On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 02-cr-00295-6). District Judge: Honorable Christopher C. Conner.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) October 24, 2005
Before: SLOVITER, FISHER, Circuit Judges, and THOMPSON, District Judge*fn1
Appellant Bennae Floyd pled guilty to traveling interstate or causing others to travel interstate to facilitate drug trafficking in violation of 18 U.S.C. § 1952(a)(3) and was sentenced to forty-eight months' imprisonment. Floyd appeals, contending that her sentence should be vacated because the Government breached its promise to consider recommending a downward departure from the Sentencing Guidelines if Floyd provided the Government with substantial assistance.
The relevant superceding indictment charged Floyd with criminal conspiracy to distribute 50 grams or more of crack cocaine and five kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841 and traveling interstate or causing others to travel interstate to facilitate drug trafficking in violation of 18 U.S.C. § 1952(a)(3). Co-defendants Steven Smith and Kelvin Smith were also named in that charge. Floyd pled not guilty to all charges.
Shortly after return of the fifth Superceding Indictment, Floyd and the United States entered into a plea agreement which stated, inter alia, "The defendant agrees to plead guilty to . . . traveling interstate or causing others to travel interstate to facilitate drug trafficking in violation of Title 18, United States Code, Section 1952 (a)(3). The maximum penalty for that offense is imprisonment for a period of five years." App. at 69. The plea agreement also stated that the Government "may request" a downward departure for Floyd's cooperation if Floyd "renders substantial assistance." App. at 73.
Pursuant to the terms of the plea agreement, Floyd pled guilty on April 20, 2004 to traveling or causing others to travel interstate to facilitate drug trafficking. The day before trial was scheduled to begin for Floyd's co-defendants, Floyd traveled from South Carolina to Pennsylvania to speak with co-defendant Steven Smith. The Government acknowledged that Floyd's conversations with Smith "probably did at least have some influence on his decision to plead guilty." Supp. App. at 25.
On February 26, 2005, a probation officer filed a presentence report ("PSR") which stated that the charges against Floyd resulted in a base offense level of thirty-eight. Because Floyd accepted responsibility for her actions, three levels were deducted and Floyd's offense level was determined to be thirty-five. Floyd's criminal history placed her in Category VI. The PSR noted that "[h]ad the defendant been convicted as charged in the Indictment, she would have been facing a . . . guideline range of 292 - 365 months." PSR para. 56. In contrast, the statutory maximum sentence for the crime to which Floyd pled guilty, i.e., traveling or causing others to travel interstate to facilitate drug trafficking, is sixty months, as stated in the plea agreement.
At the sentencing hearing, the Government chose not to recommend a downward departure from the sentencing guidelines. According to the Government, "Ms. Floyd's sentencing guidelines range would have been 292 to 365 months but for the fact that she had a charge bargain. . . . [T]he charge bargain was obviously a very significant charge bargain here and [the Government] declined to authorize the motion for downward departure." Supp. App. at 25.
The District Court nonetheless did not accept the recommendation of the PSR that Floyd's offense level was thirty-five. Instead, it found that Floyd's offense level should be calculated based on a Criminal History Category of VI and a cocaine hydrochloride quantity of four to five ounces. This led to a Guidelines sentence of forty-one to fifty-one months, less than the sixty-month ...