United States v. Habbas, No. 05-6142-cr (2d Cir. May 30, 2008) (Leval, Sack, CJJ, Garaufis, DJ)
This confusing opinion attempts to sort through the defendant’s claim that the government breached a plea agreement. But because of the imprecise way it is written, it is hard to know what really happened.
Defendant Rahman pled guilty to obstruction of justice in connection with his effort to frame someone named Abdel-Wahed by falsely reporting that Abdel-Wahed had assaulted a third person, who had testified against one of Rahman’s associates. Rahman pled guilty and was sentenced to eight years in prison.
On appeal, he argued that the government violated the plea agreement by advocating for guidelines higher than those contained in the agreement. Specifically, the government agreed with the probation department’s assessment that Rahman merited a four-level role enhancement, even though the agreement did not contain that adjustment. In rejecting this claim, the appellate court characterized the guidelines calculations in the plea agreement as a “Pimentel estimate,” referring to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), the very early guidelines case in which the court suggested that the government provide defendants with an estimate of the likely guideline range, to ensure that the defendant’s choice to plead guilty was intelligently made.
The decision turned on several factors. First, according to the court, plea the agreement “clearly stated” that the guideline range was a non-binding estimate, and warned that the government might advocate for a higher sentence. Moreover, there was no evidence that the government acted in bad faith or changed its position so dramatically that it would raise doubts as to whether the defendant understood the risks involved in pleading guilty. Rather, it appears that, in the rush to put together the plea agreement, the government simply forgot about the role adjustment. Finally, here, the defendant was not prejudiced by the government’s change of position, since the district judge imposed a sentence far longer than even the enhanced range, and, according to the circuit, in doing so expressly indicated that the guideline dispute was “academic.”
This is a bizarre opinion, because it turns on a close reading of the plea agreement, without reproducing the language of the agreement itself, if that is in fact what it was. It is hard to know, because the opinion also uses confusing terminology. In some districts in this circuit, a Pimentel letter is a non-binding informational letter from the government containing a guidelines estimate that is not a plea agreement at all. Here, it is hard to know whether the court is in fact analyzing a claim about a Pimentel letter, or one about a plea agreement that contained a non-binding guidelines estimate, but other binding provisions. The confusion is even more pronounced because the court distinguishes this case from United States v. Palladino, 347 F.3d 29 (2d Cir. 2003), a seemingly identical case that went the other way but that never mentioned Pimentel at all.
In the future, it would be better if the court did not discuss plea agreements under the Pimentel rubric, since most practitioners associate Pimentel estimates with non-binding letters that are not agreements at all.
The opinion is also confusing because it at one juncture indicates that the “dispute” over the role enhancement was made moot by the district court’s findings, then at a later juncture indicates that Rahman’s counsel did not object to the four-level adjustment that is the subject of the appeal. It is hard to see how both can be true.