In United States v. Rivera, the Second Circuit (Jacobs, Chin, and Nathan) affirmed the conviction and sentence of Victor Rivera, who pleaded guilty to one count of Hobbs Act robbery conspiracy in violation of 18 U.S.C. § 1951.  The Court agreed with Rivera’s argument on appeal that the government improperly relied on Rivera’s prior convictions at sentencing in violation of the express terms of Rivera’s plea agreement but nevertheless ruled that reversal was not warranted under plain error review.

The Court further rejected Rivera’s arguments that the government improperly characterized Rivera as a “leader” of the conspiracy, that Rivera’s sentence was procedurally and substantively unreasonable, and that remand was warranted so Rivera could be resentenced under the amended Sentencing Guidelines.

Background

Between October 2019 and November 2020, Victor Rivera participated in eleven robberies as part of a robbery crew who stole luxury watches and other jewelry from victims outside their homes. 

On January 19, 2022, Rivera pleaded guilty to one count of Hobbs Act robbery conspiracy in violation of 18 U.S.C. § 1951.  Rivera’s plea agreement contained a stipulated Guidelines range that was “[b]ased upon the information now available” to the government, and that the parties agreed not to contest at sentencing.  This Guidelines range was 168 to 210 months’ imprisonment, based partly on Rivera having three criminal history points, which placed him in Criminal History Category II.  The parties agreed that “neither party [would] seek any departure or adjustment,” nor “in any way suggest that” the sentencing court consider a departure or adjustment from that stipulated range, unless they were permitted to under the agreement.  The agreement permitted the parties to seek a variance based upon the sentencing factors under 18 U.S.C. § 3553(a), or “based upon new information that the defendant's criminal history category [was] different from that set forth” in the agreement.

On April 8, 2022, the Probation Office issued its final Presentence Investigation Report, which included three convictions that Rivera had obtained in 2012 and 2013 in Puerto Rico, and that had not been accounted for in the plea agreement.  Accordingly, Probation calculated that Rivera had ten—rather than three—criminal history points, placing him in Criminal History Category V.  In light of this change, Probation calculated that Rivera’s revised Guidelines range was 235 to 240 months’ imprisonment, near the statutory maximum for Hobbs Act conspiracy.  

On September 13, 2022, Rivera appeared for sentencing.  The government argued that the court should apply Probation’s revised Guidelines range and impose a within-Guidelines sentence, explaining that it was previously unaware of Rivera’s “extensive criminal history” in Puerto Rico.  Defense counsel agreed that the applicable Guidelines range was 235 to 240 months, but requested that Rivera receive a 96-month sentence, arguing that Rivera entered into the plea agreement with the understanding that “the sentencing guideline range was what the [government] represented it to be.”  The sentencing court agreed with the government and imposed a sentence of 235 months’ imprisonment, to be followed by three of years of supervised release.

The Opinion

On appeal, Rivera argued that the government breached the terms of his plea agreement by relying on his Puerto Rico convictions at sentencing, and also by characterizing Rivera as a “leader” of the robbery group in its sentencing submissions.  The Court agreed with Rivera’s argument regarding the government’s use of his Puerto Rico convictions but nonetheless affirmed Rivera’s sentence, finding that the government’s breach of Rivera’s plea agreement was not sufficiently clear to warrant reversal on plain error review.

First, the Court held that the standard of review was plain error, because at sentencing, Rivera’s counsel agreed that the applicable Guidelines range was 235 to 240 months, and “never specifically contended that any provision of the plea agreement was breached.”  Rivera, 115 F.4th at 146-47.

Second, the Court held that Rivera’s convictions did not constitute “new information” under the plea agreement, and so the government broke its promise to abide by the stipulated Guidelines range at trial.  Courts look to the “‘precise terms’ of a plea agreement to ‘discern what the reasonable understanding and expectations of the defendant were as to the sentence for which he had bargained.’”  Id. at 147 (quoting United States v. Wilson, 920 F.3d 155, 163 (2d Cir. 2019)).  Accordingly, the Court analyzed whether the meaning of “available” under the agreement included information beyond what was known to the government at the time of drafting.  The Court determined that the accurate information about Rivera's criminal history was “accessible” and could have “been ‘obtained’ by the government at the time of the plea,” rendering it available to the government.  Id. at 148.

Third, the Court found that Rivera’s prior convictions were previously accessible to the government:  during sentencing, the government explained that it had reviewed Rivera’s rap sheet when preparing the plea agreement.  This rap sheet contained information about Rivera’s arrests in Puerto Rico but did not say whether these arrests had resulted in convictions.  The Court held that “[t]he information about these arrests . . .  should have prompted further investigation on the government's part into whether the arrests resulted in convictions.”  Id. at 150.  The Court further recognized that these convictions were unsealed and a matter of public record, and so if the government had done due diligence, the convictions would have been uncovered.

Ultimately, however, the Court held that the government’s breach was not “sufficiently clear or obvious so as to be plain error.”  Id. at 152.  To constitute plain error, an “error must be so plain that ‘the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it.’” United States v. Villafuerte, 502 F.3d 204, 209 (2d Cir. 2007).  Because the Second Circuit had not yet issued guidance on the meaning of “available” in plea agreements, the Court held that it was not plainly obvious to the trial judge that the terms of Rivera’s plea agreement prohibited the government from relying on the Puerto Rico convictions at sentencing.  Accordingly, the Court declined to remand Rivera’s judgment based on the government’s failure to account for these convictions.

The Court also rejected Rivera’s argument that the government breached his plea agreement by describing him as a leader of the conspiracy, explaining that the government was permitted to present such evidence to the district court under the § 3553(a) factors.  In addition, the Court rejected arguments from Rivera that his sentence was procedurally and substantively unreasonable, finding that the sentencing judge properly accounted for the seriousness of Rivera’s crimes.  Finally, the Court rejected Rivera’s argument that his case should be remanded so that he could be resentenced under a recent amendment to the Sentencing Guidelines, because any such argument “must be raised before the district court in the first instance.”  Rivera, 115 F.4th at 154.

Discussion

The Court’s opinion in Rivera establishes that the government must do its due diligence the first time around:  if the government fails to account for a defendant’s prior convictions in a plea agreement (even though those convictions could have been discovered through a reasonable search), it should not later urge the inclusion of those convictions in the Guidelines calculation, thereby advocating for a higher sentence than the one to which the government stipulated.  And while the Court chose not to vacate Rivera’s sentence based on the plain error doctrine (prior to the decision, there had been no guidance on the issue), the panel gave a clear instruction to the government that it may not employ similar tactics in the next case.

The Rivera decision also reflects a choice by the Second Circuit to emphasize the government’s critical role in ensuring that the plea-bargaining process is equitable.  In dicta, the Court acknowledged that “the goals of plea bargaining are best served when the defendant's criminal history is accurately reflected in the plea agreement,” given that “over 97% of defendants in federal cases plead guilty.”  Id. at 151.  In doing so, the Court acknowledged the inherent power imbalance between the government and defendants who have entered into plea agreements, and the necessity of ensuring that defendants are fully aware of the consequences of their plea agreements, because in entering them, defendants are giving up their constitutional right to a trial.    

Here, while one might wonder why Rivera did not himself recognize the error in the presentation of his criminal history, the government has access to extensive criminal justice records and it should have known that Rivera’s true criminal record was understated.  Rivera may well have decided to plead guilty in part based on the stipulated sentencing range, and was likely surprised that he faced a sentence close to the statutory maximum.  At the same time, even without the government’s breach of the plea agreement, the Probation Office’s presentence investigation report set forth the Puerto Rico convictions, and so it is unlikely that the district court would have ignored this new information.  Still, absent the government’s advocacy, it is possible that the district court might have imposed a shorter sentence—giving the defendant some benefit for having entered into the plea agreement.  By advocating for a higher range than the one to which it stipulated, the government helped slammed the door on this possibility.

Finally, as the Rivera Court mentioned, plea agreements often include stipulated guidelines ranges.  While Rivera established that information that is “accessible” to the government must be accounted for in plea agreements, it did not define the scope of “accessible” except as applied to the facts of Rivera’s case.  It seems as if “accessible” does not mean that the information was sitting in the government’s files; rather, it puts the government on some form of inquiry notice.  It will be interesting to see how the jurisprudence surrounding this term develops in light of Rivera.