U.S. v. Bunner

• Decision Date: 20 January 1998
• Docket Number: No. 97-5066,97-5066
• Citation: 134 F.3d 1000
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Dennis BUNNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1000

134 F.3d 1000

UNITED STATES of America, Plaintiff-Appellee, v. Robert Dennis BUNNER, Defendant-Appellant.

No. 97-5066.

United States Court of Appeals, Tenth Circuit.

Jan. 20, 1998.

Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United States Attorney with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Stephen J. Greubel, Assistant Federal Public Defender (Stephen J. Knorr, Federal Public Defender with him on the brief), Tulsa, OK, for Defendant-Appellant.

Before BALDOCK, LOGAN, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Robert Dennis Bunner appeals the district court's order reinstating criminal counts which the government previously dismissed pursuant to a plea agreement, and the district court's subsequent sentence on his conditional guilty plea to violating 18 U.S.C. § 922(g). Defendant asserts that the district court erred: (1) by granting the government's motion to reinstate the dismissed counts; and (2) by enhancing his sentence four levels for possession of a firearm in connection with another felony offense pursuant to U.S.S.G. § 2K2.1(b)(5). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

I.

A grand jury indicted Defendant for violating 21 U.S.C. § 841(a)(1), 18 U.S.C. § 924(c), 18 U.S.C. § 922(g) and 21 U.S.C. § 856. Pursuant to a plea agreement, Defendant pled guilty to using a firearm during the commission of a drug trafficking offense in violation of 18 U.S.C. § 924(c). In return, the government dismissed the remaining counts of the indictment. Finding sufficient evidence to support the plea, the district court sentenced defendant to a mandatory 60-month sentence. Defendant did not appeal. After Defendant served approximately three years, the Supreme Court decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Under Bailey, Defendant's actions no longer constituted a § 924(c) violation. Accordingly, Defendant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which the district court granted.

Contending that Defendant breached his plea agreement by attacking his sentence, the government moved to reinstate the dismissed counts of the original indictment. The district court concluded that Defendant successfully repudiated the plea agreement and granted the motion to reinstate the counts. Defendant then entered another conditional plea of guilty to violating of 18 U.S.C. § 922(g), reserving his right to appeal the district court's decision to reinstate the dismissed counts. Applying a four-level enhancement for possession or use of a firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(5), the district court sentenced Defendant to 50 months imprisonment. The district court credited Defendant for the time he served pursuant to his invalid § 924(c) sentence.

II.

Defendant's first issue on appeal requires us to determine whether the government may reinstate counts it dismissed pursuant to a plea agreement, when the district court, pursuant to a motion filed by a defendant, vacates that defendant's plea-bargain sentence pursuant to 28 U.S.C. § 2255 on the ground that the facts supporting the plea no longer amount to a crime. The plea agreement defines the government's obligations regarding the dismissed counts. Therefore, our inquiry must focus on whether, after Bailey and Defendant's successful § 2255 motion, the plea agreement between Defendant and the government continued to prohibit the government from reinstating the dismissed counts.

We review whether Defendant violated the terms of the plea agreement de novo, See United States v. Belt, 89 F.3d 710, 713 (10th Cir.1996), and construe the plea agreement according to principles of contract law. United States v. Veri, 108 F.3d 1311, 1313 (10th Cir.1997). We first examine the nature of the plea agreement itself. United States v. Rockwell Intern. Corp., 124 F.3d 1194, 1199 (10th Cir.1997). Then, we analyze the plea agreement based upon Defendant's reasonable understanding at the time he entered the plea agreement. Id. Although we give credence to the plain language of the plea agreement, we will not construe the language so literally that the purpose of the plea agreement is frustrated. Id. Accordingly, we consider terms implied by the plea agreement as well as those expressly provided. See Id.

Defendant complains that the district court erred in allowing the government to reinstate the previously dismissed charges on the basis that he repudiated his plea agreement by successfully attacking his conviction via 28 U.S.C. § 2255. Specifically, Defendant urges this court to adopt the reasoning set forth in United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir.1997), and several district court decisions ¹ which hold that a defendant does not breach his plea agreement by attacking his conviction on the ground that the conduct to which he pled guilty is no longer a crime. For the following reasons, we decline to follow Sandoval-Lopez and conclude that the district court properly allowed the government to reinstate the counts previously dismissed based on its agreement with Defendant. ²

A.

In Sandoval-Lopez, the Ninth Circuit faced an issue directly analogous to the one presented in this case. The government charged the defendants with, inter alia, violating 18 U.S.C. § 924(c)(1). Instead of leaving their fate to a jury, the defendants entered plea agreements with the government whereby the government dropped several of the charges in return for the defendants' pleas of guilty to § 924(c)(1). The parties also agreed that the government would recommend that defendants be sentenced to what they believed was the mandatory minimum sentence of five years per count. Subsequently, the United States Supreme Court decided Bailey. After Bailey, the facts underlying the defendants' pleas no longer supported their convictions. The defendants filed a motion to vacate their sentences pursuant to 28 U.S.C. § 2255, which the district court granted. The government, alleging that the defendants breached their plea agreements, moved to reinstate the counts dismissed pursuant to the agreements. The district court agreed, and issued an order reinstating the dismissed charges.

On appeal, the Ninth Circuit determined that in order for a defendant to breach his plea agreement by filing a § 2255 petition, the agreement must expressly prohibit the defendant from collaterally attacking his sentence. The court construed the agreement against the government and concluded that the defendants did not waive their right to attack their sentences pursuant to § 2255. The court held that the defendants did not violate their plea agreements and reversed the district court's decision allowing the government to reinstate the previously dismissed counts against the defendants.

The logic Defendant advances in support of his argument is basically the same as that set forth in Sandoval-Lopez. Defendant argues that because he did not breach the plea agreement, the government must be held to its promise not to prosecute him on the counts it dismissed pursuant to the agreement. Defendant contends the district court erred by not specifically enforcing the agreement and granting the government's request to reinstate the previously dismissed counts against him.

A fair and objective reading of the plea agreement suggests that Defendant agreed to plead guilty to § 924(c) and not to appeal certain motions decided by the district court. In return, the government agreed to dismiss the remaining counts against Defendant. Nothing in the agreement suggests that Defendant relinquished the right to attack his sentence under § 2255. Thus, we agree with Defendant that the district court incorrectly determined that he repudiated the agreement. However, we cannot adopt the approach followed in Sandoval-Lopez, which requires specific enforcement of the agreement without determining the ultimate effect of Defendant's actions and the Bailey decision on the plea agreement.

Simply put, the Sandoval-Lopez court stopped too soon. After determining that the defendants did not breach or repudiate their plea agreements, the court specifically enforced the agreements and reversed the district court's order reinstating the dismissed counts. The court made no explicit determination regarding the effect of the defendants' successful § 2255 motion on the government's plea agreement obligations. Without this determination, specific enforcement was premature. Certainly, a finding that the § 2255 motion did not effect the government's obligations under the agreement would support the court's order of specific performance. However, if the defendants' actions created an intervening impracticality or frustrated the agreement's purpose, then the government's obligations under the agreement were likely altered. Accordingly, guided by principles of contract law, we must decide which, if any, of the government's duties under the plea agreement remained intact after Bailey and Defendant's subsequent § 2255 motion.

B.

When two parties enter into a contract, each has an object or purpose for which he joins the transaction. See Arthur Linton Corbin, Corbin on Contracts § 1353 (1962). These purposes form the basis of the agreement, absent which neither party would consent to be bound. Occasionally, however, through no fault of either party, a reasonably unforeseeable event intervenes, destroying the basis of the contract and creating a situation where performance by one party will no longer give the receiving party what induced him to enter into the contract in the first place. See United States v. General Douglas MacArthur Senior Village, Inc., 508 F.2d 377, 381 (2d Cir.1974). Although the supervening event does not render performance impossible, one party's performance becomes virtually worthless to the other. See Restatement 2d Contracts § 265 (1981) When...