U.S. v. Grimm

• Decision Date: 17 March 1999
• Docket Number: Nos. 98-2140,98-2429,s. 98-2140
• Citation: 170 F.3d 760
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles T. GRIMM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 760

170 F.3d 760

UNITED STATES of America, Plaintiff-Appellee, v. Charles T. GRIMM, Defendant-Appellant.

Nos. 98-2140, 98-2429.

United States Court of Appeals Seventh Circuit.

Argued Dec. 7, 1998.

Decided March 17, 1999.

Peggy A. Lautenschlager, Larry Wsalek (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Charles W. Giesen (argued), Giesen Law Offices, Madison, WI, for Defendant-Appellant.

Before COFFEY, FLAUM, and EVANS, Circuit Judges.

FLAUM, Circuit Judge.

Defendant Charles Grimm appeals the sentence he received after pleading guilty, pursuant to a written plea agreement with the government, to conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Grimm raises several challenges to the proceedings below. First, he argues that the government breached the plea agreement when it withdrew its recommendation for acceptance of responsibility and brought the issue of Grimm's possession of a firearm to the sentencing court's attention. Second, the defendant argues that the district court erred in denying him a reduction for acceptance of responsibility. Third, Grimm claims that the district court erroneously enhanced his sentence based on possession of a gun in connection with the offense. Finally, Grimm argues that the district court erred in denying him a reduction based on the safety valve provision of the sentencing guidelines. For the reasons stated herein, we remand for resentencing.

I. BACKGROUND

Charles Grimm worked as a courier for drug runner Cesar Duran. Grimm's role in the drug operation was to drive a car carrying marijuana from Arizona to Madison, Wisconsin. The usual scenario involved Duran transporting a vehicle already loaded with marijuana to Grimm, though on one occasion Duran loaded a car at his ex-wife's house while Grimm waited for him there. Grimm would drive the drug-filled car to Wisconsin, then fly back to Arizona. For all but one delivery, Grimm used a car provided by Duran or rental cars. Grimm used his own car, a 1993 Chevy Lumina, to transport marijuana on only one occasion, in July 1997.

In 1996, government authorities discovered Duran's marijuana operation. Grimm was arrested for his involvement in the drug conspiracy on August 29, 1997 at a bar in Phoenix, Arizona. Upon his arrest, the police found a handgun locked in the trunk of Grimm's Chevy Lumina. ¹ Grimm did not have any drugs with him or in the car at the time of his arrest.

Grimm eventually discussed and entered into a plea agreement with the government to admit his role in the conspiracy. On February 2, 1998, two weeks before the plea agreement was signed, Grimm provided the government with an eight-page written proffer (the "agreement" or the "plea agreement") setting forth his involvement in the conspiracy. Among the provisions contained in the agreement, and relevant to this appeal, were the following: (1) the government would recommend a three-level sentence reduction for acceptance of responsibility based on the facts then currently known to it; and (2) the government would recommend a sentence reduction pursuant to the safety valve provision of the sentencing guidelines. In the agreement, Grimm admitted to conspiring with Duran from March 1996 to August 1997. Based on his discussions with the government and on the proposed plea agreement, Grimm believed he was looking at a sentence of 57 to 71 months.

The government contends that it did not rely on any information in the written agreement when it entered into the plea agreement with Grimm and that the proffer was merely an unsigned draft. However, an Assistant United States Attorney did sign the proffer's transmittal letter as "approved and agreed to." Additionally, the government conceded, both in its Sentencing Memorandum to the district court and in its brief to this court, that it was bound by the terms of the plea agreement. Thus, there is no real dispute as to whether there was a written, binding plea agreement in this case.

On February 17, 1998, Grimm pled guilty to conspiring to distribute marijuana, pursuant to the written plea agreement with the government. On April 7, 1998, a few days before the sentencing hearing, the government claimed that it had new evidence that Grimm had denied relevant conduct and therefore withdrew its recommendation for a reduction based on acceptance of responsibility. The government also claimed that Grimm no longer qualified for the safety valve reduction. Grimm objected to these sentencing recommendations on the grounds that they breached the plea agreement.

The district court sentenced Grimm to 170 months imprisonment and denied Grimm's objection that the government breached the plea agreement. The district court also denied Grimm a three-point sentence reduction for acceptance of responsibility, added two levels for possession of a gun in connection with the offense and refused to apply the safety valve provision.

II. ANALYSIS

Grimm raises four issues on appeal. First, he argues that the government breached the plea agreement when it withdrew its recommendation for acceptance of responsibility and raised the issue of his possession of a firearm, after implicitly promising not to do so by agreeing to recommend the safety valve reduction. Second, he claims that the district court erred in denying him a sentence reduction for acceptance of responsibility. Third, Grimm argues that the district court erred in applying a two-level enhancement for possession of a dangerous firearm. Finally, Grimm claims that the district court erred in finding him ineligible for the safety valve provision of the sentencing guidelines.

A. Breach of plea agreement.

The parties agree that because plea agreements are contracts, this court reviews any ambiguity in such agreements de novo, as a question of law. United States v. Williams, 102 F.3d 923, 927 (7th Cir.1996). We must objectively review the language of the plea agreement and hold the government to the literal terms of the agreement. Id. The government is strictly bound to fulfill any express or implied promise made in exchange for a guilty plea contained in the plea agreement. Id.

Grimm claims that when he entered into the plea agreement, the government agreed to certain sentencing recommendations, and that the government breached the agreement when it withdrew some of these recommendations prior to sentencing. Specifically, Grimm argues that the government breached the plea agreement in two ways: First, by taking away its recommendation for acceptance of responsibility and, second, by raising the issue of his possession of a gun in connection with the charged offense after implicitly agreeing not to. We address each of Grimm's contentions in turn.

1) Acceptance of responsibility.

Paragraph six of the plea agreement provided:

The United States agrees to recommend that the defendant receive a three-level reduction in the sentencing guidelines for acceptance of responsibility. This recommendation is based upon facts currently known to the United States and is contingent upon the defendant accepting responsibility according to the factors set forth in USSG § 3E1.1. The United States is free to withdraw this recommendation if the defendant has previously engaged in any conduct which is unknown to the United States and is inconsistent with acceptance of responsibility, or if he engages in any conduct between the date of this plea agreement and the sentencing hearing which is inconsistent with acceptance of responsibility.

USSG § 3E1.1 provides a reduction in the defendant's offense level if he "clearly demonstrates acceptance of responsibility for his offense." The government withdrew its recommendation for acceptance of responsibility pursuant to USSG § 3E1.1, because it claimed that Grimm denied relevant conduct. Specifically, the government asserts that Grimm lied about the starting date of his association with Duran and lied about his association with Duran's ex-wife, Teresa Olayo.

Grimm told the government that he began his association with Duran in 1996. The government claims that it discovered, post plea agreement, that Grimm actually began working for Duran in 1995. This is based on the fact that Grimm told a government informant, Richard Canfield, in a taped conversation, that he drove to Tucson, met with Duran's sister and waited for a load of marijuana that never came, and that he "wasn't workin' for UAC then." Following the plea hearing, Grimm told the probation office that he was employed with Union Acceptance Corporation ("UAC") from May 1995 to August 1997. Thus, the government contends that it had "new evidence" that Grimm was associated with Duran since 1995, rather than 1996.

However, as Grimm argues, the government knew long before the date of the plea agreement that Grimm began working for UAC in May 1995. For instance, Grimm references a motion received by the United States Attorney's office in October 1997, and placed into the record in this case, that detailed the fact that from "May 1995 to present--Mr. Grimm has been employed as a field investigator for Union Acceptance Corporation...." Moreover, the record shows that the government had the taped conversation between Grimm and Canfield long before the plea agreement was negotiated. Thus, the government had no new evidence that Grimm denied relevant conduct.

Since the acceptance of responsibility provision in the plea agreement was based on facts "currently known to the government" at the time it entered into the agreement, withdrawal of promises made in the agreement had to be based, as the government concedes in its brief, on "newly discovered evidence." As the government does not possess any newly discovered evidence that Grimm was associated with Duran as early as 1995, the government is estopped from withdrawing the recommendation for acceptance of responsibility based on Grimm's alleged misrepresentations concerning the...