United States Court of Appeals
For the First Circuit
No. 20-1612
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER BROWN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, for
appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
April 14, 2022
LIPEZ, Circuit Judge. Appellant Christopher Brown pled
guilty, pursuant to a written plea agreement, to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The district court sentenced Brown to 41 months' imprisonment.
Brown challenges that sentence on two grounds. He argues that the
district court erroneously calculated his sentencing guidelines
range by imposing a two-point enhancement for reckless
endangerment during flight. See U.S.S.G. § 3C1.2. He also argues
that the government paid mere "lip service" to the plea agreement
at sentencing and, in so doing, breached the agreement. Because
we disagree with Brown on both grounds, we affirm his sentence.
I.
This sentencing appeal follows a guilty plea. Thus, "we
glean the relevant facts from the plea agreement, the undisputed
sections of the presentence investigation report (PSR), and the
transcripts of [the] change-of-plea and sentencing hearings."
United States v. Ubiles-Rosario, 867 F.3d 277, 280 n.2 (1st Cir.
2017).
A. Factual Background
Shortly after 2:00 a.m. on November 25, 2018, Worcester
Police Officer Trevis Coleman was responding to a traffic stop
when he observed Christopher Brown getting out of an SUV in front
of an apartment complex. Coleman was familiar with Brown and his
criminal record, including his affiliation with a violent gang and
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his inability to lawfully carry a firearm. When Coleman observed
Brown exiting the SUV, he saw a gun protruding from Brown's
waistband. Coleman exited his vehicle, approached Brown, and
instructed him to put his hands behind his back.
Brown refused to do so and asked Coleman why he was being
stopped. Coleman responded that he would provide more information
once he placed Brown in handcuffs.1 Coleman attempted to handcuff
Brown, but Brown pulled away, yelling "Nisha, help, Nisha, help,
open the door." Brown eventually broke his hands free from
Coleman, who then wrapped his arms around Brown's waist in an
attempt to retrieve the gun that he had previously observed
protruding from Brown's waistband. He was unable to locate the
gun. Brown broke free from Coleman's grip and ran toward the
entrance of the apartment complex, tried to open the door, and
again yelled for "Nisha" to help him. Coleman radioed for back-
up and continued to pursue Brown. He removed his taser and warned
Brown that he would discharge it if Brown continued to resist
arrest. Brown then ran down the street. Coleman indeed discharged
his taser, "but it had no effect on Brown [who] kept running."
Coleman was driving an unmarked cruiser on the night of the
1
incident. Nevertheless, in light of the undisputed facts in the
record, and the absence of an argument to the contrary by
appellant, we think it is a fair inference that Brown knew Coleman
was a police officer. Indeed, the dispute over the application of
the guidelines would make no sense otherwise.
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Moments later, Coleman heard a woman yelling "Chris,"
which caused Brown to reverse course and run back toward the
apartment building. The woman opened the door to the building and
Brown ran inside. Coleman attempted to follow Brown, but Brown
pushed Coleman back outside and, in the process, grabbed Coleman's
taser.2 The taser eventually ended up on the floor of the entryway
to the apartment building. Coleman continued to pursue Brown,
pulling him outside the building, and eventually pinned him against
a vehicle on the street while waiting for back-up.
Back-up officers arrived and Brown continued resisting
Coleman's attempts to arrest him, apparently trying "to throw
Officer Coleman over his shoulders."3 With some assistance from
the other officers on the scene, Coleman was able to force Brown
to the ground. Brown pinned his hands underneath his body and
continued to resist arrest. Coleman attempted to use his taser
again, but, again, it had no effect. Using physical force --
including "punches and knee strikes" -- the officers were finally
able to subdue Brown.
2 Brown objected to the statement in the PSR that he grabbed
Coleman's taser. The district court apparently adopted the facts
as presented in the PSR but did not rule specifically on Brown's
objections. As we explain, however, this disputed fact plays no
role in our analysis.
3 Brown also objected to this statement in the PSR. He argues
that he "was trying to free himself from the officer, not to throw
him." Again, this fact is not necessary to our analysis.
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After Brown was restrained, Coleman searched the area
for the gun that he had observed protruding from Brown's waistband.
Coleman located a loaded, black .38-caliber revolver on the street
where his encounter with Brown began.
B. The Plea Agreement
In August 2019, a federal grand jury returned a
superseding indictment charging Brown with one count of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). He agreed to plead guilty to the superseding
indictment pursuant to a written plea agreement.
In the plea agreement, the government agreed that
Brown's base offense level ("BOL") was 20, see U.S.S.G.
§ 2K2.1(a)(4)(A), and that it should be decreased by three levels
for acceptance of responsibility, see U.S.S.G. § 3E1.1, for a total
offense level ("TOL") of 17. Brown agreed that the district court
"[wa]s not required to follow th[at] calculation" and waived his
right to appeal his conviction or any sentence of 37 months or
less. The agreement did not include a calculation of Brown's
criminal history category or the resulting guidelines sentencing
range ("GSR"). Instead, the government promised to recommend a
sentence "within the [g]uidelines sentencing range as calculated
by the U.S. Attorney at sentencing." The plea agreement also
provided that "[n]othing in this Plea Agreement affects the U.S.
Attorney's obligation to provide the [c]ourt and the U.S. Probation
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Office with accurate and complete information regarding this
case."
The court held a change-of-plea hearing at which Brown
entered his guilty plea. At that hearing, the court asked the
government to provide the applicable sentencing range under the
guidelines. The government stated that the applicable GSR with
the three-level decrease for acceptance of responsibility was "30
to 37 months; without acceptance, 41 to 51 months." The court
informed Brown that "while [the court] put[s] a great deal of faith
in the negotiations between the lawyers[,] th[e] plea agreement is
really just a recommendation," and the court "could reject th[at]
recommendation[]" and "impose a sentence that may be more severe
than . . . anticipate[d]," without allowing Brown to withdraw his
guilty plea. Brown stated that he understood and wished to proceed
with his guilty plea.
C. The PSR
The Probation Office prepared a PSR that calculated the
applicable GSR differently than the GSR set forth in the plea
agreement. Probation agreed that Brown's BOL was 20 but applied
a two-level increase for "[o]bstruction of [j]ustice." Probation
explained that Brown
recklessly created a substantial risk of death
or serious bodily injury to another person in
the course of fleeing from a law enforcement
officer, to include pushing the arresting
officer, grabbing his taser, and attempting to
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throw him over his shoulders. In the course
of struggling with the officer[,]the
defendant's firearm ended up in the street
before it could be safely retrieved . . . . As
such, 2 levels are added. (Citing U.S.S.G.
§ 3C1.2.)
Brown objected to this characterization in the PSR.4 Specifically,
Brown objected "that the gun had already been dislodged from
Brown's waist" by the time Coleman felt around his waist. Brown
points to the PSR's statement that "Coleman found the gun in the
same place where he first observed Brown" as additional support
for his assertion that the gun had already been dislodged from his
waist by the time of the struggle with Coleman. Brown reiterated
this objection in his sentencing memorandum, writing that "the
officer never felt the firearm or saw the firearm during the
struggle. In fact, it is clear that the firearm was out of Mr.
Brown's possession during the entire struggle."
Probation also applied a three-level reduction for
acceptance of responsibility, resulting in a TOL of 19 (two levels
higher than the TOL of 17 contemplated in the plea agreement).
The PSR also concluded that Brown had a criminal history score of
seven, which placed him in criminal history category ("CHC") IV.
Ultimately, the PSR calculated the applicable GSR as 46 to 57
months.
4 We discuss the relevance of this factual dispute infra.
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The government did not object to the PSR. Brown objected
to several factual statements (as noted above) as well as to the
PSR's two-level adjustment under U.S.S.G. § 3C1.2. Noting that
merely fleeing arrest is insufficient to trigger the adjustment,
he argued that the facts did not support a finding that he
"recklessly created a substantial risk of death or serious bodily
injury to another person" in the course of his attempt to flee.
And, putting aside his factual challenges to the role of the gun
in this event, Brown explained that his alleged conduct of pushing
an officer, grabbing the officer's taser, and attempting to throw
the officer over his shoulders would not create such a risk. He
also argued that the fact that the firearm ended up in the street
was insufficient to warrant the adjustment because "it is unclear
how [the gun] got there and . . . it was 2:00 a.m. and there was
no one else on the street and the gun was there for only a brief
period of time."
In response, Probation explained that the "physical
encounters" with Coleman that Brown admitted to "go beyond mere
flight from arrest and are squarely in the realm of resisting
arrest." "Between the defendant's disposal (or inadvertent
dropping) of his weapon and the presence of the officer's dislodged
taser during a struggle," Probation concluded that the criteria
for the two-level increase under § 3C1.2 were met.
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D. Sentencing Memoranda
Both parties filed sentencing memoranda based on their
agreed-upon calculation of a TOL of 17, the PSR's CHC of IV, and
a GSR of 37 to 46 months. In his sentencing memorandum, Brown
again argued that the § 3C1.2 enhancement was inapplicable and
that the court should disregard that aspect of the PSR.
Ultimately, Brown asked the court to impose a sentence of time
served, which would have amounted to approximately 22 months, with
good time.
For its part, the government asked for a "high-end
guideline sentence of 46 months." The government argued that such
a sentence was appropriate under the 18 U.S.C. § 3553(a) sentencing
factors "because of the dangerous nature of the defendant's
offense, and his substantial and violent criminal record."
Specifically, the government argued that Brown's "reckless
behavior" demonstrated that he was "a dangerous individual with no
regard for the safety of Police Officers, the community[,] or
others." The government labeled the offense as "very dangerous
and violent" because "[t]he defendant's gun was loaded and his
reckless and dangerous conduct toward Officer Coleman could have
caused tragic consequences." The government also noted that Brown
has a "long and troubling criminal history" that involved, among
other things, "violence against women, guns, knives[,] and crack
cocaine" and argued that Brown's "violent and reckless character
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justify a significant period of incarceration to keep the community
safe, to punish him[,] and to hopefully give him the needed time
to reform his life."
E. Sentencing Hearing
At sentencing, the court heard argument on whether to
apply the reckless endangerment enhancement to Brown's offense
level. Defense counsel started his argument by emphasizing that
the plea agreement did not impose the enhancement. He further
argued that "certain arguments made in [the government's]
sentencing memo were against the plea agreement." Factually,
defense counsel argued that the enhancement was inapplicable
because this was "more of a run-of-the-mill resisting arrest"
situation, given Brown's contention that the firearm dislodged
early in the encounter before the struggle with Coleman, and the
fact that the scuffle lasted less than two minutes, did not result
in any injuries, and occurred on an empty street in the middle of
the night.
In response, the government confirmed that "[t]he
government [wa]s not asking for th[e] enhancement to be applied,"
and asked the court to use the agreed-upon TOL of 17. The
government explained that its sentencing memorandum emphasized the
nature and circumstances of the offense only in the context of
applying the § 3553(a) factors.
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The court recognized the absence of the enhancement in
the plea agreement but nevertheless concluded that the enhancement
applied. The court explained: "I think that the rationale from
Matchett . . . works and is analogous."5 Hence, the court
calculated Brown's TOL as 19 and his CHC as VII for a GSR of 46 to
57 months (rather than the 37- to 46-month GSR that would apply to
a TOL of 17). The court then heard sentencing recommendations
from the parties.
The government asked for a high-end guidelines sentence
of 46 months "because of the dangerous nature of the defendant's
offense and the defendant's substantial violent criminal record."
Defense counsel asked for time served. Ultimately, the court
sentenced Brown to 41 months in prison. Defense counsel renewed
his objection to the court's guideline calculation and to the
"position that [the government] took in their sentencing
memorandum." Brown appeals his sentence on those same grounds,
arguing that: (1) the district court erred by imposing the two-
point reckless endangerment enhancement; and (2) the government
violated the plea agreement.6
5 We further discuss this case, United States v. Matchett,
802 F.3d 1185 (11th Cir. 2015), below.
6 Neither of these claims are covered by the waiver of
appellate rights in Brown's plea agreement. He reserved the right
to appeal any prison sentence longer than 37 months; the district
court sentenced him to 41 months. He also reserved the right to
argue that the prosecutor "engaged in intentional misconduct
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II.
A. The Sentencing Enhancement
We review a district court's factfinding at sentencing
"for clear error, giving due deference to the court's application
of the guidelines to the facts." United States v. Carrero-
Hernández, 643 F.3d 344, 349 (1st Cir. 2011) (quoting United States
v. Thompson,
32 F.3d 1, 4 (1st Cir. 1994)). We will not find clear
error in the court's application of the guidelines to the facts
"as long as the district court's decision is based on reasonable
inferences drawn from adequately supported facts." United States
v. Martin,
749 F.3d 87, 92 (1st Cir. 2014) (quoting United States
v. Santos,
357 F.3d 136, 142 (1st Cir. 2004)).
Section 3C1.2 of the Sentencing Guidelines provides for
a two-level increase to a defendant's offense level "[i]f the
defendant recklessly created a substantial risk of death or serious
bodily injury to another person in the course of fleeing from a
law enforcement officer." U.S.S.G. § 3C1.2. "Reckless" means
"the defendant was aware of the risk created by his conduct and
the risk was of such a nature and degree that to disregard that
risk constituted a gross deviation from the standard of care that
a reasonable person would exercise in such a situation." Id.
§ 2A1.4 cmt. n.1. The Sentencing Commission promulgated § 3C1.2
serious enough to entitle [him] to have his conviction or sentence
overturned."
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to "adopt the view that 'mere flight from arrest was not sufficient
for an adjustment, but that flight plus endangerment was enough.'"
Carrero-Hernández, 643 F.3d at 348 (quoting United States v. Bell,
953 F.2d 6, 10 (1st Cir. 1992)).
Many of the cases in which we have upheld the application
of the § 3C1.2 enhancement involve "wildly dangerous" conduct.
Carrero-Hernández, 643 F.3d at 349; see also United States v.
Alicea,
205 F.3d 480, 486 (1st Cir. 2000) (firing a weapon in a
public plaza occupied by police officers and bystanders); United
States v. Cruz,
213 F.3d 1, 5 (1st Cir. 2000) (leading police
officers on a high-speed chase, ramming vehicles, and driving on
the sidewalk); United States v. Vega-Rivera,
866 F.3d 14, 19 (1st
Cir. 2017) (similar). But in Carrero-Hernández we joined other
courts in concluding that "less egregious, though still reckless,
conduct can indeed qualify under § 3C1.2." See
643 F.3d at 349.
There, we concluded that leading the police on a car chase "on
small back roads in a heavily populated area during the early
evening" was sufficient to warrant the enhancement.
Id. We
reasoned that "the risk of serious injury or death could hardly
have been more obvious" due to the "high likelihood of collision
with pedestrians and/or oncoming traffic" created by the
defendant's driving, and held that this conduct justified the
application of the § 31C.2 enhancement. Id. at 350. As in
Carrero-Hernández, the question we must answer here "is what level
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of endangerment is called for" to trigger proper application of
the enhancement. Id. at 348.
For this purpose, it is helpful to distinguish the
conduct at issue in Carrero-Hernández, which we concluded
transgressed the boundary separating mere "flight" from "flight
plus endangerment," id. at 348-50, from the conduct at issue in
United States v. Bell, 953 F.2d 6 (1st Cir. 1992), which we
concluded fell below the line. In reversing the application of
the sentencing enhancement in Bell,7 we held that even if "Bell
obtained the gun for the purpose of resisting arrest and
contemplated its use for a few critical seconds,"8 his conduct did
7 "Although the government and apparently the [district] court
assumed that Bell's conduct was governed by § 3C1.1" -- and the
district court ultimately imposed the § 3C1.1 enhancement -- we
explained that "it is § 3C1.2 which in fact addresses this kind of
situation" and evaluated whether Bell's conduct warranted the
application of the § 3C1.2 enhancement. 953 F.2d at 10. Section
3C1.1, like § 3C1.2, provides for a 2-level increase in the offense
level. U.S.S.G. § 3C1.1. Section 3C1.1 applies where "(1) the
defendant willingly obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to
the investigation, prosecution, or sentencing of the instant
offense of conviction, and (2) the obstructive conduct related to
(A) the defendant's offense of conviction and any relevant conduct;
or (B) a closely related offense." Id.
8 The district court in Bell "concluded that Bell's possession
of the firearm and ammunition 'indicate[d] a clear, willful intent
to obstruct his apprehension.'" Id. at 9. Although we expressed
skepticism that the available evidence supported this factual
finding by the district court, id. at 9 n.3, we assumed, for
purposes of reviewing the application of the enhancement, that the
district court's inference was reasonable, id. at 9. But even
assuming that Bell fleetingly intended, during his "momentary
hesitation," to use the gun to resist arrest, we nevertheless
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not rise to the level of conduct implicated by § 3C1.2. Id. at 10.
We emphasized that Bell "did not use the gun. Nor did he make any
clear attempt to draw it. Although Bell's conduct came close to
the line, something more -- reaching for the gun, for example --
would be required" to warrant an adjustment under § 3C1.2. Id.
Our circuit has not addressed whether physically
struggling to resist arrest while possessing a firearm can provide
the "something more" that § 3C1.2 requires. Like the district
court, we find case law from other circuits to be instructive on
this point. In United States v. Matchett, the Eleventh Circuit
held that possessing a loaded firearm while resisting arrest in a
physical struggle justified the application of the § 3C1.2
enhancement. 802 F.3d 1185, 1198 (11th Cir. 2015).9 Under that
circuit's precedent, "conduct that could potentially harm a police
officer or a third party is sufficiently reckless" to qualify for
the enhancement, and the Matchett court determined that the "drop-
fire"10 risk of the defendant's gun "created the requisite degree
concluded that the facts of the case did not warrant application
of the enhancement. Id. at 9-10.
9 Matchett involved a three-minute "scuffle" between a police
officer and Matchett after a Terry stop revealed a firearm in
Matchett's pocket and he tried to run from the officer. 802 F.3d
at 1190. Throughout the struggle, the officer kept his hand on
the gun in Matchett's pocket.
Id. at 1197. After subduing
Matchett, the officer found the loaded gun "about ten feet" away
from the site of the struggle.
Id. at 1190.
10"Drop-fire occurs when the gun is carried with a bullet in
the chamber over which the hammer rests. In this situation,
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of risk." Id. at 1197-98. Other circuits have reached similar
conclusions about the relevance of a loaded firearm to the
application of the § 3C1.2 enhancement. E.g., United States v.
Easter,
553 F.3d 519, 523-24 (7th Cir. 2009) (per curiam) (reaching
for a loaded gun while fleeing from a police officer, regardless
of intent, justified enhancement); United States v. Bates,
561
F.3d 754, 757 (8th Cir. 2009) (struggling with officer while armed
with a loaded weapon justified enhancement); United States v.
Williams,
278 F. App'x 279, 280-81 (4th Cir. 2008) (per curiam)
(briefly struggling with officers while carrying a pistol
justified enhancement).
At the sentencing hearing, the district court expressed
concerns about the "drop-fire" risk of appellant's firearm as it
considered whether to apply the § 3C1.2 enhancement. The court
asked defense counsel how to distinguish this case from Matchett.
Defense counsel offered the following explanation:
the struggle in Matchett lasted for a
significant period of time. . . . [T]he
defendant had the possession of the firearm
the entire time during the encounter and that
the officer had his hand on the firearm during
the struggle . . . . [T]he parties were
injured in Matchett . . . . [T]here were
people surrounding [the incident], watching
it, and pedestrians walking by.
regardless of the cock position of the hammer, a sharp blow to the
hammer, such as when the gun is dropped and lands hammer first,
will cause the gun to discharge." Johnson v. Colt Indus. Operating
Corp., 797 F.2d 1530, 1532 (10th Cir. 1986); see also Matchett,
802 F.3d at 1198.
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In contrast, defense counsel explained that during Brown's
encounter with Coleman,
there is literally not a single automobile
that goes by during the encounter; there's not
a single pedestrian that walked by during this
encounter. And . . . the officer tried to grab
for the firearm but couldn't find it. And the
only conclusion to reach from that is that the
firearm had been disposed of by Mr. Brown not
during the struggle [but] prior to the
struggle, which I think is a distinction in
terms of [] dropping it . . . and [the]
possibility of it firing because at the end of
a struggle and once he's arrested they go back
and they find it at the location where he was
first observed . . . . [T]he firearm's
dislodged early on.
Notably, appellant's arguments at sentencing did not challenge the
actual "drop-fire" risk of appellant's gun. And the arguments
that appellant did set forth to distinguish his situation from
Matchett -- and from the concerns about the reckless possession of
firearms while resisting arrest that animated the Eleventh
Circuit's reasoning -- are unavailing.
The uncontested record in this case indicates that at
the outset of the encounter between Brown and Coleman, appellant
had a firearm visibly tucked in the waistband of his trousers.
Between Coleman's sighting of the weapon and the end of the
encounter, the firearm became dislodged and fell to the ground.
Although appellant disclaims knowledge of when the firearm moved
from his waistband to the ground, he admits that the gun was
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"dislodged" and he does not claim to have carefully placed the gun
on the ground for safekeeping.11 At a minimum, then, this case
involves a loaded gun falling to the ground without its possessor's
knowledge during a physical struggle with a police officer. And
appellant's inattention to his loaded firearm implicates the very
concerns about "drop fire" that animated Matchett. As that court
observed, § 3C1.2 punishes "reckless" conduct and "requires only
that there was a substantial risk that something could have gone
wrong and someone could have died or been seriously injured."
802 F.3d at 1197-98. Losing track of and allowing a loaded gun to
fall to the ground while physically resisting arrest surely
qualifies as reckless conduct under the § 3C1.2 standard due to
the risk of accidental firing and corresponding possibility of
serious injury.12
In his opening brief, appellant notes that "his conduct
11
involved a gun only insofar as he dropped it, placed it on the
ground, left it in the SUV (whose driver discarded it), or let it
slide down his pantleg." In other words, appellant has no idea
what happened to the gun.
It does not matter, as appellant suggests, that the gun was
12
dislodged onto "a dark, empty street" at a time "when it was highly
unlikely that anyone would walk by." Section 3C1.2 applies when
a defendant's conduct "created a substantial risk of death or
serious bodily injury to another person," (emphasis added), which
is defined in comment 4 to "include[] any person, except a
participant in the offense who willingly participated in flight."
U.S.S.G. § 3C1.2 cmt. n.4. It suffices for purposes of the
enhancement that Brown's struggle with Coleman created a
substantial risk of death or serious bodily injury to the officer
alone. Cruz, 213 F.3d at 5.
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For the first time on appeal, appellant argues that the
district court erred in imposing the § 3C1.2 enhancement because
its conclusion about the risk of drop fire was unreasonable absent
affirmative record evidence of that risk. Appellant claims that
[t]he PSR said the gun was a Taurus .38
revolver, serial number DN89861, with four
rounds in the cylinder. It did not state that
there was a round in the chamber over which
the hammer rests, aver that the hammer was
cocked, or describe whether the revolver was
single or double action. While the PSR did not
describe the number of chambers in the
cylinder, the court could have taken judicial
notice from the manufacturer’s website that
there are 5.
Appellant urges the court to follow United States v. Mukes, 980
F.3d 526, 538 (6th Cir. 2020), where the Sixth Circuit held that
the government needed to show that a gun was both cocked and loaded
at the time it was dropped to justify applying the § 3C1.2
enhancement. We decline this invitation for two reasons.
First, the circumstances of this case are
distinguishable from the situation in Mukes. Whereas Mukes
involved a defendant dropping a gun while fleeing arrest -- at
some distance from police, see id. at 530 -- the record here is
consistent with Brown's loaded gun falling to the ground during a
physical struggle with a police officer, where the risk and
potential consequences of accidental firing are heightened.
Second, even if we take Mukes's point that not all guns
pose a risk of drop fire, it was not clearly erroneous for the
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district court to conclude that this gun posed a risk of drop fire.
As Brown himself notes, there were rounds in four of the gun's
five chambers. It was reasonable for the district court to infer
that Brown's loaded gun posed a risk of drop fire to Coleman.13
See Vega-Rivera, 866 F.3d at 19 ("[T]he absence of such specific
minutiae does not invalidate a finding that the defendant's actions
were reckless where his actions grossly deviated from the standard
of care that a reasonable person would exercise in the same
situation.").
B. The Plea Agreement
Appellant preserved his claim that the government
violated the plea agreement by objecting at the sentencing hearing,
and so we review that claim de novo. United States v. Davis, 923
F.3d 228, 236 (1st Cir. 2019).
Traditional principles of contract law guide our
interpretation of the terms and performance of a plea agreement.
United States v. Clark, 55 F.3d 9, 12 (1st Cir. 1995). But because
a defendant who enters a plea agreement waives fundamental
We need not, as appellant urges, delve into the specific
13
firing mechanism of the gun or the precise location of the four
rounds to conclude that the district court's inference was
reasonable. We think it reasonable to conclude that a gun that
contains a bullet possesses a probability of accidental firing.
The district court is best situated to evaluate the magnitude of
this risk, and the four bullets in the gun here provide adequate
support for its conclusion that the risk present justified the
application of the § 3C1.2 enhancement.
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constitutional rights, we "hold prosecutors to 'the most
meticulous standards of promise and performance.'" United States
v. Marín-Echeverri, 846 F.3d 473, 478 (1st Cir. 2017) (quoting
United States v. Almonte-Nuñez,
771 F.3d 84, 89 (1st Cir. 2014)).
The government cannot satisfy its obligations under a plea
agreement by mere "lip service." See
id. ("Such standards require
more than lip service to, or technical compliance with, the terms
of a plea agreement. . . . [I]t is possible for a prosecutor to
undercut a plea agreement while paying lip service to its
covenants." (quoting Almonte-Nuñez, 771 F.3d at 89-91)). In
addition to entitlement to the government's technical compliance
with the agreement, appellant is entitled to the "benefit of the
bargain" and the "good faith" of the prosecutor. Ubiles-Rosario,
867 F.3d at 283 (quoting United States v. Matos-Quiñones,
456 F.3d
14, 24 (1st Cir. 2006)). We consider "the totality of the
circumstances" in determining whether the government has failed to
uphold its part of the bargain. See
id. ("There is, of course,
'[n]o magic formula' for assessing whether a prosecutor has
complied with a sentencing recommendation in a plea agreement.
. . . [W]e examine the totality of the circumstances to determine
whether 'the prosecutor's overall conduct [is] . . . reasonably
consistent with making such a recommendation, rather than the
reverse.'" (citations omitted) (quoting United States v. Gonczy,
357 F.3d 50, 54 (1st Cir. 2004)).
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In both its sentencing memorandum and at the sentencing
hearing, the government asked the court to impose a sentence based
on a TOL of 17, as provided for in the plea agreement. On appeal,
appellant nevertheless presents two theories in arguing that the
government's actions constitute mere lip service to that
agreement. One theory, based on the government's inaction, posits
that the government violated the plea agreement by failing to
object to the PSR's inclusion of the § 3C1.2 enhancement or to
discourage the district court from imposing the enhancement. But
the plea agreement did not require the government to do either of
these things. Absent an affirmative obligation to do so, the
government did not violate the terms of the plea agreement by
failing to affirmatively state that the § 3C1.2 enhancement should
not apply. United States v. Luis Rivera-Cruz, 878 F.3d 404, 409-
10 (1st Cir. 2017); see also Davis,
923 F.3d at 239.
Appellant's other theory characterizes the government's
arguments at the sentencing hearing as "undercutting" its stated
recommendation of a TOL of 17. By describing appellant's behavior
as "reckless" and "show[ing] absolutely no care or concern for
safety," appellant contends that the prosecutor implicitly argued
for the § 3C1.2 enhancement to apply. This argument, too, is
unavailing.
Our case law makes clear that a plea agreement cannot
impair the government's "solemn obligation to provide relevant
- 22 -
information to the sentencing court." Ubiles-Rosario, 867 F.3d
at 283 (quoting Almonte-Nuñez,
771 F.3d at 90); see also
18 U.S.C.
§ 3661 ("No limitation shall be placed on the information
concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate
sentence."). By statute, the sentencing court must consider
several factors when imposing a sentence, see 18 U.S.C. § 3553(a),
and it "has a right to expect that the prosecutor" will be
forthcoming with "all relevant facts," United States v. Saxena,
229 F.3d 1, 6 (1st Cir. 2000) (quoting United States v. Hogan,
862
F.2d 386, 389 (1st Cir. 1988)). The government's conduct in this
case struck a permissible balance between its statutory obligation
of candor to the court and its plea-agreement obligations to
appellant. Indeed, the government conveyed to the court "early,
often, and throughout the sentencing" hearing that it was
requesting a sentence based on a TOL calculation of 17. Ubiles-
Rosario,
867 F.3d at 286-87. The government's repeated
recommendations of this TOL were not "impermissibly equivocal,
apologetic, or begrudging." Davis,
923 F.3d at 239.
The government explained that it sought a high-end
guideline sentence of 46 months -- based on a TOL of 17 -- in part
due to the dangerous nature of Brown's conduct. This sentence was
within the range expressly contemplated by the plea, which did not
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prevent the government from seeking a high-end sentence. Cf.
Gonczy, 357 F.3d at 54 (holding that the government breached its
promise in a plea agreement to seek a low-end sentence by
requesting a low-end sentence "at a minimum" and "undercut[ting],
if not eviscerat[ing]," the initial recommendation (emphasis
added)). Because the agreement permitted the government to request
a sentence "within the [g]uidelines sentencing range as calculated
by the U.S. Attorney at sentencing," it was entitled to request
this sentence and to support its high-end recommendation with
reference to the § 3553(a) factors, including details about the
nature of Brown's conduct and the risk it posed to another person's
safety. See Davis,
923 F.3d at 238; United States v. Irizarry-
Rosario,
903 F.3d 151, 154-55 (1st Cir. 2018). Consequently, the
government's sentencing arguments did not constitute a breach of
the plea agreement.
Affirmed.
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