U.S. v. Vandam

Decision Date10 July 2007
Docket NumberNo. 06-4104.,06-4104.
Citation493 F.3d 1194
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Leonard Dale VANDAM, also known as Sebastian Lopez, also known as Sebastian Lopez Mendoza, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

J. Sorenson, Assistant United States Attorney, with her on the brief), Salt Lake City, UT, for the Plaintiff-Appellee.

Before LUCERO, McKAY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant Leonard Dale VanDam argues that the government breached its duty under his plea agreement by failing to recommend a term of imprisonment at the bottom of the applicable range under the United States Sentencing Guidelines (the "Guidelines"). As a remedy, Mr. VanDam seeks specific performance before the same judge.

We agree that the government breached the plea agreement. We also agree on these facts that Mr. VanDam should receive his requested remedy. Accordingly, exercising our jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291, we VACATE Mr. VanDam's sentence and REMAND to the same sentencing judge for resentencing.

I. BACKGROUND

On December 19, 2001, Mr. VanDam was charged with one count of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and with one count of possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(2).

The government filed a superseding indictment on April 24, 2002. The superseding indictment added a second drug trafficking charge. The two drug trafficking charges stemmed, respectively, from incidents on October 17, 2001 and February 25, 2002. The state police arrested Mr. VanDam on each occasion. The firearm charge was linked only to the October 17, 2001 incident.

A. Plea Agreement

After Mr. VanDam unsuccessfully moved to suppress the evidence seized in connection with the October 17, 2001 incident, he entered into a conditional plea agreement with the government. Mr. VanDam pleaded guilty to the October 17, 2001 drug trafficking charge and to the felon-in-possession charge, although he reserved his right to appeal the suppression ruling. In exchange, the government dropped the February 25, 2002 drug-trafficking charge and, inter alia, agreed to "recommend sentencing at the low end of the guideline range found applicable." R., Supp. Vol. II, Doc. No. 48, ¶ 11(C), at 4. The district court accepted Mr. VanDam's guilty plea on December 13, 2002.

B. First Sentencing

The Presentence Investigation Report ("PSR") recommended a Guidelines range of 188 to 235 months of imprisonment, based upon a total offense level of 33. In calculating the base offense level pursuant to Guidelines § 2D1.1, the PSR converted the cash found in Mr. VanDam's possession on October 17, 2001 into a quantity of methamphetamine and then into a marijuana equivalent.

At sentencing, the district court chose not to convert the cash attributed to Mr. VanDam into a drug equivalent for purposes of calculating his base offense level. Without the conversion, the district court found Mr. VanDam's total offense level to be 31, rather than 33. This yielded a Guidelines range of 151 to 188 months. The district court then chose to sentence Mr. VanDam in the middle of that range, to a 168-month period of incarceration.

C. First Appeal

Mr. VanDam appealed the denial of his motion to suppress. On appeal, the government conceded that the district court should have suppressed a firearm found in Mr. VanDam's vehicle. This Court agreed that the firearm was illegally obtained.1 See United States v. VanDam, No. 03-4137, slip op. at 1 (10th Cir. Sept. 15, 2005). We therefore vacated Mr. VanDam's original sentence and remanded for additional proceedings. Id. at 2.

D. Second Sentencing

On remand, the parties chose to honor the original plea agreement, without the felon-in-possession charge.

Prior to resentencing, the government filed a sentencing memorandum. The government argued that the offense level— and, therefore, the Guidelines range— should be higher than that found applicable during the original sentencing. The government contended that possession of the firearm still triggered an enhancement under Guidelines § 2D1.1(b)(1), since the exclusionary rule is generally inapplicable to sentencing proceedings. The government also argued that the district court erred during the first sentencing proceeding in not converting the cash in Mr. VanDam's possession at the time of his October 17, 2001 arrest into a drug quantity. Asking the district court to consider the firearm and the cash, the government pushed for a Guidelines range of 188 to 235 months. The government advocated for the "low end of that guideline range." R., Supp. Vol. II, Doc. 84, at 4 (emphasis added).

The government's sentencing memorandum did recognize, however, that the district court previously rejected this offense-level calculation. Faced with this reality, but stressing that the applicable Guidelines range should be 188 to 235 months, the government conceded that the district court's original sentence of 168 months was still a "reasonable sentence." Id.

A sentencing hearing was conducted on April 25, 2006. At the outset, the district court summarized the government's position as to the appropriate sentence:

The government claims that . . . all of this effort by Mr. VanDam and all that reading and you successfully getting this remanded does not make any difference. They still want the 168 months. In fact, they think it really should be 188 months, but they are willing to live with 168.

Right?

R., Vol. II, Tr. at 5. The government responded, "That is exactly our position, yes." Id. (emphasis added).

Later, the government elaborated upon this position:

If the Court had counted that money, we would end up with a final offense level of 33 and a criminal history of four for a range of 188 to 235 months. Discounting the money, his final offense level is down to a level 31 with a range of 151 to 188. The 168 is within that guideline range. The government initially agreed to recommend the low end of the guideline range as a part of the sentencing considerations in this case. However, the government is of the opinion that the appropriate guideline range would be that 188 to 235, and the low end of that would be 188.

Id. at 7-8 (emphasis added). At the end of its colloquy, the government presented its "bottom line": it was "still recommending the 168 month sentence be imposed at this resentence." Id. at 9.

Following the government's ultimate recommendation of 168 months, Mr. VanDam personally addressed the district court. He described his personal progress since his first sentencing. In particular, Mr. VanDam noted that, due to the absence of any disciplinary problems, he was transferred from a medium-security facility to a low-security facility; that he was promoted in his prison job; and that he was taking yoga and Spanish classes. Mr. VanDam also took responsibility and expressed contrition for his past offenses.

After these statements, the district court announced Mr. VanDam's new sentence. The district court rejected the government's Guidelines calculation, concluding that the original offense level of 31 was still "appropriate." Id. at 14. This yielded a range of 151 to 188 months. Unlike the first sentencing, however, the district court sentenced Mr. VanDam at the low end of this range, to 151 months. It also credited Mr. VanDam for the 15 months that he had spent in pretrial detention on federal and state charges, based upon its belief that the U.S. Bureau of Prisons would refuse to do so.

The district court rested its more lenient sentence—its movement from the middle of the Guidelines range to the low end of the Guidelines range—upon Mr. VanDam's strides towards rehabilitation. It explained that "Mr. VanDam is doing remarkably well in prison and following the rules and actually finding what he claims to be some new balance in life and hopefully a disassociation from the use of methamphetamine and the practices that got him in trouble in the first place." Id. at 14. The district court did not mention the government's actual recommendation of 168 months in this analysis. Nor did the district court refer to the government's obligation under the plea agreement to recommend the low end of the applicable Guidelines range.

After announcing Mr. VanDam's prison sentence, the district court considered his request to change one of the conditions of his supervised release, which would require him to maintain full-time employment. The district court conversed with Mr. VanDam about this request, and ultimately granted it. During this conversation, the government agreed that it had no objection and otherwise remained silent.

E. Instant Appeal

On May 1, 2006, Mr. VanDam filed a timely notice of appeal. Mr. VanDam argues that: (1) the government breached the plea agreement by not recommending a sentence at the low end of the Guidelines range and that, as a remedy, he is entitled to specific performance of the plea agreement before the same sentencing judge; and (2) the district court erred by not applying the exclusionary rule at sentencing.

II. DISCUSSION

The viable part of Mr. VanDam's appeal relates to the alleged breach of the plea agreement.2 Resolving this appeal requires a three-step analysis: (1) we must determine whether the government breached the plea agreement; (2) if so, we must determine whether the breach can be deemed harmless; and (3) if the breach cannot be deemed harmless, we must determine what remedy Mr. VanDam should receive.

We first hold that the government breached the plea agreement by not recommending a sentence at the low end of the...

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