FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S. District Judge
Aidlin for appellant.
B. Goodhand, Attorney, U.S. Department of Justice, Criminal
Division, Appellate Section, with whom William D. Weinreb,
Acting U.S. Attorney, Victor A. Wild, Assistant U.S.
Attorney, Ryan M. DiSantis, Assistant U.S. Attorney, Kenneth
A. Blanco, Acting Assistant Attorney General, U.S. Department
of Justice, and Trevor N. McFadden, Acting Principal Deputy
Assistant Attorney General, U.S. Department of Justice, were
on brief, for appellee.
Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE
David Scott claims, among other things, that the district
court acted improperly in rejecting a plea agreement he had
negotiated with the government, in not allowing him to
negotiate and submit a new agreement, and in sentencing him
before he read the presentence report ("PSR").
Finding no combination of error and prejudice sufficient to
set aside Scott's sentence, we affirm.
August 2010, the government charged Scott with wire and bank
fraud in violation of 18 U.S.C §§ 1343-44 and
unlawful monetary transactions in violation of 18 U.S.C.
§ 1957, all as described in our opinion issued today
affirming Scott's conviction on those charges. See
United States v. Scott, No. 15-2405. While those charges
were pending, the government secured Scott's indictment
on additional wire fraud charges arising out of acts
committed after his first indictment. Scott was arrested and
detained pending trial.
2015, Scott pled guilty in the first case, without a plea
agreement. In November 2015, the district court sentenced him
to 135 months' imprisonment in that case. Two months
later, Scott and the government entered into a plea agreement
in this second case pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C). If accepted by the court, the
agreement would have bound the court to sentence Scott to six
months' imprisonment on the new wire fraud charges, to be
served concurrently with the term of imprisonment from the
prior case, plus six additional months to be served
consecutively to Scott's other sentences in accord with
18 U.S.C. § 3147, which mandates that an individual
convicted of a crime committed while on release pending trial
serve an additional sentence. The agreement also called for
$49, 000 in restitution, an amount that did not include
attorneys' fees and interest for the victims, and
likewise did not include losses related to certain uncharged
conduct. The district court conducted a change-of-plea
hearing and conditionally accepted the plea agreement, but
noted that it would reserve final acceptance or rejection
until it had considered the PSR. Sentencing was set for March
March 23, a group of victims filed a sentencing memorandum,
urging the district court to reject the proposed plea
agreement and impose, at a minimum, a consecutive prison term
of at least twelve months and a restitution award that
included attorneys' fees and interest. The next day, the
district court docketed a notice stating: "Having
considered the presentence report and the Victim's
sentencing memorandum . . . the Court hereby notifies the
parties . . . of its intention to reject the . . . plea . . .
. The Court concludes that any consecutive sentence of
incarceration of less than 12 months . . . is
insufficient." The next day, counsel for Scott told the
district court at the sentencing hearing that he had
conferred with the government and prepared "a revised
agreement to submit to you with what we interpreted as the
considerations within your order." Neither counsel
disclosed the terms of the proposed submission, and the
district court rejected the effort, saying:
[A]s I understand [Rule 11], . . . the defendant has a choice
when the judicial officer rejects a (C) plea: He can withdraw
his plea and go to trial. . . . Or he can choose not to
withdraw his plea and go forward with the sentencing as of
that moment. There is no new plea to be negotiated.
record reflects that Scott and his attorney then had a
private conversation, following which Scott's attorney,
in Scott's presence, told the court that Scott intended
to maintain his guilty plea and move forward with sentencing.
The district court then proceeded with the sentencing,
ultimately imposing a sentence of forty-one months'
imprisonment, with twenty-nine months attributed to the wire
fraud charge to be served concurrently with Scott's
135-month sentence and twelve months attributed to section
3147 to be served consecutively to both of Scott's other
sentences. In short, as a practical matter, this sentence
meant that Scott would likely serve six additional months of
prison time beyond the amount to which he and the government
had conditionally agreed. The court also ordered Scott to pay
a total of $265, 535 in restitution to various victims
identified by their initials in the PSR.
conclusion of the sentencing hearing, the following exchange
MR. GLEASON [counsel for Scott]: Judge, [Scott] wants to wish
to express to the Court that he did not see the Presentence
Report and that he was not aware of initials and people being
owed money on initials as being an issue for purposes of the
THE COURT: Does Probation wish to respond to that?
MS. ROFFO [representative from the probation office]: Your
Honor, the Presentence Report was disclosed to counsel, and
counsel is to share it with his client.
THE COURT: Mr. Gleason, you got the Presentence Report,