without
more. Further, the government’s
argument is not supported by the record.
Far from being satisfied, Rivera firmly
objected to the probation officer’s
recommendation of an Offense Level of
39 as being “repugnant to the
defendant’s plea agreement.” Although
not a challenge to the government’s
advocacy of a role enhancement, this
objection, filed in the district court
subsequent to the execution of the plea
agreement, but over three months before
sentencing, suggests quite clearly that
Rivera did not accept the theory that the
plea agreement authorized the
government to advocate for a role
enhancement. See App. at 131(a).
C. Remedy
The final issue concerns what
remedy is appropriate. “When the
government breaches a plea agreement,
the general rule is to remand the case to
the district court for a determination
whether to grant specific performance or
to allow withdrawal of the plea.”
Nolan-Cooper, 155 F.3d at 241. “It is
also the rule in this circuit that if specific
performance is the applicable remedy,
the defendant must be re-sentenced by a
different district judge than the one who
presided over the now-vacated original
sentence.” Id.9 Consistent with this
Circuit’s practice, the parties agree that if
we find, as we have, a breach of the plea
agreement, the case should be remanded
for resentencing before a different judge.
See Aplt’s Br. at 48; Aple’s Br. at 50
n.20; Nolan-Cooper, 155 F.3d at 241 (in
remanding for reassignment and
resentencing, explaining that “‘[s]pecific
performance is feasible and is a lesser
burden on the government and
defendant’”) (quoting United States v.
Kurkuler, 918 F.2d 295, 302 (1st Cir.
1990)). Accordingly, we will vacate the
sentence imposed and remand the case to
the district court for resentencing before
9 By directing resentencing
by a different District Judge, we do not
suggest that the original District Judge
could not resentence appropriately. We
are merely following our prior opinions.

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a different judge.
III.
“It is very well to say that those
who deal with the Government should
turn square corners. But there is no
reason why the square corners should
constitute a one-way street.” Federal
Crop Ins. Corp. v. Merrill, 332 U.S. 380,
387-88 (1947) (Jackson, J., dissenting).
For the reasons set forth above, we hold
that the United States breached the plea
agreement, VACATE the sentence, and
REMAND to the district court for
reassignment to a different judge and
resentencing.

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