Eighth Circuit: Government Breached Plea Agreement by Relying on Pre-Plea Conduct to Dispute Acceptance of Responsibility Despite Acknowledging Defendant Qualified for Credit in Agreement
by Richard Resch
The U.S. Court of Appeals for the Eighth Circuit held the Government breached its plea agreement with the defendant by advocating against an agreed-upon reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
Tommy Collins pleaded guilty on February 7, 2020, to sex trafficking of children. For six months while detained pending trial, Collins called Victim One several times with instructions on what to say to law enforcement and with questions about Minor Victim B’s whereabouts. He also called S.M., who had a state court no-contact order against Collins, 46 times. S.M. was expected to testify for the Government at Collins’ trial.
The plea agreement stipulated that the Government would refrain from recommending a Guidelines enhancement for obstruction. It also agreed to recommend that Collins receive credit for acceptance of responsibility. As per the terms of the plea agreement, the Government reserved “The right to oppose a reduction for acceptance of responsibility if after the plea proceeding Defendant obstructs justice … or otherwise engages in conduct not consistent with acceptance of responsibility.” The parties also retained the ability to “make whatever comment and evidentiary offer they deem appropriate at the time of sentencing … provided that such offer or comment does not violate any other provision of this Plea Agreement.”
The U.S. District Court for the Southern District of Iowa directed the Government to submit an offense conduct statement to the probation office. In its statement, the Government included a summary of Collins’ post-indictment conduct regarding his phone calls to S.M. and Victim One. The statement recommended credit for acceptance of responsibility and no obstruction enhancement.
The District Court entered a federal protective order prohibiting Collins from contacting S.M. at the request of the Government. Nevertheless, Collins again called S.M. on two occasions. In response, the Government submitted a revised offense conduct statement to the probation office withdrawing its recommendation for a reduction for acceptance and in favor of the obstruction enhancement. Collins objected, arguing that the revised statement violated the plea agreement. The Government then withdrew its obstruction recommendation but insisted that Collins’ pre-plea conduct was still relevant for general sentencing purposes, maintaining its opposition to an acceptance of responsibility reduction.
The Presentence Investigation Report (“PSIR”) proposed an enhancement for obstruction of justice and no credit for acceptance of responsibility. Collins objected to almost all facts in the PSIR. The Government responded by detailing Collins’ allegedly obstructive conduct, which included him calling S.M. four times after entering a plea and the federal protective order entered against him. The Government renounced an intent to seek an obstruction enhancement, but it argued that Collins’ conduct forfeited credit for acceptance of responsibility because he falsely denied relevant conduct and repeatedly called S.M. and Victim One.
At sentencing, the District Court stated it was going to hold the Government to the plea agreement. It rejected an enhancement for obstruction. It also found Collins did not breach the plea agreement, and Collins withdrew his objections to most of the facts in the PSIR. The Government then agreed to not oppose a two-level reduction but declined to move for a discretionary three-level off based on the late withdrawal of the objections.
A two-level off reduction gave Collins a 210-262-month prison term under the Sentencing Guidelines. The District Court varied downward an additional level to a range of 188-235 months and sentenced Collins to 210 months in prison. He appealed, arguing the Government breached the plea agreement.
The Court ruled that the Government breached the plea agreement by relying on Collin’s pre-plea conduct to dispute acceptance of responsibility. In reaching its decision, the Court cited to United States v. Mosley, 505 F.3d 804 (8th Cir. 2007), in which the Eighth Circuit interpreted a plea agreement that included an acknowledgment by the Government “that as of the date of this agreement, defendant appears to qualify for a two-level downward adjustment for acceptance of responsibility” and a provision that allowed the Government to challenge the adjustment “should the defendant subsequently fail to continue to accept responsibility.”
Following the defendant’s guilty plea in Mosley, the Government discovered that she lied during previous interviews with law enforcement, and she submitted false information to the probation office. The Government argued that she forfeited the right to the acceptance of responsibility credit because of her behavior both before and after her guilty plea.
The Mosley Court rejected the Government’s position and held that it breached the plea agreement. It explained that the Government’s argument that the defendant failed to accept responsibility for her behavior prior to the execution of the plea agreement conflicts with the acknowledgements and terms contained in the plea agreement, whereby the Government induced the defendant to enter a guilty plea in exchange for its promise to take the position that she did, in fact, accept responsibility. See Mosely. Similarly, the Mosley Court rejected the argument that the defendant’s post-plea behavior of failing to accept responsibility permits the Government to introduce pre-plea behavior to challenge the acceptance of responsibility adjustment. See Id.
Turning to the present case, the Court stated that the Government, like in Mosley, impermissibly used Collins’ pre-plea conduct to challenge his acceptance of responsibility. But the plea agreement prohibits this, the Court explained, because the Government agreed, as per the terms of the plea agreement, that Collins qualifies for the acceptance of responsibility reduction.
The Court then addressed Collins’ post-plea conduct and the provision in the plea agreement that reserves to the Government “The right to oppose a reduction for acceptance of responsibility if after the plea proceeding Defendant obstructs justice … or otherwise engages in conduct not consistent with acceptance of responsibility.” [emphasis supplied] The Court noted that the language is ambiguous, but as it stated in Mosley, “[t]he more natural reading” of the language “is that the government may contest the adjustment based on subsequent acts of the defendant that are inconsistent with the previous agreement that the defendant accepted responsibility.” [emphasis in original] The Court explained that although the language in question can arguably be interpreted as allowing introduction of pre-plea conduct in challenging Collins’ acceptance of responsibility, “we must construe ambiguity in a plea agreement against the government.” See United States v. Lewis, 673 F.3d 758 (8th Cir. 2011).
Thus, the Court ruled that the Government breached the plea agreement. The Court explained that there are two possible remedies when the Government breaches a plea agreement: (1) remand for specific performance or (2) withdrawal of the guilty plea. United States v. Van Thournout, 100 F.3d 590 (8th Cir. 1996). It stated that the District Court is in a better position than it is to determine which remedy is most appropriate.
Accordingly, the Court vacated Collins’ sentence and remanded to the District Court to determine the proper remedy. See: United States v. Collins, 25 F.4th 1097 (8th Cir. 2022).
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United States v. Collins
|Cite||25 F.4th 1097 (8th Cir. 2022)|
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United States v. Lewis
|Cite||673 F.3d 758 (8th Cir. 2011)|
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