United States Court of Appeals, District of Columbia Circuit
December 15, 2017
from the United States District Court for the District of
Columbia (No. 1:16-cr-00121-8)
Gregory Stuart Smith, appointed by the court, argued the
cause and filed the briefs for appellant.
S. Nguyen, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief was Elizabeth Trosman,
Assistant U.S. Attorney.
Before: Garland, Chief Judge, and Srinivasan and Millett,
Garland, Chief Judge
Marquete Murray challenges the sentence that the district
court imposed following his guilty plea. Murray's appeal
presents two questions: whether the government's actions
following entry of the plea breached its plea agreement with
Murray, and whether Murray's counsel provided
constitutionally ineffective assistance in relation to that
reject the government's contention that it did not breach
its plea agreement with Murray. Nevertheless, because
Murray's counsel failed to object, we can grant Murray
relief on this ground only if the government's breach was
plain -- that is, clear or obvious -- which it was not. That,
however, does not end this matter. Because we also reject the
government's contention that Murray has no colorable
claim of ineffective assistance of counsel, we remand the
case to the district court f o r further proceedings.
root problem in this case is that Murray was sentenced based
on a U.S. Sentencing Guidelines range that deviated from the
estimated range set out in his plea agreement -- despite the
fact that nothing unanticipated by the agreement transpired
between the plea and sentencing. This is how that came to
14, 2016, a federal grand jury indicted Murray on a narcotics
conspiracy charge, as well as on a second charge of
unlawfully using a communication facility to facilitate drug
crimes. On October 16, with advice of counsel, Murray entered
into a plea agreement with the Office of the U.S. Attorney
for the District of Columbia, pursuant to which he would
plead guilty in federal court to the conspiracy count, and
would also plead guilty to two other charges in two unrelated
cases in the Superior Court of the District of Columbia:
misdemeanor assault and carrying a pistol without a
license. In exchange, the government agreed, among
other things, to dismiss the remaining count in the federal
indictment, the remaining count in the misdemeanor assault
case, and a third D.C. Superior Court case in its entirety.
plea agreement included an agreed-upon "Estimated
Guidelines Range," meant "to assist the Court in
determining the appropriate sentence." Plea Agreement
¶ 4 (J.A. 24). The parties calculated Murray's
initial base offense level as 20 because the conspiracy
offense involved approximately 30 grams of heroin and 45
grams of PCP. See U.S.S.G. § 2D1.1(c)(10) &
cmt. 8(B). The parties then applied a three-level reduction
that lowered Murray's offense level to 17 based on his
acceptance of responsibility. See id. § 3E1.1.
The plea agreement also stated the parties' agreement
that Murray's estimated criminal history category was
Based upon the information now available to [the U.S.
Attorney's] Office, your client [Murray] has no criminal
Accordingly, your client is estimated to have 0 criminal
history points and your client's Criminal History
Category is estimated to be I. Your client acknowledges that
if additional convictions are discovered during the
pre-sentence investigation by the United States Probation
Office, your client's criminal history points may
Plea Agreement ¶ 4.B (J.A. 26). Based on the estimated
offense level and criminal history category, the parties
agreed that Murray's Estimated Guidelines Range was 24 to
30 months' incarceration. Id. ¶ 4.C (J.A.
agreement further stated that Murray understood the Estimated
Guidelines Range was not binding on the United States
Probation Office or the sentencing court. And it warned that
any post-agreement misconduct that Murray committed could
increase his base offense level or justify an upward
departure. Id. (J.A. 27).
although the parties agreed that a sentence within the
Estimated Guidelines Range "would constitute a
reasonable sentence in light of all of the factors set forth
in 18 U.S.C. § 3553(a)," both parties
"reserve[d] the right to seek a sentence" outside
"the Estimated Guidelines Range based on § 3553(a)
factors." Id. ¶ 5 (J.A. 27).
October 25, 2016, Murray pled guilty in federal court
pursuant to the plea agreement. Three weeks later, on
November 17, he entered the two Superior Court pleas required
by the plea agreement.
December 1, 2016, the Probation Office released a Presentence
Investigation Report (PSR) regarding Murray. T h e PSR
concluded, as had the plea agreement, that Murray's
offense level was 17. PSR ¶¶ 65, 103. But in
calculating Murray's criminal history category, it did
not conclude -- as the agreement did -- that Murray's
criminal history score was 0. Instead, it gave Murray a score
of 2 because "the defendant pled guilty to two District
of Columbia Superior Court cases following his guilty
plea" in federal court. PSR ¶ 109.
Superior Court pleas were the same pleas that Murray's
plea agreement had required. With some exceptions not
relevant here, when a defendant has previously pled guilty
but not yet been sentenced, one point is added to his
criminal history for each such plea. See U.S.S.G.
§§ 4A1.1(c), 4A1.2(a)(4). The Probation Office
therefore concluded that Murray's criminal history score
was in fact 2 -- not 0 as in the plea agreement -- which
placed him in Criminal History Category II, rather than in
Category I as contemplated by the agreement. As a result, the
Probation Office calculated a final sentencing range of 27 to
33 months' incarceration, PSR ¶ 103, rather than the
agreement's Estimated Guidelines Range of 24 to 30
months. See U.S.S.G. ch. 5, pt. A (sentencing
table). Both government and defense counsel reviewed the PSR;
neither noted any material inaccuracies. See PSR
also identified "the defendant's youth" -- he
was 24 years old at the time of sentencing -- as a
"factor that may warrant a [downward] variance from the
applicable guideline[s] range." PSR ¶ 130.
Subsequently, the Probation Office recommended a 21-month
sentence to the court. See Sentencing Hearing Tr. 10
the Probation Office's report, each party submitted a
sentencing memorandum to the court. The government affirmed
the PSR's Sentencing Guidelines range of 27 to 33 months.
It did not mention the plea agreement's estimated range
of 24 to 30 months, nor did it call to the court's
attention the fact that the difference in ranges was due to
counting, for criminal history purposes, the Superior Court
convictions resulting from the plea agreement. Finally, based
on the § 3553(a) factors, the government asked the court
to sentence Murray to the top of the (new) range: 33 months.
See Government's Mem. in Aid of Sentencing 8-13
counsel submitted a short sentencing memorandum as well. Like
the government's memorandum, Murray's did not call
the court's attention to the difference between the plea
agreement's Estimated Guidelines Range and the PSR
calculation. Instead, defense counsel merely cited
Murray's youth and need for further education and
vocational training as support for a variance below the
sentencing range --specifically, a sentence of 24 months.
Def. Murray's Sentencing Mem. 1-2 (J.A. 48-49).
sentencing hearing took place on January 6, 2017. The court
began by explaining its Sentencing Guidelines calculations.
It noted that, at the time of the plea, Murray had no
previous criminal convictions but had since pled guilty in
two D.C. Superior Court cases. Sentencing Hearing Tr. 6 (J.A.
76). Based on those two pleas, the court calculated that
Murray had two criminal history points, which put him in
Criminal History Category II. Id. With an offense
level of 17 and a Category II criminal history, the court
(like the PSR) calculated the Sentencing Guidelines range as
27 to 33 months. Id. When asked whether that range
was correct, both the government and Murray's attorney
agreed that it was. Id. at 6-7 (J.A. 76-77).
noting the Probation Office's recommendation of 21
months' imprisonment, the court invited the government to
speak. Following an extended allocution, the government
repeated the 33-month recommendation it had presented in its
counsel then addressed the court. He did not note that the
new sentencing range exceeded the plea agreement's
Estimated Guidelines Range, nor did he object to the
government's recommendation on the ground that it was
above that range. Instead, counsel rested on his previously
filed memorandum requesting a downward variance of 24
months' incarceration. Sentencing Hearing Tr. 32 (J.A.
102). Having heard from both parties, the court accepted the
government's recommendation and sentenced Murray to 33
months in prison.
the sentencing, Murray's lawyer moved to withdraw. The
lawyer explained that, in a post-sentencing meeting, Murray
"became upset at Counsel's low-key approach at the
Sentencing Hearing, and expressed his displeasure." Mot.
for Withdrawal of Counsel 2 (J.A. 67). Appellate counsel was
contacted on January 25, 2017, and Murray filed this appeal
the same day.
raises two contentions on appeal. First, he asserts that the
government breached the plea agreement between the parties,
and that he is therefore entitled to resentencing. Second, he
argues that his trial counsel provided constitutionally
ineffective assistance in relation to that breach.
interpreting the terms of a plea agreement, we look to
principles of contract law. In evaluating whether a plea
agreement has been breached, we look to the reasonable
understanding of the parties and construe any ambiguities in
the agreement against the government." United States
v. Henry, 758 F.3d 427, 431 (D.C. Cir. 2014) (citations
omitted). But because Murray raises his claim of breach for
the first time on appeal, w e can review it only for plain
error. See Puckett v. United States, 556 U.S. 129,
134 (2009); United States v. King-Gore, 875 F.3d
1141, 1144 (D.C. Cir. 2017). Meeting that standard requires
satisfying four prongs: "First, there must be an error
or defect . . . . Second, the legal error must be clear or
obvious, rather than subject to reasonable dispute. Third,
the error must have affected the appellant's substantial
rights, which in the ordinary case means he must demonstrate
that it affected the outcome of the district ...