US v. Gregory Obey
Filing
PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion--denying Motion to dismiss appeal [999492499-2]. Originating case number: 5:12-cr-00268-D-1. [999608275]. [14-4585]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4585
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY DEVON OBEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:12-cr-00268-D-1)
Argued:
May 12, 2015
Decided:
June 24, 2015
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Thacker joined.
ARGUED: Scott L. Wilkinson, SCOTT L. WILKINSON & ASSOCIATES,
P.C., Raleigh, North Carolina, for Appellant. Jennifer P. MayParker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United
States Attorney, Yvonne V. Watford-McKinney, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
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DIANA GRIBBON MOTZ, Circuit Judge:
Gregory Devon Obey pled guilty, pursuant to a written plea
agreement, to distribution of cocaine and aiding and abetting in
its
distribution.
months’
The
imprisonment,
district
and
court
directed
sentenced
that
this
him
to
sentence
consecutive to any other State or Federal sentence.”
240
“run
On appeal,
Obey contends that the Government breached the plea agreement in
making
court
its
sentencing
lacked
the
recommendation,
authority
to
and
that
order
consecutively to any future sentence.
that
his
the
district
sentence
run
Finding no reversible
error, we affirm.
I.
In January 2013, a federal jury convicted Obey of multiple
counts involving the distribution of cocaine and cocaine base.
The
district
imprisonment.
court
sentenced
him
to
a
total
of
540
months’
While Obey’s appeal was pending, the Government
filed an unopposed motion to remand the case for a new trial
because
of
a
Giglio
v.
United
States,
405
U.S.
150
(1972),
error.
We granted the motion, vacated Obey’s convictions and
sentence, and remanded the case to the district court for a new
trial.
On
remand,
Obey
entered
a
plea
of
guilty
to
cocaine
distribution and aiding and abetting in violation of 21 U.S.C.
2
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§ 841(a)(1) and 18 U.S.C. § 2.
In a written plea agreement,
Obey waived his right to appeal and the Government agreed to
recommend an eighteen-year term of imprisonment.
At the plea
hearing,
entered
the
district
court
found
that
Obey
had
his
guilty plea freely and voluntarily.
At
the
sentencing
hearing
in
July
2014,
the
Government
requested that the court impose an eighteen-year sentence, as
stated in the plea agreement.
The prosecutor explained that
“extensive plea negotiations” between the parties had resulted
in
the
agreed-upon
recommendation.
When
the
district
court
asked about a pending state murder charge, mentioned in Obey’s
presentencing report, the Government responded that the state
case was scheduled for trial in August 2014. 1
The prosecutor
then addressed the 18 U.S.C. § 3553(a) factors, asserting that
Obey,
a
offender,
recidivist,
but
was
reiterating
properly
the
classified
Government’s
as
a
career
recommendation
of
only eighteen years’ imprisonment.
Applying
the
sentencing
factors
to
Obey’s
acts,
the
district court determined that “the Government’s request for a
variance lacks merit.”
The court then imposed a sentence of 240
months’ imprisonment, the statutory maximum, and directed that
1
At oral argument before us, the parties indicated that no
trial took place on that date, and the case is still pending in
state court.
3
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Obey’s sentence “run consecutive to any other State or Federal
sentence, including any unimposed sentence [Obey] might receive”
for
the
pending
state
murder
charge.
Obey
noted
a
timely
appeal.
II.
We
first
address
Obey’s
breached the plea agreement. 2
first time on appeal.
error.
contention
that
the
Government
Obey raises this claim for the
Accordingly, we review it only for plain
Puckett v. United States, 556 U.S. 129, 133-34 (2009).
To prevail, Obey must show that an error occurred, that it was
plain,
and
that
it
affected
his
substantial
rights.
United
States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).
Even if
Obey makes this showing, we will correct the error only if it
“seriously
affect[s]
the
fairness,
reputation of judicial proceedings.”
integrity
or
public
Id. (internal quotation
marks and citation omitted) (alteration in original).
We apply contract law principles when we construe a plea
agreement.
Thus, “each party should receive the benefit of its
bargain” under the agreement.
United States v. Dawson, 587 F.3d
2
Obey’s appeal waiver does not preclude our consideration
of this claim because “[a] defendant’s waiver of appellate
rights cannot foreclose an argument that the government breached
its obligations under the plea agreement.”
United States v.
Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009).
4
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640, 645 (4th Cir. 2009) (internal quotation marks and citation
omitted).
By the same token, however, we will not hold the
Government to promises that it did not actually make in the plea
agreement, for neither party is obligated to “provide more than
is specified in the agreement itself.”
Id. (internal quotation
marks and citation omitted).
An examination of the transcript of the sentencing hearing
reveals that the prosecutor repeatedly urged the district court
to impose the eighteen-year sentence stipulated to in the plea
agreement.
Nevertheless,
Obey
argues
that
the
prosecutor
violated the plea agreement by failing to provide reasons to
support
however,
the
did
reasons.
sentence
not
recommendation.
require
the
Government
The
plea
to
agreement,
provide
any
such
And the Supreme Court has held that the Government is
not obligated to explain its reasons for making a particular
sentencing recommendation unless it agrees to do so in the plea
agreement.
See United States v. Benchimol, 471 U.S. 453, 456
(1985) (per curiam); see also Dawson, 587 F.3d at 645
(“[I]n
enforcing plea agreements, the government is held only to those
promises that it actually made.” (internal quotation marks and
citation omitted)).
Relying on United States v. Brown, 500 F.2d 375 (4th Cir.
1974), and United States v. Grandinetti, 564 F.2d 723 (5th Cir.
1977), Obey further argues that the prosecutor undermined the
5
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plea
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agreement
sentencing
by
implying
recommendation.
involve very different facts.
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personal
Brown
reservations
and
about
Grandinetti,
the
however,
In Brown, although the prosecutor
recommended the sentence stipulated in the plea agreement, he
informed the court that he did “have some problems with” the
sentence when asked if he really “believe[d] in it.”
at 377.
having
500 F.2d
Similarly, in Grandinetti, the prosecutor admitted to
“very
stipulated
serious
sentence,
problems”
stating
with
that
both
he
either its “legality” or “propriety.”
the
was
“not
agreement
too
sure”
and
of
564 F.2d at 725.
Here, by contrast, the prosecutor neither criticized the
terms of the agreement nor expressed doubt about the legality or
propriety of the recommended sentence.
In fact, although the
terms of the plea agreement did not require the prosecutor to
state reasons to support the recommendation, he did just that.
In the course of repeating, no fewer than three times, a request
that the court adopt the recommendation, the prosecutor detailed
why the Government had entered into the agreement.
Thus, the prosecutor explained that the parties had been
involved in “extensive plea negotiations” in reaching the plea
agreement.
He elaborated that in reaching the agreement, the
Government
took
into
account
the
risk
of
retrial,
the
“significant amount” of impeachment evidence available to use
against a cooperating witness at retrial, and that witness’s
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reluctance
remarking
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to
testify.
that
“taking
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And
those
the
prosecutor
matters
into
concluded
by
consideration,
we
agreed to this 18 year sentence, and there’s no real rhyme or
reason for coming to 18 years, but that’s where we ended up in
our plea negotiations and we’re asking the Court to adopt that
recommendation.”
Obey
contends
that
the
“rhyme
or
reason”
statement conveyed the prosecutor’s personal reservations about
the plea agreement.
We disagree.
Viewed in context, the remark
simply explained how the plea negotiations ended up at eighteen
years, as opposed to some other number. 3
For these reasons, we
cannot conclude that the Government breached the plea agreement.
III.
We
next
district
consider
relied
on
3
that
Setser
v.
his
that
the
In
court
ordering
--
consecutively to any future “State or Federal sentence.”
the
in
argument
run
so,
erred
remaining
sentence
doing
court
Obey’s
United
States,
132
Obey additionally argues that the prosecutor “articulated”
his personal reservations about the plea recommendation by
“arguing sentencing factors in favor of a more severe sentence.”
Appellant’s Br. 11.
But in the plea agreement, the Government
retained its right to offer evidence and information related to
sentencing.
As such, it was not a breach of the agreement to
comment on Obey’s background and prior conduct.
Rather, the
prosecutor “had a duty to bring all relevant information about
[Obey] to the court’s attention at the time of sentencing.”
United States v. Perrera, 842 F.2d 73, 75 (4th Cir. 1988).
7
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S. Ct. 1463 (2012).
court
“has
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There, the Supreme Court held a district
authority
to
order
that
the
federal
sentence
be
consecutive to an anticipated state sentence that has not yet
been imposed.”
Id. at 1466.
In reaching that holding, the Setser Court examined the
text of 18 U.S.C. § 3584(a), which addresses a federal court’s
ability
to
order
concurrently.
that
sentences
run
consecutively
or
The statute provides, in pertinent part:
If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively, except
that the terms may not run consecutively for an
attempt and for another offense that was the sole
objective of the attempt.
18 U.S.C. § 3584(a).
speaks
to
the
The Setser Court noted that § 3584(a)
question
of
consecutive
versus
concurrent
sentences only when multiple terms of imprisonment are imposed
at the same time or when the defendant is already subject to an
undischarged term of imprisonment.
Setser, 132 S. Ct. at 1467.
The
Court
provision
does
not
say,
the
explained,
whether
a
federal sentencing court may impose a sentence consecutive to a
state sentence that is anticipated but that has not yet been
imposed.
Id.
Answering this question in the affirmative, the
Court rejected the contention that § 3584(a) allows a district
court to order a consecutive sentence only in one of the two
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“common situations” that the provision explicitly mentions.
at 1470.
read
Id.
Instead, the Setser Court found it “more natural to
§ 3584(a)
as
not
containing
an
implied
‘only,’”
thus
“leaving room for the exercise of judicial discretion in the
situations not covered” by that provision.
Id.
Although Setser holds that a district court may run its
sentence consecutive to an anticipated state sentence, it left
open the question of whether a district court may also order its
sentence to run consecutive to an anticipated federal sentence.
See id. at 1471 n.4 (whether “a district court can enter a
consecutive
an
anticipated
federal sentence” is a question “not before us”).
Indeed, as
the
Ninth
sentencing
Circuit
has
order
noted,
in
the
advance
Supreme
of
Court
suggested
in
dicta that the answer to the latter question might well be “No.”
See United States v. Montes-Ruiz, 745 F.3d 1286, 1291 (9th Cir.
2014) (citing Setser, 132 S. Ct. at 1471 n.4).
Six years prior to Setser, we held, relying on § 3584(a),
that
a
district
court
lacked
the
authority
to
sentence run consecutive to any future sentence.
order
that
a
See United
States v. Smith, 472 F.3d 222, 224 (4th Cir. 2006).
Setser
undoubtedly abrogated Smith as applied to an anticipated state
sentence, but Setser did not abrogate Smith as applied to an
anticipated federal sentence, and may well endorse the Smith
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approach with respect to anticipated federal sentences. 4
In any
event, the holding in Smith prohibiting a district court from
ordering that its sentence run consecutively to an anticipated
federal sentence remains controlling precedent in this circuit.
Relying on it, Obey thus contends that the district court
erred in ordering that his sentence run consecutively to “any
other State or Federal sentence.” (Emphasis added).
But
Obey
court.
did
not
raise
this
contention
before
We agree.
the
district
Accordingly, as Obey conceded at oral argument, we can
only reverse if we conclude that he meets the rigorous plain
error standard.
And although the district court’s order swept
more broadly than Setser authorizes in requiring that Obey’s
sentence
run
consecutive
to
any
future
sentence,
we
cannot
conclude that this error was plain.
For an error to be plain, it must be “clear” or “obvious,”
United States v. Olano, 507 U.S. 725, 734 (1993), at least by
the time of appellate consideration, Henderson v. United States,
133
S. Ct.
1121,
1130
(2013).
That
Setser
leaves
intact
a
portion of the logic and holding in Smith is not so obvious as
4
Emphasizing
the
Setser
Court’s
use
of
the
word
“anticipated,” Obey suggests that Setser’s holding also does not
reach all future state sentences.
Sentences resulting from
proceedings not yet adjudicated are not “anticipated,” he
argues, and so remain unaffected by Setser. We need not resolve
this issue, however, as any error by the district court in
failing to make this distinction was not “plain.”
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to require reversal.
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Until today, no published opinion from
this court had addressed that issue, and the only unpublished
opinion to do so expressly countenanced the district court’s
approach here.
48-49
(4th
See United States v. Mavroudis, 587 F. App’x 46,
Cir.
2014)
(per
curiam)
(noting
that
Setser
“implicitly overruled Smith,” and concluding that the court did
not exceed its authority in running a sentence consecutively to
any future sentence).
In these circumstances, we cannot find
the district court plainly erred. 5
IV.
For
the
foregoing
reasons,
the
Government’s
motion
to
dismiss is denied, and the judgment of the district court is
AFFIRMED.
5
The Government moved to dismiss Obey’s appeal of this
issue, contending that he waived the claim in his plea
agreement.
Although a defendant of course can waive appellate
review in a plea agreement, such a provision does not waive a
contention that the sentence he received was “beyond the
authority of the district court to impose.”
United States v.
Thornsbury, 670 F.3d 532, 539 (4th Cir. 2012).
Because the
district court exceeded its authority, Obey’s challenge survives
his appeal waiver. Accordingly, we deny the Government’s motion
to dismiss.
11
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