Pursuant to a plea agreement, Steven W. Arnett pleaded guilty to one count of an indictment charging several illegal acts involving methamphetamine. He appeals from a three-year sentence.
The government had promised that it would dismiss the remaining counts, and would "take no position as to the appropriate sentence." At the sentencing hearing on the count to which Arnett pled guilty, the government did not oppose Arnett's argument for probation rather than a prison term. Nevertheless, the judge sentenced Arnett to incarceration.
Two days after sentencing, Arnett moved under Fed.R.Crim.P. 35 for a reduction of sentence. His written motion advanced the same arguments that he had urged upon the court during the sentencing hearing. This time, the government did not stand mute.
In a written response to the Rule 35 motion, the government "vigorously oppose[d] any modification" of the original sentence. The government argued that (a) Arnett had presented no new arguments or information bearing on his sentence, (b) no other circumstances regarding the sentence had changed, and (c) the original sentence could be "characterized as generous", because the investigations by the government and the Probation Office showed that Arnett was the more culpable of the two defendants; nonetheless each received the same sentence. The response concluded: "there is no basis for even considering a modification unless and until defendant can come up with some new factor to justify such consideration."
Arnett moved to strike the government's response, on the ground that it violated the plea agreement. The government in turn argued that the plea bargain bound it only to take no position at the time of sentencing, and that the agreement did not affect its duty to make an appropriate response in subsequent proceedings seeking reduction of the sentence.
The court denied the Rule 35 motion. Arnett asks this court to vacate that order and to remand the case for reconsideration of the Rule 35 motion by a different judge. In the trial court, Arnett expressed his belief that transfer to another judge was not necessary unless the court felt it could not disregard the government's response, in which case Arnett would request such a transfer.
One case, United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973), tends to support Arnett's position. In Ewing, the government promised as part of a plea bargain not to oppose defendant's request for probation. The government attorney at sentencing did not oppose defendant's arguments for probation. The defendant was sentenced to a term in prison. He brought a Rule 35 motion, and a second government attorney, apparently ignorant of the agreement, opposed the motion.
The government maintains, however, that Bergman v. Lefkowitz, 569 F.2d 705 (2d Cir. 1977), is closer in point. The Special State Prosecutor in Bergman had promised in a plea agreement that he would recommend that the state court impose no sentence in addition to one previously imposed by a federal district court incident to charges arising from the same facts. The prosecutor did so recommend, but the state court imposed an additional sentence anyway. The prosecutor later opposed a motion in federal court for reduction of sentence. The Second Circuit held that the prosecutor had fulfilled the plea bargain when he made his recommendation, and that, by its very terms, the agreement did not bar him from opposing the motion for reduction of sentence.
The fundamental teaching in this area, both sides agree, comes from Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971):
In Santobello, defendant had entered a guilty plea in exchange for the prosecutor's promise to make no recommendation concerning sentence. At sentencing, another prosecutor asked for the maximum sentence.
As the language from Santobello makes clear, "[a] plea bargain is contractual in nature." Petition of Geisser, 554 F.2d 698, 704 (5th Cir. 1977). See also United States v. Bridgeman, 173 U.S.App.D.C. 150, 160-61, 523 F.2d 1099, 1109-10 (D.C. Cir. 1975), cert. denied, 425 U.S. 961, 96 S.Ct. 1743, 48 L.Ed.2d 206 (1976) ("the decision in Santobello * * * involved fundamental principles of contract law, notably those concerning mutually binding promises freely given in exchange for valid consideration"). Plea bargaining, in other words, though a matter of criminal jurisprudence, is subject to contract-law standards. Therefore, the terms of the agreement, if disputed, are to be determined by objective standards. Johnson v. Beto, 466 F.2d 478, 480 (5th Cir. 1972).
It is for this reason that Ewing and Bergman are of little help here, involving as they do other parties to other plea agreements. What the parties agreed to in the instant plea bargain is a question of fact. United States v. Gonzalez-Hernandez, 481 F.2d 648, 650 (5th Cir. 1973). Resolution of the good-faith disputes over the terms of an agreement should be made by the district court, to whom the plea was originally submitted, "on the basis of adequate evidence." United States v. Simmons, 537 F.2d 1260 (4th Cir. 1976).
The district court has responsibility under Fed.R.Crim.P. 11 to develop satisfactorily the terms of a plea bargain. United States v. Scharf, 551 F.2d 1124 (8th Cir.), cert. denied, 434 U.S. 824, 98 S.Ct. 70, 54 L.Ed.2d 81 (1977). See also United States v. Gonzalez-Hernandez, 481 F.2d at 650 n.1; Bryan v. United States, 492 F.2d 775, 781-82 (5th Cir.) (en banc), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974).
This court does not read Ewing to say, as Arnett contends, that a plea bargain committing the government to "take no position as to the appropriate sentence" binds the government, as a matter of law, to remain silent at the time of a motion for
Because the district court summarily denied the motion to strike the government's response, we cannot tell what the court might have found had a dispute arisen over the intent of the parties. There is nothing in the record permitting this court to resolve the question.
Arnett does not ask this court to remand the case to the sentencing judge, who received the plea, for a factual determination of the intent of the bargain. Instead, he seeks reconsideration of his Rule 35 motion by another judge.
Reconsideration of pending motions by different judges may or may not be a desirable trend in judicial administration. Practices vary.
Remand to a different judge is not the usual remedy when error is found in district court proceedings. Remand to a new judge is reserved for "unusual circumstances". United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc).
Whether to remand with directions about apportioning district court work requires a weighing of several factors:
On the first cirterion, there is no reason to think that, if the government created error by responding to Arnett's Rule 35 motion, the original district judge would have inordinate difficulty in proceeding as if the response had not been made. Indeed,
The only new information presented in the government's written response was that it vigorously opposed any modification, and that its own investigation showed Arnett to be more culpable than his codefendant. We do not believe either to be the sort of prejudicial information which the district court would have difficulty in ignoring.
Second, there appears to be no injustice. The sentence on its face certainly raises no questions. Moreover, this is not a case of inexcusable government inadvertence or ignorance as in Ewing or Santobello, but a good-faith disagreement between counsel about an ambiguity in the plea bargain. The essential elements of the bargain were fulfilled. See United States v. Johnson, 582 F.2d 335, 337 (5th Cir. 1978), cert. denied, 439 U.S. 1051, 99 S.Ct. 732, 58 L.Ed.2d 711 (1979) (Ewing "does not give the defendant the right to present an unopposed Rule 35 motion. The government violates Ewing only when its opposition violates the essence of the plea bargain.")
The essence of the plea agreement here was Arnett's opportunity to present without opposition all his arguments for probation at sentencing. The government scrupulously observed its promise during sentencing.
Finally, as the Rule 35 motion came only two days after the district judge had passed upon the same arguments at sentencing, and nothing had changed in the meantime, the possibility of injustice to Arnett seems somewhat remote. Injustice to the government could result from a blind obedience to Ewing as read by Arnett.
Considerable waste of time and duplication of effort would result if a different judge were to consider the Rule 35 motion. A new judge would have to learn about the defendant, his background, the plea bargain and the sentence. In considering whether to reduce the sentence, the new judge could only guess what had led the first judge to impose the original sentence. As there is little appearance of unfairness here, the benefits, if any, of remand to a different judge appear slight in comparison to the disadvantages.
Although Arnett did not request this remedy, for the reasons already stated we conclude that the appropriate remedy is to remand the case to the district court for resolution, after hearing, of the dispute as to the terms of the plea bargain. If that court finds that the government did breach the agreement, then Arnett is free to withdraw his guilty plea and stand trial on the original charges, or to renew his Rule 35 motion before the sentencing judge.
The order denying Arnett's Rule 35 motion is vacated, and the case is remanded to the district court.
The question has arisen in a related area, motions under 28 U.S.C. § 2255 to reconsider sentences when the sentencing judge has improperly considered certain invalid prior convictions. We have held that review of these sentences must ordinarily be made by the sentencing judge himself. Farrow v. United States, 580 F.2d 1339, 1348-51 (9th Cir. 1978) (en banc). In addition to the statutory history of section 2255, we found that principles of "sound judicial administration" disfavored review by a different judge. 580 F.2d at 1350. These principles parallel those of Robin, including the ability of the sentencing judge to reevaluate the sentence without considering the invalid prior convictions and the avoidance of waste and duplication.