Appeal from the April 15, 2008, judgment of the United States District Court for the Eastern District of New York (Dora L. Irizarry, District Judge), sentencing the defendant to 262 months' imprisonment upon his plea of guilty to narcotics offenses. The defendant contends that he should be permitted to withdraw his plea because at sentencing the prosecutor advocated a Guidelines sentencing range higher than the range estimated in the plea bargain. Judge Newman concurs with a separate opinion.
Submitted: October 19, 2009
Before: NEWMAN, CALABRESI, and KATZMANN, Circuit Judges.
This criminal appeal challenges a sentence for a narcotics violation on the ground that the Government violated the plea agreement by recommending a sentence higher than the range estimated to be applicable at the time of the plea. The appeal also challenges the reasonableness of the sentence, which included 262 months' imprisonment. Carlos MacPherson appeals from the April 15, 2008, judgment of the District Court for the Eastern District of New York (Dora L. Irizarry, District Judge). Applying plain error review to the challenge to the plea agreement, see Puckett v. United States, 129 S.Ct. 1423, 1428-33 (2009), we conclude that, if any error occurred with respect to the plea agreement, it was not plain error, and that the sentence survives review for reasonableness. We therefore affirm.
MacPherson and his co-defendants were charged in a three count indictment with various narcotics offenses. Pursuant to a plea agreement, MacPherson pled guilty to one count, which charged him with conspiring to import into the United States 100 grams or more of heroin and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 963, 960(a)(1), 960(b)(2)(A), and 960(b)(1)(B)(ii). In conformity with United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), the Government included in the plea agreement its estimate of a likely Guidelines sentencing range. The agreement stated, in pertinent part:
2. . . . The Office will advise the Court and the Probation Department of information relevant to sentencing, including criminal activity engaged in by the defendant, and such information may be used by the Court in determining the defendant's sentence. The Office estimates the likely adjusted offense level under the Guidelines to be level 32 [calculated from base offense level 34, see U.S.S.G. § 2D1.1(c)(3), less 2 levels for acceptance of responsibility, see id. § 3E1.1(a)]. This level carries a range of imprisonment of 121 to 151 months [in Criminal History Category I]. If the defendant pleads guilty on or before June 20, 2007, the government will move the Court, pursuant to U.S.S.G. § 3E1.1.(b), for an additional one-level reduction, resulting in an adjusted offense level of 31. This level carries a range of imprisonment of 108 to 135 months, assuming that the defendant will be sentenced within Criminal History Category I. Because the applicable statutory mandatory minimum sentence is ten years['] imprisonment, the applicable Guidelines range is expected to be 120 to 135 months. The defendant stipulates that his sentence should be calculated based on a drug type and quantity of fifteen kilograms or more of a substance containing cocaine and waives any right to a jury trial in connection with such issue.
3. The Guidelines estimate set forth in paragraph 2 is not binding on the Office, the Probation Department or the Court. If the Guidelines offense level advocated by the Office, or determined by the Probation Department or the Court, is different from the estimate, the defendant will not be entitled to withdraw the plea. . . .
5. The Office agrees that: . . . based upon information now known to the Office, it will
b. take no position concerning where within the Guidelines range determined by the Court the sentence should fall; and
c. Make no motion for an upward departure under the Sentencing Guidelines.
If information relevant to sentencing, as determined by the Office, becomes known to the Office after the date of this agreement, the Office will not be bound by paragraphs 5(b) and 5(c).
At the plea hearing the District Court, after ascertaining that the defendant understood the rights he was giving up by pleading guilty, stated:
Let me just also remind you that by entering into this [plea] agreement you have stipulated that your sentence should be calculated based on the drug type and quantity of 15 kilograms or more of a substance containing cocaine and that you have waived any right to a jury trial in connection with any such issue, do you understand that?
The defendant answered, "Yes."
The Court then discussed the Guidelines and stated: The bottom line is that until the date of sentencing when we get a presentence report, as I said before, and I hear from you, your lawyer and from the government, we will not know with any certainty what the guidelines will be or whether there will be grounds to depart from them or whether the Court will impose a non-guideline sentence, do you understand that?
The defendant answered, "Yes."
In response to the Court's inquiry, the prosecutor stated that "the government estimates that the defendant would fall within adjusted offense level 31" with a sentencing range, because of the ten year mandatory minimum, of 120 to 135 months. The Court then ascertained that the defendant understood that "these are all estimates that are not binding on the government, Probation or the Court" and that "if this estimate is wrong, that you will not be permitted to withdraw your plea of guilty."
The Court then turned to the specifics of Count One, reading it verbatim to the defendant, including the references to importing "100 grams or more of a substance containing heroin" and "5 kilograms or more of a substance containing cocaine." The defendant explicitly acknowledged repeatedly traveling to Peru to make arrangements to purchase heroin ...