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United States v. Murray

United States Court of Appeals, District of Columbia Circuit

July 31, 2018

United States of America, Appellee
Marquete Murray, also known as Twin, also known as Quete, Appellant

          Argued December 15, 2017

          Appeal 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.

          Eric 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, Circuit Judges.


          Garland, Chief Judge

         Appellant 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 claimed breach.

         We 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.


         The 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 pass.

         On July 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.[1] 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.

         The 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 Category I:

Based upon the information now available to [the U.S. Attorney's] Office, your client [Murray] has no criminal convictions.
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 increase.

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. 26).

         The 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).

         Finally, 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).[2]

         On 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.

         On December 1, 2016, the Probation Office released a Presentence Investigation Report (PSR) regarding Murray.[3] 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.

         The two 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 addendum.

         The 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 (J.A. 80).

         Following 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 (J.A. 42-47).

         Murray's 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).

         The 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).

         After 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 sentencing memorandum.

         Murray's 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.

         Following 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.[4]

         Murray 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.


         "In 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 ...

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