U.S. v. Boatner
| Decision Date | 10 July 1992 |
| Docket Number | No. 91-8058,91-8058 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Barry Dean BOATNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James D. Crock, Daytona Beach, Fla., for defendant-appellant.
Karl I. Knoche, U.S. Attorney's Office, Savannah, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before KRAVITCH and EDMONDSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.
Barry Dean Boatner challenges his prison sentence imposed for distribution of cocaine and an order of forfeiture of $50,000.00 as proceeds of drug activity in this appeal from the United States District Court for the Southern District of Georgia. The issues presented are (1) whether the government breached the plea agreement with Boatner by providing information to the court in the presentence investigation report which contradicted a factual stipulation with the defendant; (2) whether the district court violated Fed.R.Crim.P. 32(c)(3)(D) during the sentencing hearing; and (3) whether Fed.R.Crim.P. 11(f) is applicable to a forfeiture under 21 U.S.C. §§ 853(a)(1) and (2).
Finding that the government broke its plea agreement with the defendant and that the district court failed to comply with the requirements of Rule 32(c)(3)(D), we vacate in part and remand for resentencing. We also conclude that a forfeiture pursuant to §§ 853(a)(1) and (2) does not constitute a plea of guilty, and so hold that Rule 11(f) does not require the district court to determine whether there is a factual basis for the forfeiture.
In early April of 1990, Boatner was approached by agents of the Volusia County Sheriff's Department, Daytona Beach, Florida, and the Federal Bureau of Investigation ("FBI") during the course of an investigation by the United States District Attorney's Office for the Southern District of Georgia into the operation of a drug distribution network in Georgia, Florida, and other states. As a result of conversations with these officers, Boatner entered into a letter agreement on April 6, 1990 with the United States Attorney for the Boatner pleaded guilty according to the terms of the agreement during an August 16, 1990 Rule 11 hearing. On September 18, 1990, a presentence investigation report was furnished to the court by a probation officer. Rather than confining the quantity of cocaine involved in Boatner's offense to two ounces, this report asserted that Boatner had participated in drug activities involving approximately three kilograms of cocaine. The district court conducted a sentencing hearing on December 19, 1990. Boatner objected to any reference to more than two ounces of cocaine in the presentence investigation report, and alleged that the three kilograms cited by the government was inaccurate. 4 He contended that he had been involved with no more than two kilograms. In response, the government stated:
Southern District of Georgia. 1 The government agreed to stipulate that this was a pre-Sentencing Guidelines case, that two ounces of cocaine would be the only quantity considered for sentencing purposes, and that any information provided by Boatner during his cooperation with the investigation, or derived therefrom, would not be used against him in a criminal prosecution. In exchange, Boatner agreed to plead guilty pursuant to § 21 U.S.C. 841(a)(1) to distributing less than 500 grams of cocaine, pledged his full cooperation to the government's investigation, and acceded to a forfeiture under 21 U.S.C. §§ 853(a)(1) and (2) 2 of $50,000.00. These terms were memorialized in a Fed.R.Crim.P. 11 plea agreement. 3
[A]t the time the agreement was entered into with Mr. Boatner the two ounces, which represented a substantive count, was the only substantive count the government felt it could prove against Mr. Boatner at that time. That was the reason for the stipulation.
Then subsequently, other cooperating witnesses provided information about Mr. Boatner, and those were the independent sources for the additional two and three-quarters to three kilos which are in the report.
The government believes that information was provided independently by these outside sources. And the government believes that the probation officer, that he has done his duty in putting those into the report.
The government will stick to its stipulation because, again, that was the reason it was entered. At the time that was what we could prove against Mr. Boatner, and he was going to be--and proved to be a valuable, affirmative evidence gatherer for the government.
The district court then called as a witness the probation officer who compiled the report. The officer testified that his interviews with Volusia County Sheriff's Department Investigator Robert Shaffer and FBI Special Agent Charles D. Gabriel had The court did not act upon Boatner's motion to strike, nor did it make a determination of the accuracy of the three kilogram estimate made by the officers. Instead, it accepted the plea agreement on December 19, 1990, and entered a judgment against Boatner on December 20, 1990 (1) convicting him of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1); (2) sentencing him to eight years in prison to be followed by a special parole term of three years; and (3) ordering him to forfeit $50,000.00, as provided in the plea agreement. Boatner appeals from that judgment.
revealed that Boatner's involvement was "much more significant than just two ounces." He related to the court that Agent Shaffer told him that Boatner had acted as a "mule" transporting one kilogram of cocaine from Daytona Beach to Miami in exchange for four ounces of cocaine
A defendant is entitled to specific performance of an agreement which he enters with the government and which induces his plea of guilty. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Whether the government violated the agreement is judged according to the defendant's reasonable understanding at the time he entered his plea. U.S. v. Nelson, 837 F.2d 1519 (11th Cir.1988) (citing In re Arnett, 804 F.2d 1200 (11th Cir.1986)). Boatner's guilty plea was clearly induced by the bargain he reached with the United States Attorney for the Southern District of Georgia. He is therefore entitled to specific performance of the terms of that agreement as he reasonably understood them at the time of his plea. Boatner contends that he understood that the government, by signing the plea agreement, agreed that two ounces of cocaine was the extent of his culpability for cocaine distribution. He argues that the government breached the explicit terms of the plea agreement by introducing evidence through the presentence investigation report which could have lead the court to believe that he had been involved with almost three kilograms of cocaine.
The solemnization of a plea agreement does not preclude the government from disclosing pertinent information to the sentencing court. See United States v. Jimenez, 928 F.2d 356 (10th Cir.), cert. denied, Jimenez v. United States, --- U.S. ----, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991). That rule notwithstanding, the government can enter into a binding agreement with a defendant to restrict the facts upon which the substantive offense is based. See Nelson, 837 F.2d at 1522-1525. Thus, the plea agreement's stipulation that only two ounces of cocaine would serve as the factual predicate for determining Boater's sentence obligates the government to strict compliance. Because the presentence investigation report "establish[es] the factual and legal backdrop for the sentencing hearing," United States v. Jones, 899 F.2d 1097, 1102 (11th Cir.1990) (quoting United States v. Wise, 881 F.2d 970, 972 (11th Cir.1989)), we conclude that the stipulation limiting the amount of cocaine involved in Boatner's offense was violated and the plea agreement breached when the government introduced evidence through the presentence investigation report showing that Boatner's drug dealings had involved over three kilograms of cocaine.
The government laments that it did nothing in disregard of the stipulation because "the parties did not intend this provision to bind the court." This argument refers to paragraph 4(h) of the plea agreement, in which Boatner states his understanding that "the Government can only make a recommendation which is not binding on the Court, and that the defendant understands that after entry of his guilty plea, he has no absolute right to withdraw the plea." This provision attests to Boatner's understanding of Fed.R.Crim.P. 11(e)(1)(B), which permits the government to recommend a particular sentence "with the understanding that such recommendation or request shall not be binding upon the court...." Rule 11(e)(1)(B) does not change our analysis. The stipulation that, for sentencing purposes, Boatner's involvement The government also argues that it did not deliberately breach the agreement because it did not present evidence at the sentencing hearing to prove that Boatner had been involved with more than two ounces of cocaine. It attempts to hide behind its statement to the district court that "the government will stick to its stipulation...." However, the government supported the information contained in the presentence investigation report by declaring to the court that its later investigations had revealed that the amount of cocaine involved was actually between two and three-quarters and three kilograms. This information was specifically precluded by the plea agreement. Consequently, the government violated its agreement at the sentencing hearing when it attempted to bolster the presentence investigation report. See United States v. Jefferies, 908 F.2d 1520 (11th Cir.1990).
with cocaine is limited to two ounces of cocaine is not an agreement to recommend a
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