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Norman C. Bay, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the briefs), Albuquerque, New Mexico, for Defendant-Appellee.

BACKGROUND

Peterson's plea agreement provided, in pertinent part, that the United States "will not oppose a downward departure if there is a good faith basis for a downward departure." After entering into the plea agreement and prior to the sentencing hearing, Peterson filed a motion for a downward departure. In the motion, Peterson argued for a downward departure on a number of grounds: (1) the offense to which the defendant pleaded guilty was aberrant behavior; (2) the defendant's age and ill health; (3) the defendant's post-arrest rehabilitation; (4) the attitude and concerns of the victim; and (5) the defendant's amenability to treatment and potential for obtaining treatment.

Although the prosecution did not file a response to the motion for a downward departure, the prosecution made a number of comments regarding Peterson's motion at the sentencing hearing. Peterson alleges that the prosecutor breached the plea agreement when he made these comments.

Peterson did not object to the prosecution's statements at the time of sentencing. The only time Peterson raised below the possibility that the prosecution may have breached its promise in the plea agreement not to oppose a downward departure request made in good faith was in the context of a Motion for Release Pending Appeal. Peterson is not challenging on this appeal the district court's order denying his Motion for Release Pending Appeal. Thus, we review Peterson's current challenge to his sentence based on the prosecution's alleged breach of the plea agreement for plain error.

With respect to Peterson's argument that his behavior was aberrant, the prosecution requested the district court to take judicial notice of three paragraphs in the Presentence Report ("PSR") that gave further details relating to the offense for which Peterson was convicted and other similar offenses for which Peterson was not convicted as a result of the plea bargain. The prosecution also stated during the hearing that Peterson's motion cited no case law to support the argument that Peterson should receive a downward departure based on his age and health. The prosecution further remarked: "As the Court is aware, [age and health] is an issue with many defendants who come before this Court, . . . ."

In addition, the prosecution agreed that Peterson required post-arrest treatment and requested the district court to take judicial notice of the probation officer's recommendation that Peterson be imprisoned at Butner Federal Correctional Institution ("Butner FCI") in the PSR. The prosecution explained to the court that Peterson would be eligible to participate in the sex offender treatment program at Butner FCI regardless of the duration of the sentence imposed by the court.

The prosecution went on to state that the government did not take a position with respect to either the issue of the victim's wishes or the amenability to treatment. The prosecution added:

[I]n this case, as the Court is aware, based upon a review of the presentence report, Mr. Peterson was looking at an amount of time from 235 to 293 months if he had gone to trial in this case. As the court is aware, the guidelines provide 97 to 121 months for the offense he pled to, Your Honor. This case, like many of the child sexual abuse cases that I prosecute, they're very hurtful, Your Honor, to both the victim and the defendant, Your Honor.

This prosecutor is not a counselor or a psychologist; however, based upon my discussion with other counselors, Your Honor, one of the first steps in rehabilitation is acceptance of responsibility. Mr. Peterson has accepted responsibility; however, this was in­the last offense that's set forth in the indictment and set forth in the presentence report is this occurred until the victim was ten years old, Your Honor. Just like the Court to be aware of that. In addition to that Your Honor, there may be forgiveness; however, there are consequences to one's acts.

Under the federal sentencing guidelines, Peterson's prison term ranged from 97 to 121 months and supervised release following his imprisonment ranged from three to five years. At the close of the hearing, the court concluded that a downward departure was not appropriate in this case and sentenced Peterson to 97 months imprisonment, followed by three years of supervised release. At no time did the district court express the view that the government had opposed Peterson's Motion for Downward Departure.

DISCUSSION A claim that the government has breached a plea agreement is a question of law that we review de novo. See United States v. Courtois, 131 F.3d 937, 938 (10th Cir. 1997). However, where, as here, Peterson did not object to the government's statement at the time of the sentencing, we will review this claim of error only for plain error. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997); Fed. R. Crim. P. 52(b). We apply a two-step analysis to determine if there is a breach: "(1) we examine the nature of the government's promise; and (2) we evaluate this promise in light of the defendant's reasonable understanding of the promise at the time the guilty plea was entered." United States v. Brye, 146 F.3d 1207, 1210 (10th Cir. 1998). Principles of general contract law guide our analysis of the government's obligations under the agreement. See id. Thus, in assessing whether the government has breached the agreement, we look to the express terms of the agreement and will construe any ambiguities against the government as the drafter of the agreement. See id.; United States v. Cerrato-Reyes, 176 F.3d 1253, 1264 (10th Cir. 1999). This court has also explained that:

[T]he government breaches an agreement not to oppose a motion when it makes statements that do more than merely state facts or simply validate facts found in the Presentence Report and provides a legal characterization of those facts or argues the effect of those facts to the sentencing judge.

Brye, 146 F.3d at 1211 (internal citation and quotations omitted).

1. Comments Relating to the Aberrant Behavior Argument

Peterson argues that the prosecution improperly opposed Peterson's claim that his behavior was aberrant by referring to evidence of other sexual abuse by Peterson contained in the PSR. In addressing whether the government breached the plea agreement in this respect, we must begin by observing that the government qualified its promise in the plea agreement not to oppose a downward departure motion by requiring that any such motion be made in good faith. In other words, the government implicitly reserved the right to oppose a motion for a downward departure that was not made in good faith. In this case, the PSR shows that the sexual assault for which Peterson was convicted was not an isolated incident, but rather Peterson had engaged in extensive and prolonged conduct of sexual assault on minors. Based on the evidence contained in the PSR, we conclude that Peterson's claim that the sexual assault for which he was convicted was aberrant behavior was not made in good faith. This court therefore finds that the United States did not breach the plea agreement when it called the court's attention to evidence in the PSR of other sexual abuse by Peterson.

1. Other Comments

Peterson urges that the prosecutor also attempted to persuade the court not to depart downward from the guidelines, and effectively opposed the motion, when he made other comments to the court during the sentencing hearing. Specifically, Peterson argues that the prosecutor improperly pointed out that Peterson could receive treatment in federal prison and that Peterson could have received a much longer sentence had he elected to go to trial on all six counts in the indictment. The prosecution's statements concerning Peterson's ability to receive treatment in federal prison and the sentence Peterson could have received had his case gone to trial were references to facts contained in the PSR. As this court explained in Brye, the government does not breach its promise not to oppose a motion for a downward departure merely because the prosecutor refers to facts contained in the PSR. The government breaches the agreement by providing a "legal characterization" of the facts or by arguing their effect to the sentencing judge. Because the prosecutor only drew the court's attention to facts contained in the PSR without making any legal argument in connection with the facts, we conclude that the prosecutor did not "oppose" the motion when making these statements.

Peterson further claims that the prosecution implicitly criticized Peterson's post-arrest rehabilitation ground by pointing out that Peterson had accepted responsibility long after he committed the charged sexual abuse. Although a comment of this nature would arguably constitute a "legal characterization" of the facts prohibited by our decision in Brye, our review of the record indicates that the prosecutor's comments relating to Peterson's acceptance of responsibility were ambiguous and most obviously related to a purely factual matter contained in the PSR. ("Mr. Peterson has accepted responsibility; however, this was in­the last offense that's set forth in the indictment and set forth in the presentence report is this occurred until the victim was ten years old.") We therefore find that the prosecution did not violate the plea agreement when referring to Peterson's acceptance of responsibility.

Peterson further urges that the government advocated against the motion by remarking, in closing, that "there may be forgiveness; however, there are consequences to one's acts." This remark is simply a statement of opinion­not legal argument, and it does not seem particularly prejudicial given its high level of generality. Thus, we cannot conclude that this remark resulted in a breach of the plea agreement.

Peterson's remaining objections are more troubling to this court. Peterson argues that the prosecutor opposed the motion when he stated (1) that Peterson had cited no case law to support the argument that age and health concerns would warrant a downward departure and (2) that many defendants have age and health concerns. The prosecutor's statement concerning the lack of precedential support for a downward departure based on age and health may have been improper legal argument. Similarly, the prosecutor's comment that many other criminal defendants have age- and health-related problems suggested that Peterson's problems were not of the unusual or atypical nature required for the court to conclude that a downward departure was appropriate in Peterson's case, and is therefore legal argument. See United States v. Jones, 158 F.3d 492, 496-97 (10th Cir. 1998).

In light of the government's promise in the plea agreement not to oppose a downward departure motion, this court cannot condone the prosecution's decision to present legal arguments concerning the evidence before the court at the sentencing hearing. We have emphasized that "[w]here the government obtains a guilty plea predicated in any significant degree on a promise or agreement of the prosecuting attorney, such promise must be fulfilled to maintain the integrity of the plea." Brye, 146 F.3d at 1209. Despite our disapproval of the government's actions in this case, however, we cannot conclude that these minimal comments amounted to plain error. Moreover, the following statement made by the district court at the sentencing hearing assures us that the breach did not adversely affect Peterson's sentence because the district court properly considered only the facts presented during the sentencing hearing:

The Court has studied the presentence report and the able briefs of counsel for the defendant and the factual presentations that you have made here today and the testimony or remarks of the victim . . . .

These facts lead us to conclude that the breach in this case was immaterial, and does not, in any event, rise to the level of plain error. Cf. United States v. Easterling, 921 F.2d 1073, 1080 (10th Cir. 1990) (concluding that Government's breach of promise in the plea agreement to file a memorandum describing the extent of the defendant's cooperation with the Government was immaterial in light of the fact that the district court indicated that the defendant's sentence would have been greater but for his cooperation with the Government); see also Rodriguez v. New Mexico, 12 F.3d 175, 175 (10th Cir. 1993) ("Although promises made by prosecuting attorneys must be fulfilled to maintain the integrity of the plea, only breaches of material promises will allow a court to conclude that a plea was involuntarily induced and thus constitutionally infirm." (internal citation and quotations omitted)).

For the foregoing reasons, we AFFIRM the sentence of the district court.

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