U.S. v. Fagan

• Decision Date: 25 June 1993
• Docket Number: 89-50549 and 90-50172,Nos. 88-5439,s. 88-5439
• Citation: 996 F.2d 1009
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Wayne FAGAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony Wayne FAGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1009

996 F.2d 1009

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Wayne FAGAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Wayne FAGAN, Defendant-Appellant.

Nos. 88-5439, 89-50549 and 90-50172.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 10, 1992.

Decided June 25, 1993.

Maria E. Stratton, Talcott, Lightfoot, Vandevelde, Woehrle & Sadowsky, Los Angeles, CA, for defendant-appellant.

Russell G. Petti, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: FERGUSON, CANBY, and THOMPSON, Circuit Judges.

CANBY, Circuit Judge:

In these consolidated appeals, Anthony Wayne Fagan challenges his jury conviction and sentence for possession of cocaine base with intent to distribute and distribution of cocaine base within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) & 845a (now codified at 21 U.S.C. § 860). He also challenges the sentence imposed after he pleaded guilty in a separate case to possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We vacate both sentences and remand.

I. FACTS & PROCEDURAL BACKGROUND

The procedural history of these cases is tortuous but important to our decision. On March 8, 1988, police officers observed Fagan and another man at a house in Los Angeles engaged in what appeared to be the sale of cocaine base. The officers followed and stopped one of Fagan's customers, and discovered that she possessed cocaine base. The police then arrested Fagan. On March 18, 1988, a federal grand jury returned an indictment against Fagan based on the March 8th incident. This indictment charged him with one count of possession of cocaine base with intent to distribute, one count of distribution of cocaine base within 1000 feet of a school, and two counts of being a felon in possession of a firearm ("Case I"). Case I was assigned to District Judge Pfaelzer.

On March 18, 1988, knowing that the federal indictment and an arrest warrant were imminent, police officers were conducting surveillance of Fagan's residence. The officers again observed that Fagan and another man appeared to be selling drugs. The officers therefore stopped two of Fagan's customers and subsequently arrested them for possession of cocaine base. Later that day, when they were notified that the federal arrest warrant stemming from the events of March 8th had been issued, the officers arrested Fagan.

On April 1, 1988, a federal grand jury returned another indictment against Fagan based on the events of March 18th. This second indictment charged him with one count of possession of cocaine base with intent to distribute and two counts of distribution of cocaine base within 1000 feet of a school ("Case II"). Case II was assigned to District Judge Tevrizian. Fagan moved to consolidate the two cases, but the government opposed the motion, and it was denied. ¹

On May 17, 1988, in Case I, Fagan entered a guilty plea to one count of possession of cocaine base with intent to distribute. Pursuant to the plea agreement, the government agreed to dismiss the other drug distribution count. ² Under the terms of the plea agreement, Fagan also was supposed to plead guilty in Case II to one count of distribution of cocaine base within 1000 feet of a school, and the government agreed to dismiss all the other counts in that case.

On May 19, 1988, the government moved to set aside Fagan's guilty plea in Case I. The government asserted that it had agreed to the plea because the prosecutor mistakenly believed that an information alleging Fagan's prior convictions had not been properly filed with the district court. Therefore, the prosecutor thought that those convictions could not be a factor at the time of the plea hearing. In fact, the information had been properly filed. The prior convictions alleged in the information, had they been given effect, would have substantially increased the possible sentence faced by Fagan. ³ Fagan opposed the government's motion to set aside the plea and filed a motion to enforce the plea agreement. On May 23, 1988, Fagan also filed a motion before Judge Tevrizian to enforce the terms of the plea agreement that required the government to present the agreement to the district court in Case II.

On June 6, 1988, in Case I, Judge Pfaelzer granted the government's motion to withdraw the plea and denied Fagan's motion to enforce the plea agreement. Later that day, Judge Tevrizian also denied Fagan's motion to enforce the plea agreement in Case II on the ground that "this Court never entered into any plea agreement with Mr. Fagan under [Fed.R.Crim.P.] 11. The Court, until it personally, in open court, and on the record, discusses a plea agreement, is not bound by any plea agreement worked out between the government and or defense counsel." June 6, 1988, Reporter's Transcript at 3-4.

On July 27, 1988, a jury trial began in Case II; Fagan was convicted of all three counts. On October 10, 1989, Judge Tevrizian sentenced him to 175 months in prison to be followed by five years of supervised release. Fagan appealed his conviction and sentence.

On January 8, 1990, in Case I, Judge Pfaelzer reconsidered her denial of Fagan's motion to enforce the plea agreement. Judge Pfaelzer granted Fagan's motion because of this court's decision in United States v. Partida-Parra, 859 F.2d 629 (9th Cir.1988). Therefore, Fagan again pleaded guilty to one count of possession of cocaine base with intent to distribute. The government agreed to withdraw the information alleging the prior convictions. On March 19, 1990, Judge Pfaelzer sentenced Fagan to 120 months in prison to be followed by five years of supervised release; this sentence was ordered to run consecutively to the sentence imposed by Judge Tevrizian in Case II. Fagan appealed this sentence as well.

II. ANALYSIS

In his appeal from the judgment in Case II, Fagan challenges (1) the denial of two pre-trial motions, (2) the admission of certain evidence at trial, and (3) the jury instructions. In his appeal from the judgment in Case I, Fagan contends that the district court erred by ordering that his sentence run consecutively to the sentence he received in Case II. In his appeals from both cases, Fagan challenges the two-point increase in his offense level under the Sentencing Guidelines for his role in the offenses.

A. Pre-trial Motions

1. Denial of Motion to Enforce the Plea Agreement

Fagan contends that the district court erred by failing to enforce the plea agreement that had been placed on the record, and initially had been accepted, by Judge Pfaelzer in Case I. Under the terms of that agreement, Fagan was supposed to enter guilty pleas in both cases. Therefore, Fagan argues, the government breached its promise by failing to offer the plea agreement to Judge Tevrizian in Case II. We agree with Fagan's contention that the government reneged on its promise, but this conclusion does not resolve the issue he presents. We must determine what remedy exists for the government's breach of the plea agreement in light of the unusual procedural posture of this case. ⁴

Whether the district court is required to enforce a plea agreement is a question of law, which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (questions of law reviewed de novo), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). A plea agreement that has not been entered and accepted by the trial court does not bind the parties. Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437 (1984); see also United States v. Gonzalez, 918 F.2d 1129, 1133 (3d Cir.1990) ("a plea agreement is neither binding nor enforceable until it is accepted in open court"), cert. denied, 498 U.S. 1107, 111 S.Ct. 1015, 112 L.Ed.2d 1097 and --- U.S. ----, 111 S.Ct. 1637, 113 L.Ed.2d 733 (1991). In contrast, once the district court accepts a guilty plea, absent fraud or breach of the plea agreement by the defendant, the court has no authority to vacate the guilty plea because of a government motion asserting "that a mistake of fact (on [the government's] part) prevented the formation of a binding agreement." Partida-Parra, 859 F.2d at 633. If the government has breached a plea agreement by successfully moving to vacate a guilty plea that the district court had accepted, and the defendant has been convicted after a jury trial, "[t]he appropriate remedy is to reinstate the guilty plea and remand for resentencing." Id. at 635 (citations omitted).

Here, the fact that a guilty plea had not been entered or accepted by Judge Tevrizian in Case II distinguishes this case from Partida-Parra; we cannot simply reinstate a guilty plea. See id. at 635 n. 7 (noting that the district court's acceptance of Partida-Parra's guilty plea distinguished his case from one in which "the plea agreement had not yet been presented to the district court for acceptance and, in that sense, was unconsummated") (citing Government of Virgin Islands v. Scotland, 614 F.2d 360, 365 (3d Cir.1980)); see also Mabry, 467 U.S. at 507-08, 104 S.Ct. at 2546-47; Gonzalez, 918 F.2d at 1133.

Nevertheless, as of May 17, 1988, Fagan had entered and the district court had accepted a guilty plea in Case I. During the plea hearing before Judge Pfaelzer, the prosecutor stated:

[T]his plea agreement encompasses two cases. This is the first case. The second case is set before Judge Tevrizian ... and the agreement is that Mr. Fagan is going to also plead guilty in that case to the 845(A) [sic] count which I believe is count two and it is commonly known as the schoolyard statute.

May 17, 1988, Reporter's Transcript at 33. The government's subsequent discovery that its decision to enter into this plea agreement was based on a mistake of fact did not nullify the agreement or excuse the government from...