F IL E D

United States Court of Appeals

Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S

October 27, 2006

T E N T H C IR C U IT

Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA ,

Plaintiff - Appellee ,
v.

No. 05-6082

KELVIN B. SCOTT, JR.,

Defendant - Appellant .

O R D E R D EN Y IN G PE TIT IO N FO R PA N EL R E H EA R IN G

Before K E L L Y , Circuit Judge, H O L LO W A Y and E B E L , Senior Circuit Judges.

The United States has filed a petition for panel rehearing. The motion is
denied. The petition has, however, brought to the courts attention two errors in the
published opinion which the court will correct. Accordingly, the attached opinion
is to be filed and substituted for the opinion originally filed on July 31, 2006. IT IS
SO O RD ER ED .
Entered for the court,

Elisabeth A. Shumaker
Clerk of Court

F IL E D

United States Court of Appeals

Tenth Circuit
PUBLISH

July 31, 2006

U N IT E D ST A T E S C O U R T O F A PP E A L S
Elisabeth A. Shumaker
Clerk of Court

T E N T H C IR C U IT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
v.

No. 05-6082

KELVIN B. SCOTT, JR.,

Defendant - Appellant.

A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
FO R T H E W E ST E R N D IST R IC T O F O K L A H O M A
(D .C. No. 04-CR -75-F)

Sanford C. Coats, Assistant United States Attorney (and John C. Richter, U nited
States Attorney, on the brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee
David Autry, Oklahoma City, Oklahoma, for Defendant - Appellant

Before K E L L Y , Circuit Judge, H O L LO W A Y and E B E L, Senior Circuit Judges.

H O L LO W A Y , Senior Circuit Judge.

Defendant-Appellant K elvin B. Scott, Jr., appeals his sentence imposed

follow ing a plea of guilty to one count of transportation of a juvenile in interstate
comm erce for the purpose of prostitution in violation of 18 U.S.C. 2423(a).

Following the sentencing hearing, the district court sentenced M r. Scott to 120
months imprisonment and three years supervised release. O n appeal, M r. Scott
contends that the district court erred in: (1) retroactively applying Booker v. United
States, 125 S.Ct. 738 (2005), in violation of ex post facto principles; in (2) applying
vulnerable victim and leadership sentencing enhancements under U.S.S.G .
3A 1.1(b)(1), 3B1.1(c); and in (3) not analyzing the applicability of these
sentencing enhancements under a reasonable doubt standard. He also contends that
(4) the district courts sentence of 120 months is unreasonable under Booker and 18
U.S.C. 3553(a); and (5) the government breached the plea agreement and waived
any arguments in support of a sentencing increase due to its failure to object to the
presentence report (PSR).
W e have jurisdiction granted by 28 U.S.C. 1291 and 18 U.S.C. 3742(a).
W e are convinced that the government did breach the plea agreement with
Defendant-Appellant and accordingly we must reverse and remand for resentencing.

I
A s the parties anticipated in the plea agreement, the base offense level was
determ ined to be 19. The defense admitted that two increases were applicable tw o
levels because the victim was between ages 12 and 16, and four levels because fraud
had been used to entice the victim into prostitution. The government agreed to a tw o

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level decrease for acceptance of responsibility, resulting in an offense level of 23.

That offense level, with defendants criminal history category of I, resulted in a
presumptive guidelines range of 46 to 57 months.
W hen the presentence report was issued, it adopted these admissions and
agreements of the parties. The report concluded that the sentencing range was as
anticipated by the parties, 46 to 57 months, because the probation office found no
information to warrant any additional adjustments, and no evidence suggesting that
a departure in either w ay would be appropriate. The government did not object to
the report, and defendants only objections were minor.

One of defendants

objections w as sustained by the court. None of them is at issue now.

The district judge w as clearly unsatisfied, and he issued three orders before
the sentencing hearing. The first order alerted the parties that the court wanted to
consider the possibility of offense level increases for a vulnerable victim and for a
leadership role in the offense. The governm ent responded by filing a paper styled
G overnments M otion For Upward Departure and Sentencing M emorandum. In
this filing, the government advocated offense level increases on the bases suggested
by the court that the victim was unusually vulnerable and that defendant had played
a leadership role in the offense and also argued for an upward departure from the
sentencing range resulting from application of the Guidelines. The courts next order
came right after Booker and invited briefing on that decision, as well as discussing

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the state of the record and some relevant court decisions on the two adjustments that
the judge had brought up in the earlier order.

The third of these orders was very

brief and merely informed the parties that the judge was considering exercising his
newly granted discretion to impose a sentence longer than that which had been
calculated under the advisory guidelines.
At sentencing, the court rejected defendants argument that the Booker remedy
(Justice Breyers opinion making the guidelines advisory only) could not be applied
to him because of due process ex post facto considerations. The court also held that
the facts supporting sentence enhancements need only be proved by a preponderance
of the evidence. The government produced testimony from the case agent regarding
the offense conduct. The judge then found that the victim was especially vulnerable
and that another prostitute had participated in the offense conduct. The latter finding
was a necessary predicate for the courts finding that defendant had played a
leadership role in the offense. These findings increased the advisory guidelines
range from 46-57 months to the range of 70-87 months. The court rejected the
governments argument for an upw ard departure under U.S.S.G. 5K2.4, finding that
the fraud used to inveigle the victim into prostitution had already been taken into
account in an admitted offense characteristic.
Even though the judge rejected the governments argument for upward
departure under the guidelines, he exercised his discretion under the now advisory

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guidelines scheme to im pose a sentence of 120 months, 38% higher than the top of
the adjusted guidelines range.

II
A
As we demonstrate below, upon consideration of the record of the proceedings
concerning the plea agreement, we are convinced that the government breached the
plea agreement. It is w ell settled that we must interpret the agreement according to
the defendants reasonable understanding of its terms. See, e.g., United States v.
Hand, 913 F.2d 854, 856 (10th Cir. 1990); United States v. Greenwood, 812 F.2d 632,
635 (10th Cir. 1987). The plea agreement provided that based upon the information
that is known to the parties on the date that this agreement is executed, the positions
they expect to take at sentencing with respect to the U nited States Sentencing
Guidelines will include that: (1) the offense occurred before April 30, 2003; (2) the
offense involved a commercial sex act and the use of coercion; (3) the victims age
w as between 12 and 16 years; and (4) the defendant should receive a 2 level
downward adjustment for acceptance of responsibility. App. of Defendant-Appellant
at 69-70.
Defendant contends that the agreement was breached because the governments
agreement to these terms clearly implied that the government would not argue for

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other sentence enhancing factors, or at least that such an inference should be draw n
because that was his reasonable expectation from the agreement. We agree that this
is the plainly reasonable interpretation of the agreement.

B
Despite its obligation not to do so, the government did argue for additional
enhancements and therefore clearly breached the agreement.

Thus, in the

Governments M otion for Upward Departure and Sentencing M emorandum, App.

of Defendant-Appellant at 125-134, the government asserted that the especially
vulnerable victim enhancement should be applied, and defendants sentence should
be enhanced accordingly. Id. at 132. And the same submission said, as to the
application of an enhancement for a leadership role in the offense, that the evidence
shows that defendant was a leader of a criminal enterprise under 3B1.1(c). Id.
at 133. At the sentencing hearing, the prosecutor asserted that the Court should
adjust the defendants points to enhance the offense level for the victims
vulnerability and that the offense level also should be adjusted upwardly for a
leadership role in the offense. (Transcript of Sentencing Proceedings of M arch 4,
2005 at 69-70.)
The government did reserve the right in the plea agreement to take other
positions if new facts were developed. But that did not happen, and the government

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on appeal does not so contend. Instead, the government argued below in favor of the
enhancements that the district judge had suggested sua sponte especially vulnerable
victim and leadership role in the offense and even went beyond that to argue for an
upward departure, an argument that the district judge rejected. On appeal, despite the
fact that no new facts were developed, the government expressly admits that the
prosecutor did argue additional positions for the enhancements at the sentencing
hearing.

Brief of Plaintiff-Appellee at 43 (The fact that the government took

additional positions at the sentencing stage of these proceedings in no way breached

the plea agreement.). 1 See also id. at 47.
The plea agreement was clearly breached and the sentence before us should not
be affirmed. The fundamental and dispositive principle was stated by Chief Justice
Burger: [W]hen a plea rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971)
(emphasis added). Further, in fulfilling its promise, the government cannot rely
upon a rigidly literal construction of the language of the agreement . . . . United

The government asserts that it was only precluded from making arguments
that would conflict with the express provisions of the plea agreement. This position
is contrary to the teaching of Hand and Greenwood that plea agreements must be
construed consistently with the defendants reasonable understanding of the
agreements terms. As noted, the government cannot rely upon a rigidly literal
construction of the language of the agreement . . . . Hand, 913 F.2d at 856.
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States v. Hand, 913 F.2d 854, 856 (10th Cir. 1990) (quoting United States v.
Shorteeth, 887 F.2d 253, 256 (10th Cir. 1989)). 2
III
A
W e turn to arguments and authorities which are offered as justifications for the
governments conduct. The government has argued that its absence of objections to
the PSR did not preclude the government from providing the district judge w ith
applicable facts and law , nor was the government barred from arguing for certain
enhancements not in the initial PSR. See Brief of Plaintiff-Appellee at 47. However,
as noted the government merely reserved the right in the plea agreement to take other
positions if new facts were developed, and that did not happen. App. of DefendantAppellant at 70. 3
2

W e do not suggest that the government should have ignored the order from
the district court for briefing on the additional enhancem ents. However, the
government could have responded without breaching either the plea agreement or its
duty of candor to the court by providing accurate answers to the courts queries and
explaining its obligations under the plea agreement without expressly arguing for the
upward enhancements.
3

The relevant portion of the plea agreement states:

However, subject to the term s and conditions of this plea agreement

(particularly the conditions concerning [U.S.S.G.] 1B1.8 set out in
paragraph 11), the United States expressly reserves the right to take
positions that deviate from the foregoing stipulations, agreements, or
recommendations in the event that material credible evidence requiring
such a deviation is discovered during the course of the U nited States
(continued...)
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W e note also that the district judge at the sentencing proceedings of M arch 4,
2005, stated that the purported default by the government in not objecting to the PSR
applies only to the factual narrative in the PSR . . . which does not apply with
respect to the probation officers conclusion as to the applicability of possible
enhancements. (App. of Defendant-Appellant at 180.) In other words, the district
judge said that the government could respond to the judges request because he was
not contemplating any supplementation of the facts underlying the decisions to be
made. The judge had explicitly asked for advocacy. O n appeal the government
repeats what the district judge said at the sentencing hearing.

M oreover the

government asserts that it was not precluded from arguing for the additional
enhancem ents:
[T]he governments absence of objections did not preclude it from
providing the district court with the applicable facts and law, and
arguing for sentencing enhancements not contained in the original PSR.
Brief of Plaintiff-Appellee at 47 (em phasis added). Thus, the government admits
arguing for the additional sentencing enhancements which was a clear violation of the
implicit obligation of the government not to do so.
W e are also persuaded by the analysis in United States v. Allen, 434 F.3d, 1166

(...continued)
investigation subsequent to the signing of this agreement or arises from
sources independent of the U nited States, including the U .S. Probation
Office.

Id.
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(9th Cir. 2006), which is quite similar to Hand in the circumstances and disposition
of the issue of whether the prosecution breached the plea agreement. As in Hand, the
prosecutor in Allen scrupulously abided by the terms of the agreement, supplying
factual information to the court on request, but adhering to her agreement to
recomm end a certain offense level in spite of additional facts which would have
supported a higher offense level. The N inth Circuit cautioned that an attempt to
influence the sentencing judge to impose a higher sentence than the government had
agreed to recommend in a plea agreement w ould have violated the agreement. See
also United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000), where the prosecutor was
careful not to argue for an enhancement in responding to the district courts request
for information.
In sum, we are persuaded that under the principles of Santobello and its
progeny we must reverse and remand for resentencing since the fault rests on the
government. See Santobello, 404 U.S. at 263.
Since we must reverse on this basis, we do not reach other issues..
IT IS SO O R D E R E D .

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