U.S. v. Guzman

Citation318 F.3d 1191
Decision Date07 February 2003
Docket NumberNo. 02-3070.,02-3070.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Maximo GUZMAN, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, CO, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States Attorney; Nancy Landis Caplinger, Assistant United States Attorney, on the brief), Topeka, KS, for Plaintiff-Appellee.

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and OBERDORFER,* District Judge.

OBERDORFER, District Judge.

Maximo Guzman, Jr., the defendant, pursuant to a Plea Agreement, pled guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 846, and was sentenced to 80 months confinement. On appeal from that sentence, he first contends that the government breached the Plea Agreement by making recommendations to the court that were contrary to its promises under the Agreement. Although the government insists that Guzman had breached the Agreement before it made the disputed recommendations, Guzman maintains that the District Court had not made a finding to that effect. Second, Guzman argues that the District Court erroneously imposed an "obstruction of justice" enhancement pursuant to U.S.S.G. § 3C1.1, solely in reliance on a presentence report. We find that the District Court erred in handling both aspects of the sentencing. We therefore vacate the sentence, and remand the case for further proceedings consistent with this opinion.

I.

After an extended investigation, the government indicted Guzman for: (1) attempted obstruction of justice, in violation of 18 U.S.C. § 1503, and (2) conspiracy to possess with intent to distribute 100 kilograms or more of marijuana. The obstruction of justice count alleged that on March 22, 2001, Guzman, while pretending to hold a firearm at his side, walked towards Timothy Howze, a government informant, and told Howze that he was "dead, snitch."

A. The Plea Agreement and Guzman's Work with the Government

On November 13, 2001, Guzman and the government entered into the Plea Agreement. Guzman agreed to plead guilty to the marijuana conspiracy count, to provide a "full and truthful accounting and statement" of his knowledge relating to this case, to submit to and pass a polygraph examination if asked to do so, and to testify, if required, in the trials of other individuals involved. PA ¶¶ 1, 4-6. Guzman also waived his right to appeal any sentence within the Guidelines range, "except to the extent ... that the court may depart upwards from the applicable sentencing guideline range...." PA ¶ 3(A).

For its part, the government promised to bring no further criminal charges relating to the activities underlying the indictment. PA ¶ 7(A). In addition, the government promised to make several recommendations to the sentencing court, all of which were "contingent upon the defendant's continuing manifestation of acceptance of responsibility, and no attempts to obstruct justice, as defined by U.S.S.G. § 3C1.1." PA ¶ 7(B)-(E). These recommendations were: that Guzman receive a three-level adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1; that he not receive a two-level enhancement for obstruction of justice; and that he receive a sentence at the lower end of the appropriate Guidelines range. PA ¶ 7(B)-(D). In addition, the government agreed to file a "substantial assistance" motion pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), contingent upon Guzman's "continuing cooperation as contemplated" by the Agreement. PA ¶ 7(E).

The Plea Agreement further provided that the government would be released from its obligations if Guzman were to "deny.., or give conflicting statements as to his own involvement" in the offense, or "engage in additional criminal conduct." PA ¶ 7(B)-(E). If, in the opinion of the government, Guzman did "not comply fully, truthfully and honestly with the terms" of the Agreement, "the plea shall be withdrawn, the [government] shall be immediately released from its obligations ... and shall reinstate prosecution as if no agreement had been reached." PA ¶ 14.

The government debriefed Guzman on the same day that he signed the Plea Agreement. According to the government, during the debriefing, Guzman minimized the amount of marijuana with which he himself was involved. Nevertheless, between the date of his plea and January 7, 2002, Guzman was in contact with government agents on the case, providing them with various pieces of information, all of which they accepted; none led to any arrests.

On January 6, 2002, Guzman told William Cox, a local police officer who was a neighbor of Guzman's sister, that Gary Hanus, a government investigator, had asked Guzman to plant drugs in the residence of a suspect. The next day, Officer Cox told Hanus about Guzman's allegations. All cooperation between Guzman and law enforcement then ceased.

B. The Sentencing Process

The Presentence Investigation Report ("PSIR") prepared by the probation officer recommended a Guidelines range of 70-87 months for Guzman, based on a criminal history category of III and a total offense level of 25. Although Guzman had not pled guilty to the obstruction of justice count based on the alleged intimidation incident involving Howze, the probation officer took it into account to add two points for "obstruction of justice," citing U.S.S.G. § 3C1.1.1

Guzman filed with the probation officer an objection to the obstruction of justice adjustment. He denied that the incident ever occurred, and underscored that at his detention hearing, his then — fiancee (now wife), Jamie Ovalle, corroborated this denial. PSIR at ¶ 125. In its response, the government agreed with the PSIR's description of the Howze incident, but added that "the government is bound by ... paragraph 7C" of the Plea Agreement, which required it to oppose an obstruction of justice adjustment. Id. at ¶ 126. The probation officer nevertheless reiterated that the obstruction adjustment applied. Id. at ¶ 127-28.

1. Pre-Sentence Pleadings

On February 4, 2002, four days before the sentencing hearing, Guzman filed a motion to compel the government to file the § 5K1.1 substantial assistance motion contemplated in ¶ 7(E) of the Plea Agreement. Guzman argued that he had cooperated with law enforcement authorities but that he was being denied the downward departure in retaliation for his refusal to plant drugs. Motion to Compel, at 2-3. Guzman contended, therefore, that the government's failure to file the downward departure motion was "unconstitutional," because it was "not rationally related to any government objective." Id. at 3.

The government response, filed that same day, denied the allegations regarding planting drugs, noting that it was not filing the § 5K1.1 motion because Guzman was dishonest during his debriefing, and had been uncooperative. Government's Response to Defendant's Motion to Compel, at ¶ 3. The government response stated that Guzman made his drug planting allegations only after he was told that he had violated the Plea Agreement by refusing to cooperate. Id.

On February 4, 2002, Guzman also filed a Sentencing Memorandum in which he reiterated his objection to an obstruction of justice enhancement based on the alleged Howze intimidation incident. The Memorandum emphasized the government's promise in the Plea Agreement to oppose an obstruction of justice enhancement, and repeated Guzman's denial that the incident ever occurred. Sentencing Memorandum, at 1-2. Guzman also noted that given his objection, "the burden ... shifts to the government to show by a preponderance of the evidence that such an enhancement should be assessed." Id. at 2. Since the Plea Agreement required the government to argue against such an enhancement, Guzman reasoned that his objection should be sustained. Id.

The government's February 6, 2002, response to the Sentencing Memorandum asserted that Guzman had violated the Plea Agreement by "not act[ing] in good faith with law enforcement since his plea of guilty" and by "ma[king] false criminal allegations against law enforcement personnel." Government's Response, at ¶ 5. The government argued that, given Guzman's breach of the Plea Agreement, he should not receive a reduction for acceptance of responsibility, should receive an enhancement for obstruction of justice, and should receive a sentence at the upper end of the guideline range. Id. The government specifically recommended a sentence of 121 months, the highest possible sentence consistent with the government's recommendations. Id. at 4. It explained that in making these recommendations — which were contrary to its promises in the Plea Agreement — it was relying on Guzman's drug planting allegations, and his general unwillingness to cooperate. Id. at 3 n. 1.

2. Sentencing Hearing

At the sentencing hearing on February 8, 2002, defense counsel requested a continuance, explaining he had received the government's response to the Sentencing Memorandum that same morning. The court denied the continuance, and proceeded to hear evidence on the defendant's objection to the PSIR, as well as on the motion to compel. The government called three witnesses who denied the drug planting allegations. The government presented no evidence regarding the alleged intimidation of Howze. Guzman testified that Hanus suggested that he plant drugs on the suspect; that the incident with Howze never occurred; and that he was truthful and complete during the debriefing that followed his guilty plea.

After the conclusion of the testimony, the District Court granted Guzman a three-point acceptance of responsibility adjustment, and sentenced him in the middle of the Guidelines range to 80 months. In a subsequent Memorandum and Order, the...

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