F I L E D

United States Court of Appeals

Tenth Circuit

JUN 16 1998

PUBLISH
UNITED STATES COURT OF APPEALS

PATRICK FISHER
Clerk

TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 97-1094

FREDERICK BRYE,
Defendant-Appellant.

Appeal from United States District Court

for the District of Colorado
(D.C. No. 96-CR-59-S)
Nancy Holton, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with her on the brief), Denver, Colorado, for the appellant.
John M. Hutchins, Assistant United States Attorney (Henry L. Solano, United
States Attorney, and Craig F. Wallace, Assistant United States Attorney, with him
on the brief), Denver, Colorado, for the appellee.
Before HENRY, BARRETT, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.

Defendant Frederick Brye entered into a plea agreement and pleaded guilty
to being a felon in possession of ammunition, a violation of 18 U.S.C. 922(g).
He was sentenced to sixty months imprisonment and three years supervised
release. He appeals his sentence, contending the government breached the plea
agreement and the district court erred in denying a downward departure for preindictment delay. We conclude the government did breach the plea agreement and
remand for resentencing. We dismiss for lack of jurisdiction defendants claim
that the court erred in denying a downward departure.
I.
Defendant and his brother Bond Brye had a heated argument on June 14,
1993, concerning Bonds relationship with defendants girlfriend. Bond
purportedly struck and threatened to kill defendant. Defendant telephoned Fidel
Garner around 8:00 p.m. and asked him to bring his .45. He again called
Garner around 10:45 p.m. and told him he needed the gun because Bond had
kicked him, shot at him, threatened to kill him, and chased him with a gun. The
government had a Title III wiretap on Garners telephone line, which was
unknown to either Garner or defendant, and intercepted both of the conversations.
Based on this information, the police stopped defendants car and found a .45
pistol and two rounds of Winchester Silver Tip ammunition inside the car.
Sometime later in 1993, defendant was taken into state custody for

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violation of state law where he remained until early 1996. He was not charged in
federal court with being a felon in possession of a firearm until February 14,
1996. Based on the long delay between the time the offense was committed and
the date of the indictment, defendant moved to dismiss the indictment for
excessive pre-indictment delay. The court denied the motion because defendant
could not establish the government intentionally delayed seeking an indictment to
gain a tactical advantage. Immediately before trial began on October 7, 1996,
defendant entered into a plea agreement and pleaded guilty to being a felon in
possession of ammunition.
Prior to sentencing, defendant filed a motion for downward departure from
the recommended sentencing guidelines because (1) he committed the offense
while under coercion and duress,

(2) the governments pre-indictment delay

prejudiced his defense, and (3) the totality of the circumstances justified a
downward departure. The court ultimately denied defendants request for

There is no question that Bond was an extremely dangerous person.

Defendant argued Bonds dangerous nature forced defendant to obtain a gun to
protect himself and he committed the offense while under duress. Defendant
presented evidence at sentencing that Bond had attempted to strangle their sister
and had shot at their mother during the same time period that Bond had threatened
defendant. The taped conversations between Garner and defendant also clearly
indicated defendant was afraid of Bond. The police observed defendant being
chased by an unidentified black male in the area around defendants house and
defendants mothers house on the date of the offense. Bond committed suicide
on September 27, 1993, apparently suffering from mental illness.
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downward departure.
II.
Defendant argues the government violated the plea agreement because the
prosecutor opposed downward departure during sentencing. Whether
government conduct has violated a plea agreement is a question of law which we
review de novo.

United States v. Hawley , 93 F.3d 682, 690 (10th Cir. 1996).

Where the government obtains a guilty plea predicated in any significant

degree on a promise or agreement of the prosecuting attorney, such promise must
be fulfilled to maintain the integrity of the plea.
404 U.S. 257, 262 (1971);

See Santobello v. New York ,

United States v. Hand , 913 F.2d 854, 856 (10th Cir.

1990); see also United States v. Peglera , 33 F.3d 412, 414 (4th Cir. 1994)
(Because a government that lives up to its commitments is the essence of liberty
under law, the harm generated by allowing the government to forego its plea
bargain obligations is one which cannot be tolerated.). To determine whether a
breach has, in fact, occurred, we apply a two-step process: (1) we examine the
nature of the governments promise; and (2) we evaluate this promise in light of
the defendants reasonable understanding of the promise at the time the guilty
plea was entered.

United States v. Rockwell Intl Corp.

, 124 F.3d 1194, 1199

(10th Cir. 1997), cert. denied 118 S. Ct. 1559 (1998).

We apply general principles of contract law to define the nature of the

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governments obligations in a plea agreement.

Hawley , 93 F.3d at 692; see Doe

v. United States , 51 F.3d 693, 701 (7th Cir. 1995) (Plea agreements are
contracts, which means that the first place to look in determining the extent of the
governments promises under the [] agreement is the language of the agreement
itself.). Accordingly, we determine the governments obligations by reviewing
the express language used in the agreement.

See United States v. Courtois , 131

F.3d 937, 939 (10th Cir. 1997) (We agree with the other circuits that have
considered this issue and have found that whether a plea agreement unequivocally
obligates the government to provide defendant with the opportunity to provide
substantial assistance turns on the specific language of the agreement.);
Rockwell , 124 F.3d at 1200; United States v. Vargas , 925 F.2d 1260, 1266-67
(10th Cir. 1991); United States v. Easterling , 921 F.2d 1073, 1079 (10th Cir.
1990). We will not allow the government to rely upon a rigidly literal
construction of the language of the agreement to escape its obligations under
the agreement.

Hand , 913 F.2d at 856 (quoting

United States v. Shorteeth , 887

F.2d 253, 256 (10th Cir. 1989)). As with the interpretation of any contract, we
also apply the maxim that the agreement should be construed against its drafter.
Hawley , 93 F.3d at 690.

It is not entirely clear who drafted the plea agreement here, but at one
point in the sentencing hearing the prosecutor seemed to imply he had authored it.
(continued...)
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With these general principles in mind, we turn to the language in the plea
agreement here. The agreement obligated the government to:
A. Dismiss, at sentencing, the [i]ndictment . . .;
B. File no further charges against [defendant] based upon what
[was known at that time] of his criminal misconduct . . .;
C. Stipulate, under Fed. R. Crim. P. 11(e)(1)(c), to a sentence
of no more than sixty (60) months;
D. Agree that defense counsel may argue for an extraordinary
departure under Section 5K2.0 et seq ., and the government will defer
to the Courts determination of this point.
E. Consider providing defendant an opportunity to debrief
regarding his knowledge of drug trafficking activities, . . . and agree
to file at sentencing a motion under Section 5K1.1 of the U.S.
Sentencing Guidelines, recommending a downward departure from
defendants resulting guideline range, if, in the governments sole
and good faith discretion, defendant has provided substantial
assistance in the investigation of others.
Record I, Doc. 18, at 1-2. Defendant agreed to plead guilty to a one-count
information which charged him with being a felon in possession of ammunition,
in violation of 18 U.S.C. 922(g).
Defendant argues the government violated part D of the agreement. The
parties disagree on the meaning of the word defer and what departure
determination the government agreed to defer to the court. The government
argues this provision referred only to defendants request for downward departure
based on coercion or duress, while defendant argues the government agreed to
(...continued)
See Record VII at 6-7 (We drafted an information . . . . I told her we put it in
the plea agreement that she could do that. . . . I indicated in the plea agreement.)
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defer on all possible bases for downward departure under U.S.S.G. 5K2.
The word defer means to refer or submit for determination or decision
or to submit or yield through authority, respect, force, awe, [or] propriety.
Websters Third New International Dictionary 591 (1993). The government adopts
this definition and claims it agreed to submit the question of whether defendant
was eligible for downward departure to the court for determination. Although
this argument seems to comport with the dictionary definition of defer, it is
nonsensical when viewed in the context of sentencing proceedings. The
sentencing court already possessed the authority to determine whether defendant
was eligible for downward departure. Therefore, interpreting the plea agreement
as the government urges renders part D superfluous, which is obviously not in
accord with general principles of contract law.

See Restatement (Second) of

Contracts 203(a) (1979) (an interpretation which gives a reasonable, lawful,

and effective meaning to all the terms [of an agreement] is preferred to an
interpretation which leaves a part unreasonable, unlawful, or of no effect);

New

Valley Corp. v. United States , 119 F.3d 1576, 1580 (Fed. Cir. 1997) (An
interpretation that gives a reasonable meaning to all of [the contracts] parts is
preferred to one which leaves a portion of the [contract] inoperative, void,
meaningless, or superfluous.);

see also United States v. Bunner , 134 F.3d 1000,

1006 n.5 (10th Cir.) (We will not construe a statute in a way that renders words

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or phrases meaningless, redundant, or superfluous.),

petition for cert. filed

___

U.S.L.W. ____ (U.S. April 24, 1998) (No. 97-8828).

Therefore, defer must have some additional meaning in the present
context. This additional meaning can, ironically, be gleaned from the
governments description of its obligations at the sentencing hearing:
I indicated in the plea agreement that the government would defer to
the courts finding on [whether defendant is entitled to a downward
departure for coercion or duress]. Essentially, we are not going to
take any particular position. You know, I am not calling any
witnesses or putting on any exhibits today. I may point out a few
things. But essentially, its [defendants] motion. Something [he]
wanted to do, and we agreed to it as part of the plea agreement. . . .
The Court will make the ultimate finding.
Record VII at 7. Later, the government stated: I dont think [the plea agreement]
precludes me from making comments. I think it precludes me from taking any
particular position.

Id. at 50.

As the government correctly noted during sentencing, a plea agreement

requiring the government to defer to the courts determination of an issue does
not require the government to stand mute under all circumstances. Certainly the
government is entitled, perhaps even obligated as an officer of the court, to
correct factual and legal inaccuracies for the court.

See United States v. Svacina ,

137 F.3d 1179, 1185 (10th Cir. 1998) (The government cannot be penalized for
correctly stating the legal issue to be addressed by th[e] court.);

United States v.

Jimenez , 928 F.2d 356, 363 (10th Cir. 1991) (government obligated to inform

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sentencing court of relevant, derogatory information about defendant that

prosecutor learned after plea agreement);

Hand , 913 F.2d at 856 (government not

obliged to stand mute in the face of incorrect or misleading testimony offered

before the trial court);

United States v. Stemm , 847 F.2d 636, 639 (10th Cir.

1988) (Disclosure of information as to the nature of the offense and each

defendants role is proper and within the Governments duty to provide, despite a
promise that the Government would make no recommendation as to sentence.).
However, if the government has agreed to defer to the courts determination of
an issue, its authority to comment during a defendants sentencing stops there.
The government cannot oppose the defendants motion, in any fashion, after
agreeing to defer to the courts determination on the issue. This means the
government may not call witnesses, present exhibits, or make any legal arguments
in opposition to defendants motion. As we explained in

Hawley , the government

breaches an agreement not to oppose a motion when it makes statements that

do more than merely state facts or simply validate [] facts found in the
Presentence Report and provide[s] a legal characterization of those facts [or]
argue[s] the effect of those facts to the sentencing judge. 93 F.3d at 693.
Although we have determined the government agreed not to oppose
defendants motion for downward departure, it is also necessary to determine
whether the government agreed not to challenge downward departure on all

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possible grounds or merely with respect to coercion or duress. The government

argues it only agreed to defer to the courts determination with respect to coercion
or duress and, therefore, even if it opposed the motion based on pre-indictment
delay and the totality of the circumstances, it did not violate the plea agreement.
Again, we must examine the precise language of the agreement to resolve the
dispute.
The government agreed not to challenge defendants motion for downward
departure pursuant to Section 5K2.0

et. seq. This language seems plain;

however, 5K2.0 does not set forth a specific basis for departing from the
guidelines. Rather, 5K2.0 is a policy statement that generally outlines
considerations the sentencer should contemplate when determining whether to
grant a defendant a downward departure under any of the specific rationales listed
in other sections of the subchapter that follow 5K2.0.

Each of the remaining

sections in the subchapter, 5K2.1-5K2.18, discusses a specific rationale for

departure. Coercion and duress are addressed in 5K2.12.
Not only does 5K2.0 fail to specifically address a particular justification
for departure, the agreement specifies 5K2.0

et. seq. Record I, Doc. 18, at 2.

Et Seq. is an abbreviation for et sequentes or et sequentia, which means and

the following. Blacks Law Dictionary 553 (6th ed. 1990). Here, 5K2.0
seq. can be reasonably interpreted to include 5K2.0 through 5K2.18.

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et.

Therefore, based on the language in the agreement, we conclude the government

agreed to defer to the courts determination as to whether defendant deserved an
extraordinary downward departure under

any of 5K2.'s subsections.

See United

States v. Williams, 102 F.3d 923, 927 (7th Cir. 1996) (We review the language
of the plea agreement objectively and hold the government to the literal terms of
the plea agreement.).
Such an interpretation appears to comport with the parties reasonable
understanding of the agreement at the time the guilty plea was entered. At the
change of plea hearing, the government stated it understood the plea agreement as
obligating it to:
[allow] defense counsel [to] argue for an extraordinary departure
downward under Section 5K2.0. The burden being on the defense
counsel, of course, to convince the Court that [it] would apply, and
the government will simply defer to the Courts determination of this
point.
Record V at 9. This was also defendants understanding of the agreement.

Id. at

10. Therefore, based on the plain language of the agreement and the parties
apparent understanding of the agreement at the change of plea hearing, the
government agreed not to oppose defendants argument that he was entitled to a
downward departure under

any of the subsections listed after 5K2.0.

Next, we consider whether the government kept its promise. At the

sentencing hearing when defendant argued he should receive a downward

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departure based on the governments pre-indictment delay, the government argued

federal prosecution was delayed because Garner had become a confidential
informant and defendants prosecution would require disclosure of Garners
status. See Record VI at 50-52 (arguing government did not delay prosecution for
tactical reasons); Record VI at 58-59 (arguing defendant not prejudiced by
governments delay); VII at 10 (announcing plan to present testimony to oppose
motion) . The government also called an F.B.I. agent to testify about Garners
role in the investigation to support its position. By arguing the government did
not delay prosecution for tactical reasons and presenting testimony to support its
position, the government clearly breached its plea agreement with defendant to
defer to the courts determination on a downward departure for pre-indictment
delay. See Hawley , 93 F.3d at 693 (governments comments that characterize
the facts and argue a conclusion breach plea agreement to not take position on
issue); c.f. Hand , 913 F.2d at 856 (The prosecutor here did not characterize the
evidence elicited on cross examination, nor did he argue the effect of such
evidence to the sentencing judge.).
The government also breached the plea agreement with respect to
defendants motion to depart for coercion and duress. The following statements,
made in the governments sentencing statement, clearly demonstrate the
government crossed the proverbial line:

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Section 5K2.12 speaks of serious duress. The guideline drafters

further provided that the extent of departure, if any, should be based
upon the reasonableness of the defendants conduct and whether it
would have [been] less harmful.
One of the best methods for the court to determine this issue is
to review the defendants own words, captured in a wiretap, as he
spoke those words just prior to, and after, the car chase. They reflect
defendants decisions in dealing with what had, undisputably, been a
long-standing family matter, potentially involving inter-family
violence. The real issue seems to be whether the duress was so
extreme that defendant acted reasonably by breaking the law to
protect himself and others, or whether this was a case of mutual
combatants.
Record I, Doc. 26, at 4-5. While this statement does not explicitly state defendant
should not receive a downward departure based on coercion and duress, its
implication is clear.

See Hawley , 93 F.3d at 693 (prosecutors purported factual

information provided to court was a thinly disguised, if disguised at all, effort to

persuade the court in a way that the government had promised it would not do).
By pointing out the real issue and highlighting the defendants own words as
one of the best methods for the court to determine this issue, the government
was obviously, albeit subtly, taking a position on whether defendant should
receive a downward departure for coercion and duress. Perhaps the best
indication of the fact that the governments statements were meant to persuade is
that the court ultimately resolved defendants motion by reviewing defendants
own words in the tape-recorded conversations and concluding the brothers had
a mutual disagreement.

See Record VII at 59-65.

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When the government has breached a plea agreement, it is generally

preferable to remand the case to the district court for its determination as to
whether defendant should be resentenced by a different judge or should be
allowed to withdraw his guilty plea.

Hawley , 93 F.3d at 694 (Providing this type

of latitude for the district court on remand is preferable in light of the district
courts position with respect to the case.). When the governments breach is
particularly egregious or intentional, we will allow defendant to withdraw the
guilty plea. See id. ; see , e.g. , United States v. Cooper , 70 F.3d 563, 567 (10th
Cir. 1995). Since it does not appear the governments breach was egregious or
intentional, but rather, was based on misinterpretation of the plea agreement, we
remand only for resentencing by a different judge.
III.
Defendant also argues the district court applied the wrong legal test in
deciding whether to depart based on three years of pre-indictment delay. Br. at
8. [A] discretionary decision not to depart downward is not reviewable unless
the record shows that the district court erroneously believed that the Guidelines
did not permit a departure.

United States v. Banta , 127 F.3d 982, 983 n.1 (10th

Cir. 1997). Apparently, defendant is arguing the courts understanding that it

could not grant downward departure for pre-indictment delay unless defendant
established the government delayed to gain a tactical advantage and that

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defendant suffered prejudice as a result of the delay was erroneous.

Clearly, the district court understood it could grant defendants motion for
downward departure based on pre-indictment delay.

The court specifically stated:

As far as the preindictment delay, . . . . there is a provision under 5K2.12 under

the case law and under the guidelines where the District Court [has] the ability to
depart downward on these grounds. Record VII

at 57. However, the court also

clearly believed it could not grant departure for pre-indictment delay unless
defendant proved the government intentionally delayed to gain a tactical
advantage and that he suffered prejudice as a result of the delay.
When seeking dismissal of an indictment based on pre-indictment delay, a
defendant must establish the government intentionally delayed for tactical reasons
and that the delay caused him actual prejudice.

United States v. Trammell , 133

F.3d 1343, 1351 (10th Cir. 1998). However, a few appellate courts have
suggested a less stringent standard may apply at sentencing when a defendant is
seeking a downward departure based on pre-indictment delay.

See , e.g. , United

States v. Saldana , 109 F.3d 100, 104 (1st Cir. 1997) (It seems to us possible that
someone with time and ingenuity could construct a case where a careless or even
an innocent delay produced sentencing consequences so unusual and unfair that a
departure [without a showing of government intent] would be permissible.);
United States v. Martinez , 77 F.3d 332 (9th Cir. 1996) . This court has not

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specifically addressed whether a different standard may apply to pre-indictment

delay when that question is asserted as a basis for downward departure. We need
not decide this issue in the present case because, even if we were to adopt a more
lenient standard in the sentencing context, defendant would not be entitled to
downward departure. The delay defendant suffered was neither extreme nor
implicitly sinister, but rather the type of delay that is ordinary in the fabric of
criminal proceedings.

Saldana , 109 F.3d at 104.

Defendant has not demonstrated the district court misunderstood the

guidelines or its authority to act under the guidelines and, therefore, we lack
jurisdiction to review the district courts discretionary decision not to depart
downward. See Banta , 127 F.3d at 983 n.1.
IV.
We REMAND to the district court for resentencing by a different judge
based on the governments violation of the plea agreement, and DISMISS for lack
of jurisdiction defendants claim that the district court abused its discretion in
denying downward departure based on pre-indictment delay.

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