United States v. Moure-Ortiz, 184 F.3d 1, 1st Cir. (1999)

184 F.3d 1 (1st Cir.
1999)
UNITED STATES, APPELLANT,

v.
EDWIN MOURE-ORTIZ, A/K/A AGUI, DEFENDANT,
APPELLEE.
No. 98-1128
U.S. Court of Appeals, First Circuit

Heard March 3, 1999.
Decided July 8, 1999
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO, Hon. Salvador E. Casellas, U.S. District
Judge
Antonio R. Bazan, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa,
Senior Litigation Counsel, were on brief, for appellant.
Bruce J. McGiverin, by appointment of the Court, for appellee.
Before Torruella, Chief Judge, Selya, Circuit Judge, and Acosta,* Senior
District Judge.
Acosta, Senior District Judge.
This is an appeal by the Government from a sentence imposed following a
guilty plea pursuant to a plea agreement tendered under Fed. R. Crim. P.
11(e)(1)(C). We have jurisdiction under 28 U.S.C. 1291 and 18 U.S.C.
3742(b), (c) and review de novo. United States v. Ticchiarelli, 171 F.3d
24 (1st Cir. 1999). We reverse and remand.
Defendant Edwin Moure Ortiz ("Moure") was indicted by a grand jury on
February 28, 1996, and charged with conspiracy to distribute in excess of
five kilograms of cocaine (Count One); aiding and abetting in the
possession with intent to distribute two kilograms of cocaine (Count Two);
carrying a firearm during and in relation to a drug trafficking crime (Count
Three); and using a communication facility to commit and facilitate the
crime of distribution of narcotics (Count Four).
On March 4, 1997, Moure pled guilty to counts Two and Three,

conditioned upon Moure's right to appeal the district court's denial of his
motion to dismiss the firearms count. Sentence was scheduled for July 11,
1997.
Prior to sentencing, Moure filed a motion for downward departure
pursuant to United States Sentencing Guidelines ("Guidelines") 5H1.4
due to his "extraordinary physical impairment." He also requested that Dr.
Wilfredo Daz Romero, the medical director of MDC Guaynabo, be
permitted to testify regarding his medical condition.
The Court held a hearing on July 10, 1997 at which Dr. Daz Romero
testified that Moure suffered from polycythemia vera, 1 a condition which
constituted an "extraordinary physical impairment" rendering Moure
seriously infirm. The Court took Moure's request for downward departure
under advisement and sentencing was rescheduled for July 29, 1997.
On July 29, 1997, the Court granted a motion by Moure to withdraw his
guilty plea. Subsequently, the United States and Moure negotiated an
11(e)(1)(C) plea agreement pursuant to which Moure would plead guilty
to Count Two and the remaining counts would be dismissed. This second
plea agreement called for a specific sentence of 84 months of
imprisonment based on an adjusted offense level of 28.2
On August 22, 1997, the Court held a change of plea hearing, during
which Moure entered a plea of guilty to Count Two of the indictment.
After advising the defendant of his rights, the Court stated as follows:
"Very well, the plea agreement is hereby order[ed] filed. The Court does
hereby accept the plea agreement and will sentence the defendant in
accordance with the plea agreement after receiving the pre-sentence
report."
After the defendant had accepted the Government's version of the facts,
the district court also advised the defendant as follows:
"Even though the Court has accepted the plea agreement, I want you to be
aware that the guideline sentence in the pre-sentence report may be
different from the one that has been contemplated in these negotiations as
a result of the findings of the pre-sentence report. But the Court in this
hearing has accepted the plea agreement and will sentence you according
to the plea agreement. (emphasis ours)."Having thus declared its
intentions for the record, the parties3 were nonplussed when the Court
announced at the sentencing hearing held on October 10, 1997, that it
would, sua sponte, depart downward from the agreed-to specific sentence
of 84 months due to Moure's extraordinary physical impairment.

Despite the Government's objections to the Court's unanticipated
downward departure, and its explanation that Moure's physical condition
had been taken into account during the renegotiations that followed
defendant's withdrawal of his original guilty plea, and despite the Court's
acknowledgment that "[t]he usual case... is that the Court either accepts
the plea agreement or gives the defendant an opportunity to withdraw his
plea.", the Court, finding that extraordinary circumstances and the
interests of Justice so warranted, proceeded to depart downward from the
expected 84 month sentence to the Guidelines level identified in the
Presentence Report,4 and sentenced defendant to 63 months.
DISCUSSION
A contractual approach to disputes over plea agreements "ensures not only
that constitutional rights are respected, but also that the integrity of the
criminal process is upheld." United States v. Papaleo, 853 F.2d 16, 19 (1st
Cir. 1988).
A principal purpose of an 11(e)(1)(C) agreement is to permit the
Government and the defendant to come to an agreement as to a specific
sentence.
Thus, Rule 11(e) Fed. R. Crim. P. provides in pertinent part as follows:
"(E) Plea Agreement Procedure"
"(1) In General. The attorney for the government and the attorney for the
defendant or the defendant when acting pro se may engage in Discussions
with a view toward reaching an agreement that, upon the entering of a plea
of guilty or nolo contendere to a charged offense or to a lesser or related
offense, the attorney for the government will do any of the following:"
"(A) move for dismissal of other charges; or"
"(B) make a recommendation, or agree not to oppose the defendant's
request, for a particular sentence, with the understanding that such
recommendation or request shall not be binding upon the court; or"
"(C) agree that a specific sentence is the appropriate Disposition of the
case."
Once the court accepts an 11(e)(1)(C) agreement, an expectation is
created in the parties that the court--if it proceeds to impose sentence--will

indeed sentence defendant in conformity with the Dispositions of the
contract.
After the district court provisionally accepted the agreement, its only
recourse was to reject the agreement if it found the negotiated sentence
unsatisfactory. "If the Court did not find the terms [of the agreement]
appropriate, its only option was to reject the agreement in its entirety."
United States v. Mukai, 26 F.3d 953, 956 (9th Cir. 1994). See also United
States v. Gilchrist, 130 F.3d 1131, 1134 (3d Cir. 1997) ("An 11(e)(1)(C)
plea agreement, once accepted, binds the district court notwithstanding
departures from the applicable guidelines"); United States v. Veri, 108
F.3d 1311, 1315 (10th Cir. 1997) ("[I]f a sentencing court accepts a Rule
11(e)(1)(C) agreement, it is bound by the agreement and may not modify
it".).
In defense of his sentence, Moure argues that Rule 11(e) does not prohibit
the Court from unilaterally imposing a more lenient sentence than that
specified in a Rule 11(e)(1)(C) agreement. We disagree.
The rule plainly contemplates that plea agreements executed pursuant to
subdivisions (e)(1)(A) or (C) are binding on the district court. "[C]ritical
to a type (A) or (C) agreement is that the defendant receive the
contemplated charge dismissal or agreed-to sentence." Fed. R. Crim. P.
advisory committee's note (1979 amendment).
Moreover, the rule does not authorize a district court to accept the
agreement at a plea hearing, advise the defendant that he or she will be
sentenced in accordance with its terms on the one hand, and on the other
disregard its own pronouncements and modify the agreement in
accordance with a personal notion of what constitutes a just sentence.
This interpretation is firmly supported by Rule 11(e)'s history:
"The legislative history of 11(e)(3) shows that Congress wished to
preclude a district court from accepting a plea agreement which provides
for a specific sentence and then imposing a more lenient sentence than
that provided for in the plea agreement. The version of 11(e)(3) proposed
by the Supreme Court in 1974 stated that "the court shall inform the
defendant that it will embody in the ... sentence the Disposition provided
for in the plea agreement or another Disposition more favorable to the
defendant than that provided for in the plea agreement." The House
Judiciary Committee then deleted the language "or another Disposition
more favorable to the defendant than that provided for in the plea
agreement," and the House affirmed the committee's action by rejecting

on the floor an amendment offered to restore the Supreme Court's version
of the rule. The Senate accepted the House's version of the rule."
"By deleting the Supreme Court's 'more favorable to the defendant'
language, Congress evidenced its intent to require a district court to
sentence a defendant in accordance with the plea agreement."
United States v. Semler, 883 F.2d 832, 833-34 (9th Cir. 1989)(internal
citations omitted).
Finally, we reject Moure's contention that while Rule 11(e) provides that
the defendant may withdraw his plea if a higher sentence is contemplated,
it does not provide for the Government to withdraw from the agreement if
a lower sentence is envisioned by the district court. "A district court which
unilaterally reduces the sentence provided for in an accepted plea
agreement deprives the prosecutor of the 'benefit of his bargain'. . .".
Semler, 883 F.2d at 834, an action which he or she is specifically
authorized to appeal pursuant to statute. See 18 U.S.C. 3742(c)(2).
Accordingly, we remand the case to the district court with instructions to
vacate the sentence previously imposed, vacate the dismissal of the other
counts, and then either sentence the defendant according to the terms of
the plea agreement or reject the agreement and afford the Government and
Moure an opportunity to renegotiate its terms (or in the alternative, try the
case).
REVERSED AND REMANDED.
Notes:
*
Of the District of Puerto Rico, sitting by designation.
A disorder characterized by abnormal proliferation of all hematopoietic bone

marrow elements and an absolute increase in red cell mass and total blood
volume. Also known as erythremia, erythrocythemia, Vaquez-Osler disease.
Dorland's Medical Dictionary 1327 (28th ed. 1994).
A Base Offense Level of 26 was established pursuant to U.S.S.G. Section

2D1.1(7) and two additional levels were added for the possession of a firearm
during the commission of a drug trafficking crime pursuant to U.S.S.G. Section
2D1.1(b)(1). Combined with defendant's criminal history category of I, the

adjusted offense level of 28 yielded a guideline imprisonment range of 78 - 97
months.
3
Counsel for defendant had even acknowledged that she could not argue for any
further reduction in her client's sentence "because we are bound by our word
that we gave previously and by the plea we entered into with the United States .
. .".
The Probation Office's Guidelines level calculations in defendant's Presentence

Report had rendered an adjusted offense level of 26 which provides for an
imprisonment range of 63 to 78 months.

United States v. Moure-Ortiz, 184 F.3d 1, 1st Cir. (1999)

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184 F.3d 1 (1st Cir.

UNITED STATES, APPELLANT,

U.S. Court of Appeals, First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

On March 4, 1997, Moure pled guilty to counts Two and Three,

of 84 months due to Moure's extraordinary physical impairment.

created in the parties that the court--if it proceeds to impose sentence--will

agreement," and the House affirmed the committee's action by rejecting

Of the District of Puerto Rico, sitting by designation.

A disorder characterized by abnormal proliferation of all hematopoietic bone

A Base Offense Level of 26 was established pursuant to U.S.S.G. Section

2D1.1(b)(1). Combined with defendant's criminal history category of I, the

The Probation Office's Guidelines level calculations in defendant's Presentence

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