U.S. v. Swanberg

• Decision Date: 03 June 2004
• Docket Number: No. 02-1659.,No. 02-1836.,02-1659.,02-1836.
• Citation: 370 F.3d 622
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Craig Alan SWANBERG (02-1659) and Adam Elwin Tuimala (02-1836), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

370 F.3d 622

UNITED STATES of America, Plaintiff-Appellee, v. Craig Alan SWANBERG (02-1659) and Adam Elwin Tuimala (02-1836), Defendants-Appellants.

No. 02-1659.

No. 02-1836.

United States Court of Appeals, Sixth Circuit.

Argued April 29, 2004.

Decided and Filed June 3, 2004.

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Eva A. Kipper (argued and briefed), McDonald, Marin & Kipper, Marquette, MI, Jane E. Lee (argued and briefed), Portland, ME, for Appellants.

Joan E. Meyer (argued and briefed), Assistant United States Attorney, Grand Rapids, MI, for Appellee.

Before GUY, GILMAN, and COOK, Circuit Judges.

GILMAN, Circuit Judge.

Craig Swanberg and Adam Tuimala were part of a drug distribution ring operating in Illinois and Michigan. Tuimala sold cocaine and marijuana to Terri Sanderson of Marquette, Michigan. Sanderson in turn distributed the drugs to various individuals, including Swanberg, who would then sell the drugs and share the profits with Sanderson. Swanberg was convicted by a jury of conspiring to distribute cocaine and of possessing cocaine with the intent to distribute, all in violation of 21 U.S.C. §§ 846 and 841(a)(1). He was sentenced to 63 months in prison. Tuimala pled guilty to one count of conspiring to distribute cocaine, also in violation of 21 U.S.C. §§ 846 and 841(a)(1), and was sentenced to 84 months in prison.

Swanberg contends on appeal that the district court committed clear error in determining the drug quantity that was attributable to him for sentencing purposes. Tuimala argues that his waiver of the right to appeal his sentence was invalid because his plea agreement with the government was breached when the district court unwittingly relied on information from Tuimala's guilty-plea proffer to enhance his sentence for a leadership role in the offense. For the reasons set forth below, we AFFIRM Swanberg's sentence but VACATE Tuimala's sentence and REMAND his case for the limited purpose of resentencing without the sentence enhancement.

I. ANALYSIS

A. The quantity of drugs attributable to Swanberg

Swanberg contends that the district court erred in attributing 18.75 ounces of cocaine and 9 grams of marijuana to him in calculating his sentence. "We review a district court's drug quantity determination for clear error. The government must prove the amount to be attributed to a defendant by a preponderance of the evidence." United States v. Hernandez, 227 F.3d 686, 697 (6th Cir.2000) (citations omitted). This court has also held that "[t]estimonial evidence from a coconspirator may be sufficient to determine the amount of drugs for which another coconspirator should be held accountable." Id.

At sentencing, the district court relied on the following statement of facts set forth in the Presentence Report:

Using the most conservative estimate of the quantity of drugs received by Ms. Sanderson from Mr. Tuimala, she is culpable for 25 ounces (708.75 grams) of cocaine and 8 pounds (3,628.8 grams) of marijuana. This quantity was arrived at by taking into account Ms. Sanderson's report of her frequency and quantity of purchases from Mr. Tuimala, along with Mr. Tuimala's report of his sales to Ms. Sanderson and her boyfriend when the two traveled to Chicago for said transactions. Using a two-week interval between purchases beginning on February 1, and ending on May 19, 2001, it was estimated a total of eight transactions can be attributed to Ms. Sanderson. The evidence at hand reflects four 2-pound purchases of marijuana, and the following cocaine purchases: four at 4 ounces each (based [upon] Mr. Tuimala's report and Ms. Sanderson's acknowledgment of transactions of up to 4 ounces), one at 3 ounces (based on Ms. Sanderson's report of transactions of 2 to 3 ounces), and three at 2 ounces each (based on conservative application, to the remaining number of transactions of the minimum amount Ms. Sanderson reported she would purchase/receive from Mr. Tuimala).

Ms. Sanderson testified [that] Mr. Swanberg received 75 percent of the cocaine she purchased from Mr. Tuimala. Taking into account the conservative quantity of cocaine attributed to Ms. Sanderson, receipt of this percentage of the total amount distributed or intended for distribution provides a culpability attributable to Mr. Swanberg of 18.75 ounces (531.5 grams).

Although Swanberg objected to the Presentence Report's calculation of the drug quantity attributable to him, he produced no contradictory evidence at the hearing. This court has held that "[i]n most instances, a sentencing court may rely on undisputed facts that are recited in a presentence report to conclude that the defendant committed acts offered as relevant conduct." United States v. Shafer, 199 F.3d 826, 830 n. 1 (6th Cir.1999); see also Fed.R.Crim.P. 32(i)(3) ("At sentencing, the court ... may accept any undisputed portion of the presentence report as a finding of fact...."). In the present case, the facts set forth in the Presentence Report were consistent with the other evidence presented in Swanberg's case. The district court therefore did not clearly err by relying on the Report in determining the quantity of drugs attributable to Swanberg.

B. Tuimala's waiver of his right to appeal

Criminal defendants may waive their right to appeal as part of a plea agreement so long as the waiver is made knowingly and voluntarily. United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001). In the present case, Tuimala waived his right to appeal his sentence in his plea agreement, but now contends that the waiver was not knowingly made because the district court erroneously informed him at the sentencing hearing that he had the right to appeal. "This Court reviews the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo." United States v. Smith, 344 F.3d 479, 483 (6th Cir.2003).

The plea agreement between Tuimala and the government states that "[t]he defendant and the United States knowingly and expressly waive all rights conferred by 18 U.S.C. § 3742 to appeal whatever sentence is imposed, including any issues that relate to the establishment of the guideline range...." At the plea colloquy, Tuimala answered "yes" when the district court asked if he "had an adequate opportunity to read and review this entire plea agreement with [his] attorney[.]" The prosecutor then read into the record various parts of the plea agreement. He also explained that the agreement "specifically states that there is no appeal — Mr. Tuimala waives the right to appeal the calculation of the guideline range and ... he can only appeal a departure upward or downward from the guideline range or a sentence that exceeds the maximum set by law." Finally, the district court expressly found that "the plea is made knowingly and with full understanding of the rights that I've explained to the defendant." At the subsequent sentencing proceeding, however, the district court erroneously informed Tuimala that "[y]ou have a right of appeal from the sentence in this matter." Tuimala contends that, as a result of the district court's incorrect statement at sentencing, he did not knowingly give up his right to appeal.

This court faced a nearly identical situation in United States v. Fleming, 239 F.3d 761 (6th Cir.2001), where the defendant waived his right to appeal his sentence as part of a written plea agreement. At the plea colloquy, the district court orally informed the defendant that "the Government has the right to appeal any sentence that I might impose. You, on the other hand, have given up your right to appeal any sentence that I might impose, even though you don't know what the sentence is going to be." Id. at 763. The court also found "that Fleming's guilty pleas had been knowingly and voluntarily entered." Id. At the subsequent sentencing proceeding, however, the district court erroneously informed the defendant that "you do have the right to appeal this matter to the United States Court of Appeals for the 6th Circuit." Id. On appeal, this court held that "[t]he record here clearly demonstrates that Fleming understood the waiver contained in the plea agreement [,]" id. at 764, and that the district court's subsequent statement to Fleming did not restore his right to appeal. Id. at 765. This court therefore dismissed the appeal. Id. at 765-66.

As in Fleming, the waiver provision in the present case was contained in a written plea agreement, Tuimala was informed in open court that he had given up his right to appeal whatever sentence he received, and the district court expressly found that Tuimala made the waiver knowingly. Tuimala also "had an adequate opportunity to read and review this entire plea agreement with [his] attorney[,]" a factor not mentioned in Fleming, but which also suggests that Tuimala knowingly waived his appellate rights. We therefore conclude that Tuimala knowingly waived the right to appeal whatever sentence he received, despite the district court's incorrect statement to the contrary at Tuimala's sentencing hearing.

C. The government's alleged breach of its plea agreement with Tuimala

1. Standard of review

Tuimala's alternative position is that even if he would have normally been barred from appealing due to his waiver, he is not so bound in the present case because the plea agreement was breached when information from his guilty-plea proffer was used to enhance his sentence. This use was contrary to the government's express promise that the proffer information would not be used "in a subsequent prosecution or at sentencing in this case."

Whether the plea agreement was breached is an issue that we would presumptively review de novo. United States v. Barnes, 278 F.3d 644, 646 (6th Cir.2002). In the present case, however, Tuimala objected at sentencing to the district court's application of the sentence enhancement, but did not argue that the plea agreement had been breached. The government therefore contends that Tuimala has...