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Fourth Circuit enforces minor participant departure for allegedly low-producing drug conspiracy gopher

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To those who have expended substantial energy and frustration finding, hiring, training and retaining good employees, imagine how much tougher it is for criminal enterprises to find good help, considering that they cannot exactly advertise job openings on CraigsList.

Enter Malcolm Dawson, who plead guilty to a drug conspiracy whereby the parties agreed the prosecutor would recommend a two-level sentencing departure for his minor participation in the conspiracy. How minor was his participation? "The extensive drug conspiracy involved at least twenty-five people, and Dawson only was used from time-to-time by Beaufort as a driver and delivery person. The parties agree that Dawson was unreliable in providing these services." U.S. v. Dawson. ___ F.3d ___ (4th Cir., Dec. 3, 2009) (emphasis added).

Perhaps Dawson’s less than energetic service to the conspiracy spilled into the probation agent’s silence about the two-point departure and then spilled into the prosecution and trial defense counsel, neither of whom raised any objection right through the sentencing date. In any event, the Fourth Circuit fixed the oversight, and remanded for a new sentencing hearing as a remedy. Here is the essence of Dawson:

When a claim of breach of a plea agreement has been preserved, we review the district court’s factual findings for clear error and its "application of principles of contract interpretation de novo." United States v. Bowe, 257 F.3d 336, 342 (4th Cir. 2001). However, because Dawson did not claim in the district court that the government had breached the plea agreement, our review is for plain error. Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).

Plain error requires the existence of (1) an error, (2) that is plain, (3) that affects the defendant’s substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. The defendant bears the burden of satisfying each of the elements of the plain error standard. United States v. Vonn, 535 U.S. 55, 59 (2002). "[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). "It is well established that the interpretation of plea agreements is rooted in contract law, and that each party should receive the benefit of its bargain." United States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994) (citation and internal quotation marks omitted). "A central tenet of contract law is that no party is obligated to provide more than is specified in the agreement itself." Id. "Accordingly, in enforcing plea agreements, the government is held only to those promises that it actually made," and "the government’s duty in carrying out its obligations under a plea agreement is no greater than that of fidelity to the agreement." Id. (citation and internal quotation omitted)…

[U]nder the unique circumstances of this case, we agree with Dawson that he has met his burden of establishing plain error. Accordingly, we vacate the sentence and remand for resentencing before a different district judge.

U.S. v. Dawson.