U.S. v. Dewitt, 03-2779.
| Decision Date | 28 April 2004 |
| Docket Number | No. 03-2779.,03-2779. |
| Parties | UNITED STATES of America, Appellee, v. Cynthia J. DEWITT, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Larry Curtis Pace, argued, Kansas City, MO, for appellant.
Lajuana M. Counts, argued, Asst. U.S. Attorney, Kansas City, MO, for appellee.
Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
Cynthia J. DeWitt appeals the sentence imposed following her guilty plea to possessing a listed chemical, knowing or having reasonable cause to believe that it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). DeWitt argues that she is entitled to resentencing, because the government breached a provision of the plea agreement between the parties. We reverse and remand for resentencing.
DeWitt was charged by a grand jury in the first count of a two-count indictment. Count I charged that on February 4, 2002, DeWitt possessed pseudoephedrine, knowing or having reasonable cause to believe that it would be used to manufacture methamphetamine. Count II charged co-defendant Robert D. Hall with committing the same offense on or about September 17, 2001.
The government and DeWitt entered into a plea agreement. Paragraph 11 of the agreement provides:
11. With respect to the application of the sentencing guidelines to this case, the parties agree as follows:
a. The applicable guideline section for this offense is 2D1.11. The amount of pseudoephedrine to be used to calculate the sentencing guidelines is 1.12 grams. The following Drug Computation chart explains the drug conversion amounts:
DRUG COMPUTATION CHART
DATE OF SALE/POSSESSION DRUG QUANTITY
February 4, 2002 Pseudoephedrine 1.12 grams
TOTAL: 1.12 grams
Paragraph 11(b) of the plea agreement states that "[t]he base offense level is 16." Paragraph 12 states in part that "[t]he parties may advocate any position at the sentencing hearing regarding any sentencing issues not addressed in this agreement."
The plea agreement was accepted by the district court at a change of plea hearing on November 13, 2002. At the hearing, the government advised the court that the plea agreement DeWitt and her counsel told the court that they agreed with the prosecution's summary of the agreement.
The United States Probation Office prepared a presentence report and submitted it to the district court. For purposes of determining a base offense level pursuant to USSG § 2D1.11, the presentence report attributed to DeWitt the 1.12 grams of pseudoephedrine from the February 2002 offense, as well as an additional 51.9 grams of pseudoephedrine related to the September 2001 offense charged against co-defendant Hall in Count II. The probation office found that DeWitt's "relevant conduct" made her accountable for 53.02 grams of pseudoephedrine, see USSG § 1B1.3(a)(2), and recommended a base offense level of 28. DeWitt objected to the drug quantity and base offense level set forth in the presentence report.
At the sentencing hearing, the government sought to introduce testimony and documentary evidence relating to the September 2001 incident to establish the drug quantity set forth in the presentence report. DeWitt objected, claiming that the government had agreed to a base offense level of 16 and a drug quantity of 1.12 grams. The government argued that the plea agreement permitted the prosecution to present evidence of any conduct charged in any count of the indictment as "relevant conduct" under the guidelines. The district court allowed the government to present evidence relating to the September 2001 incident, subject to DeWitt's continuing objection.
After presenting the evidence, the government's attorney stated, The district court observed that the plea agreement provided that the court was not bound by the agreements of the parties, and that the court was free to consider relevant conduct. The court ruled that it would "allow the testimony and consider [the evidence] as relevant conduct []regardless of what the plea agreement says, because I think it is appropriate."
The district court found DeWitt accountable for the quantity recommended in the presentence report, and adopted the report's recommended base offense level of 28. The court reduced the offense level by a total of seven levels for DeWitt's mitigating role in the offense and acceptance of responsibility, and arrived at a total offense level of 21. With a criminal history category II, DeWitt's sentencing range was 41-51 months imprisonment. The court sentenced DeWitt to 41 months imprisonment, followed by a three-year term of supervised release.
Issues concerning the interpretation and enforcement of a plea agreement are reviewed de novo. United States v. Austin, 255 F.3d 593, 596 (8th Cir.2001). Plea agreements are contractual in nature, and should be interpreted according to general contract principles. Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir.1994). "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
As we construe DeWitt's plea agreement, the parties stipulated that the drug quantity applicable to her case was 1.12 grams of pseudoephedrine, and that the applicable base offense level was 16. On its own initiative, the government then sought to present evidence that the drug quantity and corresponding base offense level should be higher. We conclude that the government's conduct constituted a breach of the plea agreement.
The government argues that there was no breach because certain provisions in the plea agreement entitled the government to offer evidence of "relevant conduct," which would include uncharged conduct of DeWitt. More specifically, the government contends that the drug quantity and base offense level stipulations bound the government only with respect to Count I of the indictment. On this view, the government was not precluded from presenting evidence at sentencing to show that the drug quantities relating to Count II — the September 2001 incident involving DeWitt's co-defendant — should be attributed to DeWitt.
We reject this interpretation of the agreement. Paragraph 11 of the plea agreement defines "the application of the sentencing guidelines to this case," not merely to Count I. The drug computation chart in that paragraph refers not merely to a "drug quantity," but to the "total" drug quantity. The chart also identifies the "applicable guideline section for this offense," and provides that "the amount of pseudoephedrine to be used to calculate the sentencing guidelines is 1.12 grams." Nothing in paragraph 11 suggests that the computation established only a partial drug quantity. The plain language of these provisions demonstrates that the parties agreed to a total drug quantity attributable to DeWitt for this case.
It is true that paragraph 3 of the plea agreement says that "uncharged related criminal activity may be considered as `relevant conduct' pursuant to USSG § 1B1.3(a)(2) in calculating the offense level for the charge to which defendant will plead guilty." We do not agree, however, that this general provision permits the government to advocate a drug quantity higher than the total quantity to which it had specifically agreed in another section of the plea agreement. Under ordinary rules of contract interpretation, we give effect to the specific drug quantity and base offense level...
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