U.S. v. Hawley

• Decision Date: 19 August 1996
• Docket Number: No. 95-3061,95-3061
• Citation: 93 F.3d 682
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor Lyn HAWLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 682

93 F.3d 682

UNITED STATES of America, Plaintiff-Appellee, v. Victor Lyn HAWLEY, Defendant-Appellant.

No. 95-3061.

United States Court of Appeals Tenth Circuit.

Aug. 19, 1996.

Submitted on the briefs: ^*

David J. Phillips, Federal Public Defender and Marilyn M. Trubey, Assistant Federal Public Defender, Topeka, Kansas, for Defendant-Appellant.

Randall K. Rathbun, United States Attorney and Gregory G. Hough, Assistant United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

Before BALDOCK, EBEL, and HENRY, Circuit Judges.

EBEL, Circuit Judge.

On August 4, 1994, a grand jury returned a two-count indictment against Defendant-Appellant Victor Lyn Hawley and James Lopez Guardado, charging that on or about the 25th day of July, 1994, through the 28th day of July, 1994, they conspired to possess with intent to distribute 100 grams or more of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 846; and that they possessed with the intent to distribute 100 grams or more of methamphetamine, to wit: approximately 440 grams of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). On November 3, 1994, Hawley entered a plea of guilty to Count I for conspiracy and agreed to cooperate with law enforcement. In exchange, the government dropped Count II. Hawley was sentenced on February 6, 1995. His sentence included a term of incarceration of 97 months. Hawley now appeals, alleging that the government breached its plea agreement "not to oppose" certain sentencing adjustments favorable to the Defendant and to file a motion for downward adjustment for substantial assistance "if appropriate." Hawley also claims that enhancing his offense level by two points for obstruction of justice constituted

double jeopardy because judgment previously was entered against him on the same conduct when he violated his appearance bond. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part, reverse in part and remand for proceedings consistent with this opinion.

BACKGROUND

On July 29, 1994, Hawley and Guardado had their first appearances before United States Magistrate Judge Ronald C. Newman relating to the above mentioned charges. At Hawley's detention hearing on August 1, 1994, Judge Newman released Hawley on a $50,000 unsecured bond payable to the United States upon failure to appear as ordered. In the appearance bond, Hawley agreed to appear at all scheduled appearances in the case. Judge Newman also advised Hawley that his next appearance date was August 16, 1994, at 9:00 a.m. at the U.S. District Court in Topeka, Kansas for arraignment.

On August 16, 1994, Hawley failed to appear at his arraignment. On that same day, Judge Newman signed an order forfeiting Hawley's bond and directing issuance of a bench warrant for Hawley's arrest. On August 24, 1994, United States District Court Judge Sam Crow signed an order granting the United States' motion for judgment on bond forfeiture in the Hawley matter. Hawley was eventually arrested again on September 9, 1994, in Arkansas, and he was arraigned on September 30, 1994, before Judge Newman. After a hearing on the United States' motion for revocation of Hawley's pretrial release, on October 6, 1994, Judge Newman revoked Hawley's pretrial release and entered an order of detention.

On November 3, 1994, Hawley, as part of a plea agreement with the United States Attorney's office, entered a plea of guilty to Count I of the indictment. At that time, Hawley stipulated to facts sufficient to prove him guilty beyond a reasonable doubt of the offense charged in Count I of the indictment. ¹ In addition to pleading guilty to Count I of the indictment, Hawley agreed to provide information about the matters charged in the indictment in this case and to submit to a polygraph examination on the information provided. In exchange for Hawley's plea, the government agreed to dismiss Count II of the indictment; "to not oppose that [Hawley] receive a three level reduction" for acceptance of responsibility; "to not oppose that [Hawley] not receive a two level enhancement for obstruction of justice;" and "if appropriate, prior to sentencing," to file a motion pursuant to U.S.S.G. § 5K1.1 for any substantial assistance provided pursuant to the agreement.

Prior to sentencing, Hawley learned that the government did not intend to file a motion for a downward departure based on substantial assistance. He then filed a motion to enforce the plea agreement because he had provided information to law enforcement. In addition, he filed a motion to continue the sentencing hearing scheduled for January 20, 1995. The district court, in chambers, held a hearing concerning matters that were relevant to Hawley's ability to provide information pursuant to the plea agreement. Hawley argued that he had been debriefed by the DEA subsequent to his entering a plea, and that he had provided information regarding drug activities in California and Arkansas. He further argued that, notwithstanding assurances from certain law enforcement officials in Arkansas that Hawley was still valuable to investigations there, his ability to provide information regarding drug activities in Arkansas had been compromised by law enforcement, and he suggested there was reason to suspect that law enforcement themselves were involved in the drug activities. Hawley requested that the court order an investigation to determine whether his "attempted" cooperation had been undermined by law enforcement in any way.

The court denied the motion to enforce the plea agreement on the government's representation that no assistance had been provided The matter proceeded to sentencing on February 6, 1995. Hawley again filed a motion to continue the sentencing hearing because reports from the earlier investigation had not been completed. In addition, he filed a renewed motion to enforce the plea agreement, incorporating the arguments from the earlier motion and stating in addition that he was now willing to provide the government with any information it desired, including information concerning his brother's drug activities which he had declined to provide earlier. The government responded that the investigation by the FBI had preliminarily indicated that the allegations made at the previous hearing were unsubstantiated. The government questioned Hawley's good faith claim of cooperation and stated that the information he had provided was not substantial and did not merit a downward departure motion. The court denied both of the motions made on behalf of Hawley.

to date that would be deemed substantial. However, the court continued the sentencing hearing to allow for an investigation into whether federal agents and/or local law enforcement agents in Arkansas were engaged in any misconduct which precluded Hawley's cooperation.

The court then determined the total offense level applicable to Hawley to be 30. In calculating this base offense level, the court determined that a two-point enhancement for obstruction of justice was merited due to Hawley's failure to appear at a prior court hearing. Further, the court concluded that Hawley was not entitled to a downward adjustment for acceptance of responsibility. Hawley argued that the obstruction enhancement was precluded under the Double Jeopardy Clause of the Fifth Amendment because judgment in the amount of $50,000 had been taken against him on his appearance bond based on conduct also used to apply the enhancement. Further, Hawley argued that he was entitled to an adjustment for acceptance of responsibility because he had cooperated with authorities subsequent to his arrest and had timely entered a plea of guilty.

The government acknowledged its obligations under the plea agreement not to oppose an adjustment for acceptance of responsibility and not to argue in favor of an obstruction of justice enhancement. However, the government went on to note that it was not aware of certain facts contained in the presentence report at the time of the plea agreement, and that the record did not indicate that this was a "circumstance meriting any extraordinary credit." In light of the government's position, Hawley requested that he be allowed to withdraw his plea due to the government's violation of the terms of the plea agreement. The court denied that request, concluded that the base offense level was accurately calculated at 30, and sentenced Hawley to the custody of the Bureau of Prisons for a term of 97 months.

On appeal, Hawley argues that: (1) He was subjected to double punishment for the same offense in violation of the Double Jeopardy Clause when the district court enhanced his base offense level by two levels for obstruction of justice after previously entering judgment against him on his appearance bond for the same conduct; (2) The district court erred in not granting him a reduction in his base offense level for acceptance of responsibility; (3) The district court erred in denying his Motion To Enforce The Plea Agreement; and (4) The district court erred in denying his Motion To Withdraw His Guilty Plea.

DISCUSSION

DOUBLE JEOPARDY

The Sentencing Guidelines provide for a two-point increase in the base offense level "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." U.S.S.G. § 3C1.1. The district court assessed this enhancement against Hawley because he failed to appear for arraignment as ordered. Hawley contends this constitutes double punishment in violation of the Double Jeopardy Clause because judgment previously was entered against him on his $50,000 appearance bond as a result of the same conduct. We review the district court's factual findings as to the obstruction of justice under the clearly erroneous The Fifth Amendment guarantee against double jeopardy protects...