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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________
No. 94-2083
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER F. CONNOLLY,
a/k/a "SNAKE",
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Jean-Claude

Sakellarios

with

whom

David

I.

Bailinson

________________________
_____________________
Sakellarios & Associates were on brief for appellant.
________________________
Margaret D. McGaughey, Assistant United States Attorney, w
_______________________
whom Jay P. McCloskey, United States Attorney, and Jonathan
__________________
_________
Chapman, Assistant United States Attorney, were on brief for
_______
United States.
____________________
April 4, 1995
____________________

BOUDIN, Circuit Judge.


_____________
Connolly

pleaded

guilty

indictment.

The

Connolly and

others into

Connolly
cache

On December
to

two

counts

indictment related
a

home in

and his

confederates

of marijuana

to steal.

Connolly pled guilty

21, 1993, Walter F.


of

to the

1992 entry

Cornish, Maine,

believed they
Based

to one count

marijuana with intent to distribute,

four-count

on a

by

where

would find

plea agreement,

of conspiring to
21 U.S.C.

possess

841,

846,

and one count of carrying a firearm during and in relation to


a drug trafficking crime, 18 U.S.C.

924(c).

The presentence report dated February 22, 1994, proposed


that

the amount of drugs attributed to the conspiracy be set

at 145.1 kilograms (just under 320 pounds); the base


level is 26 for 100 to
2D1.1(c)(7).
enhancement
U.S.S.G.

400 kilograms of marijuana.

The

because

report

recommended

Connolly

3B1.1(a),

and

was
a

leader or

three-level

acceptance of responsibility, U.S.S.G.

point, based on a

conviction,

other charges

19

U.S.S.G.
four-level
organizer,

reduction

3E1.1.

only one criminal history


but also

offense

for

Connolly had

Florida assault

or convictions

not

counted because of age or other circumstances.


The

government

uncounted criminal

moved
history.

for

upward

U.S.S.G.

counsel countered the government's


earlier prosecutor

an

4A1.2.

for

Connolly's

motion by saying that the

who negotiated the plea

-2-2-

departure

had promised not

to

move

for an

objections to
departure

the presentence

based

witness the
district

upward departure.

court found

that

filed various

report, moved for

on diminished

homeowner whose

Connolly

capacity,

house
the

and

had been

homeowner's

a downward
sought as

invaded.

The

testimony

was

irrelevant because no marijuana had been found and

the issue

was what Connolly had believed would be found.


After a

delay to determine what

the earlier prosecutor

had said, the district court sentenced Connolly on October 3,


1994.

On

presented

the

issue

of

drug

quantity,

the

government

testimony from an investigator who had interviewed

other cooperating defendants; according to the investigator's


reports
find

of his

at least

higher figures
denied
that

interviews, the
eight

defendants had

40-pound bags

were also

reported.

expecting that any marijuana


he had expected

the drugs to

expected to

of marijuana,
Connolly

although

testified and

would be found; he said


be gone and

that he had

participated only in the hope of finding money.


The

government

departure based
no promise had

press

for

been made

by the earlier

departure.

then

to

had been

that the earlier

we're not asking

repeated, when

-3-

upward

arguing that

Defense counsel who

said, "you're lucky

departure," and

an

prosecutor not

the plea negotiations reported

prosecutor had
upward

to

on uncounted criminal history,

move for an upward


involved in

continued

for an

a protest

was

-3-

made,

"we're not going to

that

the

earlier

do that."

prosecutor

Counsel also reported

had

also

made

guideline

computations that showed no such departure.


The district court then found that the relevant quantity
of marijuana was 145.1
the

conspirators

had expected

adjustment of four
of three

kilograms, reflecting the amount that


to

substance

that the

upward

levels for leadership, and a downward one

levels for acceptance of

proper; and

steal;

responsibility, were both

that a downward departure sought by Connolly for


abuse

was not

warranted.

This

resulted

in an

adjusted offense level of 27 for count I.


As

to

criminal

history,

the

court

found

that

the

government had not promised to refrain from seeking an upward


departure.

The

have contemplated
had not so

court also said that it "would


departing upward .

requested."

. . if

in any event
the government

The court found that Connolly had an

extensive criminal history reflecting "a lifelong pattern


criminality."

The

court

also found

that

of

17-year-old

burglary
counted

conviction, although
under U.S.S.G.

nature to the crime

remote

4A1.2

in

because

of conviction.

time,

should

it was

This added

be

similar in
three points

to Connolly's criminal history, placing him in category III.


The

resulting guideline range for count I was 87 to 108

months.

The

deducting

time

court

imposed

already

spent

sentence
in pretrial

of

100

months,

custody.

The

-4-4-

statutory

minimum

sentence

consecutively to the
II.

18

U.S.C.

of

60

months,

to

be

count I sentence, was imposed

924(c).

Connolly has

served
on count

now appealed to this

court.
Connolly's first

challenge is

to the district

upward departure based on criminal history.


separate

arguments is

upward departure was

that the
a breach

The first of two

government's motion
of the plea

court's

for an

agreement or

at

least the earlier prosecutor's promise that no such departure


would

be sought.

We

assume arguendo

the accuracy

of the

________
defense's

description

of

what

the

prosecutor

said;

two

lawyers so testified and the government did not squarely deny


it.

Still,

it is difficult

to regard that

part of the plea bargain because

statement as a

of the language of the plea

agreement itself.
The

agreement

obligations of

explicitly

sets

the parties, specifies

commitment

is to

drop

two

"Defendant

understands that

other

forth

various

that the government's

counts,

there are

the

and

no further

says

that

or other

promises or agreements, either express or implied, other than


those

contained in this Agreement and that none will be made

except

in

writing and

signed

by all

neither Connolly nor his counsel


by the government not to move

parties."

Further,

referred to an oral promise

to depart when, at the Rule 11

-5-5-

hearing,

the

district

court

inquired

whether

any

other

promises had been made.


What we have, therefore,

is a prosecutor's oral comment

that might or might not be taken as a promise.


as a promise,
that

it was not included in a later filed agreement

purported to be a complete

made by the government.


hard to

But, if taken

know what

integration of all promises

Reading the document in full, it

more a

prosecutor could

do to write

is
an

agreement that negated promises other than those set forth in


the document.

Further, the defense

open court that no

thereafter confirmed in

unwritten promises were part of

the plea

bargain.
Absent special circumstances, a defendant--quite as much
as the government--is bound by

a plea agreement that recites

that it is a complete statement of the


We have said

that there

rule in unusual cases,


222 (1st

Cir. 1994),

unusual in this case.


offered
writing.

to

explain
Nor

is

parties' commitments.

may be exceptions

to this

Bemis v. United States, 30


_____
_____________
but Connolly

has

general
F.3d 220,

pointed to

nothing

The earlier oral representation is not


but

rather

there any

to

basis

contradict
here for

the

charging

later
the

government with deliberate misconduct.


In

some

cases,

earlier

oral

discussions

prosecutor may be perfectly legitimate evidence to


or clarify later

written statements.

-6-6-

with

the

interpret

This appears to

have

been

the case

1986),

in

In re Arnett, 804
_____________

cited to us by

Connolly.

In

F.2d 1200

(11th Cir.

Arnett, the prosecutor


______

told the defendant orally that the government had no interest


in

forfeiting

provided

farm.

The

resulting

plea

agreement

for the defendant to forfeit $3,000 found on him at

the time of
later

his

his arrest.

effort by

The Eleventh

the government

Circuit held that

to forfeit

the farm

was a

breach of the bargain.


The court

in Arnett
______

reasoned that the

specific $3,000

forfeiture provision in the agreement gave the defendant some


basis in the

document for

thinking that this

was the

only

forfeiture to be sought, at least when the document was taken


in

the context

of

agreement were read


mean

that

counsel

the earlier

as the defendant claimed

forfeiture was

arguably

discussion.

had

limited
_______

reason

to

to

the

plea

to read it--to

$3,000--then defense

think

reference to the farm was required in

If

that

no

separate

the document or in the

Rule 11 colloquy.
In this
written

case, we

agreement

misconstrued,
a

do not

can

be

see how

construed,

The

agreement did

not

sentencing recommendations; indeed, it


each side

sentence.

or

even

the

reasonably

as a promise by the government not to move for

departure.

that

any language in

was

free to

commit anyone

as to

specifically provided

petition for

an "appropriate"

The prosecutor's sample guideline calculation was

-7-7-

not

part

calculations

of

the

agreement,

and

appear to be commonplace.

such

illustrative

In sum, it would not

be reasonable to read the agreement to establish, or the Rule


11 colloquy to preserve,

a promise by the government

not to

move for a departure.


It
do

is worth adding that in this case, unlike Arnett, we


______

not have

forfeiture

an apparent
in Arnett was

threat of

unfairness.

ultimately in

While the

the control

of the

______
prosecutor, the

departure decision in this case lay with the

district court.

The

district judge said that he

would have

considered an upward departure based on criminal history even


if the government had
of
this

never raised the subject.

Connolly's record,
sentiment.

yet to

Further, the

be recounted,

The nature

amply explains

presentence report

proposed

that the district court consider such a departure.


Under ordinary rules these facts might also suggest that
if

the government did

make and

that breach could still

break an

be deemed harmless.

urges this as an alternative ground


not try to square
404

United States v. Canada,


_____________
______

Cir. 1992).

The

government

for affirmance, but does

its position with Santobello v.


__________

U.S. 257 (1971), which

Compare Kingsley
_______ ________

explicit promise,

appears to remain

We leave

the law.

960 F.2d 263, 271 (1st

v. United States, 968


______________

See
___

Cir. 1992).

F.2d 109,

this issue for another day

-8-8-

New York,
________

115 (1st
and decide

this case on the ground that the government did not break any
promise to which it was committed by the final agreement.
In a

related argument

court erred
history.
and

on the

merits

Connolly says that


in departing

the district

based on

criminal

Connolly's record of criminal conduct, convictions

pending charges

assault

was

conviction

history

that

point, Connolly

malicious

lengthy.

damage,

Apart from

represented
had been

larceny,

his

the Florida

first

convicted for

multiple

criminal
car theft,

assaults,

weapons

offenses and various drug offenses, in addition to other less


serious charges.
convictions

For

did not

history points.
court

may

defendant

the

automatically

upward

reliable

does not

of the defendant's past

criminal

the district

"the criminal history category

likelihood" of future crime.

age--these

translate into

wherever

is initially placed]

the seriousness

reasons--such as

The guidelines provide that

depart

indicates that

various

information
[in which the

adequately reflect
criminal conduct or

U.S.S.G.

4A1.3.

the district court followed

the guidelines' methodology

departures

adjustment

criminal

by

making

an

history category

and then

range that corresponded to the new


determined the

new

in

the

criminal history

category

for

defendant's

applying the
category.

Here,

Id.
___
by

guideline
The court
awarding

points for a prior armed burglary conviction that

fell about

-9-9-

two

years

beyond

the

15-year

cut-off

period.

Id.
___

4A1.2(e)(1).
In this court, Connolly objects

to the departure on the

ground that the prior conviction was a single incident,

long

in the past, that did not closely resemble the present crime.
But

the district court did not make the adjustment solely on

account

of

substantial

the single
criminal

prior
career

conviction but
which,

after

because
a

of a

period

of

reasonably good behavior, Connolly gave evidence of resuming.


The
in

17-year-old conviction, bearing some general resemblance


type to

the

current

offense,

was

used

simply

as

benchmark to measure the departure.


The district court's
degree of,

judgment as to

departure based on uncounted

the need for,

and

criminal history is

subject to substantial deference


States v.
______

Mottram, 34
_______

on judicial review.

F.3d 1065 (1st

already noted the defendant's

We have

record and the defendant's two

recent crimes--the recent Florida


offense in this case.

Cir. 1994).

United
______

assault and the armed drug

It is unnecessary to embellish matters

by describing in more detail the very dangerous home invasion


in this

case, which

Connolly's

nearly resulted

in several

deaths, or

prior motorcycle-gang affiliations and their role

in this case.
Connolly's
court's

remaining arguments

findings as to the

relate to

the district

quantity of drugs and Connolly's

-10-10-

leadership role.
unreliable

Connolly says that these findings rested on

hearsay, thus violating

the Sixth Amendment.


justify

the findings.

both the

guidelines and

He also says that the evidence does not


Reliable
________

hearsay

can be

used

at

sentencing, United States v.


_____________

Zuleta-Alvarez, 922 F.2d 33, 36


______________

(1990),

U.S. 927

cert. denied,
_____________

reliable evidence

500

supported the

(1991),

findings here is

appeal under the "clear error" standard.


Since no drugs were
to

Connolly

depended

confederates

expected to find.

defendants

were assuredly

presentence
testified.

report
But

Id. at 36-37.
___

and

what

quantity

he

and

his

v. Piper, 35
_____

The views of Connolly's co-

hearsay,
by

on

United States
_____________

611, 615 (1st Cir. 1994).

whether
tested on

present in the house, the

attributable

F.3d

and

an

being

reported in

investigating

officer

the co-defendants were generally

the
who

consistent

in fixing 320 pounds as about the least that Connolly and the
others
to

expected to find.

The district court was not obliged

credit Connolly's own statement that he did not expect to

find any drugs at all.

United States v. Brewster,


_____________
________

1 F.3d 51

(1st Cir. 1993).


As
offense

for
but,

recruited four

"leadership,"
at the

Connolly

behest

of the

other men into

did

not

original

concoct

plotters, he

the venture, claimed

share of the expected profits, and negotiated terms


original plotters.

Other co-defendants pointed

-11-11-

the

a large
with the

to Connolly

as

giving

orders

execution of the

to
plan.

others

in the

or those

of a

testimony.
Affirmed.
_________

planning

Connolly could permissibly

to be a leader or organizer, U.S.S.G.


district court was not

actual

3B1.1(a).

and

be found
Again, the

required to accept Connolly's denials

close friend,

who gave

rather insubstantial

-12-12-