USA v. Christopher Buonocore

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14427
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER BUONOCORE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00402-TPB-JSS-1
____________________
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2 Opinion of the Court 21-14427
Before L UCK , LAGOA , and B LACK , Circuit Judges.
PER CURIAM:
Christopher Buonocore, a counseled federal prisoner, ap-
peals his 180-month total sentence. He moves to summarily re-
verse the district court and to stay the briefing schedule. He asserts
he is entitled to relief because the Government did not recommend
a total sentence within the guidelines range, as agreed to in the
written plea agreement. The Government acknowledges it
breached the plea agreement, agrees with Buonocore that the case
should be remanded, and recommends that we remand to the dis-
trict court to a different judge for resentencing.
I. BACKGROUND
In 2020, Buonocore pleaded guilty pursuant to a written plea
agreement to six counts of cyberstalking, 18 U.S.C. §§ 2261(b),
2261A(2)(B). In relevant part, the written plea agreement provided
that, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B),
the Government “will recommend to the Court that the defendant
be sentenced within the defendant’s applicable guidelines range as
determined by the Court pursuant to the United States Sentencing
Guidelines, as adjusted by any departure the United States has
agreed to recommend in this plea agreement.” The district court
ultimately accepted Buonocore’s plea and found him guilty.
Buonocore’s presentencing investigation report calculated
his original guidelines imprisonment range to be 108 to 135
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21-14427 Opinion of the Court 3
months’ imprisonment. At sentencing, the district court found his
guidelines range was only 51 to 63 months’ imprisonment. The
Government asked the court to vary upward and sentence him
within his original guidelines range of 108 to 135 months’ impris-
onment. The Government later verified that it was asking for a
135-month total sentence.
The district court, however, varied upward beyond the total
term sought by the Government, and sentenced Buonocore to a
total of 180 months’ imprisonment, followed by three years of su-
pervised release. At no point in the proceedings did either the Gov-
ernment or Buonocore mention that the plea agreement required
the Government to recommend a total sentence within the guide-
lines range as calculated by the district court.
Prior to briefing in this appeal, Buonocore filed the present
motion for summary reversal, arguing he had entered into a valid
plea agreement that the Government did not follow when it rec-
ommended he be sentenced outside the announced guidelines
range of 51 to 63 months’ imprisonment.
II. DISCUSSION
“[W]hen a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be fulfilled.”
Santobello v. New York, 404 U.S. 257, 262 (1971). “A material
promise by the government, which induces a defendant to plead
guilty, binds the government to that promise,” meaning “the
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4 Opinion of the Court 21-14427
government breaches a plea agreement when it fails to perform the
promises on which the plea was based.”
United States v. Hunter,
835 F.3d 1320, 1324 (11th Cir. 2016) (quotation marks omitted). A
defendant can bargain not just for the dismissal of charges, but also
for a particular sentencing recommendation by the prosecution.
See Santobello, 404 U.S. at 262. After the government concedes
that such a promise was made, it is unlikely it could argue that its
inadvertent breach was immaterial.
See id.
We grant Buonocore’s motion, vacate his total sentence,
and remand the case back to the district court for resentencing be-
fore a different judge.1 Buonocore has shown plain error.
See
United States v. Hedges, 175 F.3d 1312, 1317 (11th Cir. 1999) (re-
viewing an issue not preserved in a criminal case for plain error).
The Government agreed to recommend a total sentence within the
sentencing guidelines range in the plea agreement. The district
court announced a guidelines imprisonment range of 51 to 63
months. The Government then recommended a 135-month total
sentence, which was outside the announced guidelines range.
Thus, there was an error that is plain.
See United States v. De La
1 “[T]here are two remedies available when a plea agreement is breached.”
Hunter, 835 F.3d at 1329 (quotation marks omitted). The first is to “remand
the case for resentencing according to the terms of the agreement before a
different judge.”
Id. The second is to “permit the withdrawal of the guilty
plea.”
Id. We have the discretion to choose between these two remedies, but
withdrawal of the plea is the less favored option.
Id.
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21-14427 Opinion of the Court 5
Garza, 516 F.3d 1266, 1269 (11th Cir. 2008) (stating, “[u]nder plain
error review, there must be (1) an error, (2) that is plain, (3) that
affects the defendant's substantial rights, and (4) that seriously af-
fects the fairness, integrity, or public reputation of judicial proceed-
ings”).
As for substantial rights, part of the plea agreement included
recommending a total sentence within the guidelines and the Gov-
ernment was bound by that promise. By recommending a sen-
tence over the guidelines range, the Government materially
breached a promise that must be fulfilled, impacting Buonocore’s
rights.
See Santobello, 404 U.S. at 262. As the Government
breached the agreement, the interests of justice and recognition of
the duties of the prosecution in relation to promises made during
the plea negotiation also justify remanding the case back to the dis-
trict court, in front of a different judge, for resentencing.
Id. at 262–
63 (concluding the interests of justice and the recognition of the
duties of the prosecution in relation to promises made in the nego-
tiation of guilty pleas can serve as grounds to remand cases in the
case of a government breach of an agreement);
see also Hunter,
835 F.3d at 1329.
Therefore, because Buonocore’s position is clearly correct
as a matter of law, we GRANT his motion for summary reversal
and DENY as moot his motion to stay the briefing schedule.
See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
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6 Opinion of the Court 21-14427
1969)2 (explaining summary disposition is appropriate, in part,
where “the position of one of the parties is clearly right as a matter
of law so that there can be no substantial question as to the out-
come of the case”).
2 In
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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