United States District Court, W.D. Virginia, Harrisonburg Division
M. Lorish, Assistant Federal Public Defender,
Charlottesville, Virginia, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge
defendant, Richard Leroy Fulton, has filed a Motion for
Specific Performance of Plea Agreement. Fulton argues that
the government breached his plea agreement's provision
that he “shall be held responsible for . . . more than
1.5 KG of cocaine base” when it argued that well over
25 kilograms of cocaine base were attributed to him, and
therefore he is ineligible for a sentence reduction pursuant
to Amendment 728 to the U.S. Sentencing Guidelines. For the
reasons that follow, I find that the government did not
breach the plea agreement, and I will deny the motion.
October 25, 2002, Fulton pleaded guilty to conspiring to
distribute and possess with the intent to distribute more
than 50 grams of cocaine base and possessing a firearm after
being convicted of a felony. In the plea agreement, Fulton
and the government agreed “for purposes of Guideline
Sections 2D1.1 and 1B1.3, that [Fulton] shall be held
responsible for conspiring to distribute and distributing
more than 1.5KG of cocaine base.” Plea Agreement 3, ECF
Presentence Investigation Report (“PSR”)
determined that because “at least 1.5 kilograms”
of cocaine base had been attributed to him, he had a base
offense level of 38. PSR ¶ 13, ECF No. 90. The PSR's
description of Fulton's offense conduct stated that
“[n]umerous co-conspirators indicated that Fulton
routinely traveled to New York on at least a weekly basis
where he purchased between 500 and 750 grams of cocaine
hydrochloride.” PSR ¶ 8. He continued this conduct
for well over a year, making him responsible for the
distribution of “well over 25 kilos of cocaine
base.” PSR ¶ 8.
16, 2003, Fulton was sentenced to 360 months imprisonment.
The Judgment entered in Fulton's case indicates that the
court adopted the factual findings in the PSR. In its
Statement of Reasons, the court stated that the
“[d]efendant has an extensive criminal history, and was
the leader of conspiracy, that was responsible for over 25
kilos of cocaine base.” J. 8, ECF No. 55.
January 21, 2019, Fulton filed a Motion for Reduction of
Sentence pursuant to Amendment 782 to the Sentencing
Guidelines. In its response to the motion, the government
argued that because over 25 kilograms of cocaine base had
been attributed to Fulton in his PSR, the amendment does not
have the effect of lowering his sentencing guideline range,
and thus he is ineligible for a sentence reduction. I agreed
with the government and found Fulton ineligible for a reduced
sentence. Op. & Order, May 1, 2019, ECF No. 109.
the government's response to his motion for a reduced
sentence, Fulton filed the present motion.
contends that the government's argument that he was
responsible for well over 25 kilograms of cocaine base in its
response to his motion for a reduced sentence was a breach of
his plea agreement's provision that he “shall be
held responsible for . . . more than 1.5 KG of cocaine
base.” Plea Agreement 3, ECF No. 108-1. He argues that
the Fourth Circuit's decision in United States v.
Edgell, 914 F.3d 281 (4th Cir. 2019), supports this
interpreting plea agreements, we draw upon contract law as a
guide to ensure that each party receives the benefit of the
bargain, and to that end, we enforce a plea agreement's
plain language in its ordinary sense.” United
States v. Warner, 820 F.3d 678, 683 (4th Cir. 2016)
(internal quotation marks and citation omitted).
illustrate, in the plea agreement at issue in United
States v. Edgell, the parties had stipulated that the
defendant was responsible for distributing “less than
five (5) grams of substances containing a detectable amount
of methamphetamine, ” which corresponded to a
sentencing guideline range of 10 to 16 months, and that the
government would recommend a sentence at the lowest end of
the applicable guideline range. 914 F.3d at 285. After the
agreement was signed, the government received drug analysis
results showing that the substance at issue was actual
methamphetamine rather than a substance containing
methamphetamine, and it submitted this analysis to the
probation office. Id. Based on the analysis, the
probation office calculated the defendant's sentencing
range to be 30 to 37 months. Id. At sentencing, the
government advocated for a sentence at the low end of this
30-to-37-month range. Id. The Fourth Circuit held
that the government breached its plea agreement by requesting
a sentence that was inconsistent with its stipulation as to
the defendant's drug conduct. Id. at 288.
plain language of Fulton's plea agreement states, in
relevant part, that he “shall be held responsible for .
. . more than 1.5 KG of cocaine base.” Plea
Agreement 3, ECF No. 108-1 (emphasis added). In its ordinary
sense, this language permits holding Fulton responsible for
an amount of cocaine base greater than 1.5 kilograms. Thus,
unlike in Edgell, the government has not requested a
sentence inconsistent with its stipulation as to Fulton's
drug conduct - a sentence ...