U.S. v. Herrera

• Decision Date: 07 May 1991
• Docket Number: No. 90-3196,90-3196
• Citation: 928 F.2d 769
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rafael HERRERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 769

928 F.2d 769

UNITED STATES of America, Plaintiff-Appellee, v. Rafael HERRERA, Defendant-Appellant.

No. 90-3196.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 22, 1991.

Decided March 25, 1991.

Rehearing and Rehearing En Banc

Denied May 7, 1991.

Robert Brichler, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Cincinnati, Ohio, for plaintiff-appellee.

Judith A. Halprin (argued), Chicago, Ill., for defendant-appellant.

Before MARTIN and KRUPANSKY, Circuit Judges, and LIVELY, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Rafael Herrera raises three issues on appeal: (1) did the United States breach the plea agreement when it informed the probation office of the quantities of drugs involved in the case beyond those incorporated into the amended superceding indictment; (2) did the district court err in relying upon information in the pre-sentence report given by an informant who Herrera asserts is unreliable; (3) did the district court make the required finding of fact under Fed.R.Crim.P. 32(c)(3)(D) or err in the application of Federal Sentencing Guidelines Secs. 1B1.3(a)(1), 1B1.1(c), or 3E1.1. For the following reasons, we affirm the judgment of the district court.

On August 3, 1989, a superceding indictment was filed charging Rafael Herrera and Miguel Abrego with various offenses involving the distribution of marijuana, cocaine, and heroin. Herrera reached a plea agreement with the United States on October 2, 1989, and entered a guilty plea later that same day. The plea agreement explicitly stated that there was no agreement as to the ultimate sentence and that he could receive "the maximum penalty provided by law." The count to which Herrera pled guilty limited the span of the conspiracy to distribute to eleven days, substantially down from the two years in the earlier indictment. Herrera asserts that the purpose of this was to limit the quantities of drugs which the court could consider in determining the sentence. The United States responds that there was never a promise to withhold these facts from the probation officer. Herrera's counsel attempted to refute this assertion by introducing affidavits of the counsel of co-defendants who were present during the plea bargain negotiations and by giving his own testimony. Herrera's counsel and one affidavit state that the express purpose of limiting the time frame of the conspiracy was to limit the amount of narcotics involved. A second affidavit states that the limiting of the amount of narcotics involved was not only the purpose behind the limitation on the period of the conspiracy covered by the indictment but was also specifically agreed to in and of itself. Herrera asserts that the plea agreement was hastily prepared and the reason there was not a specific offense level stated in the agreement was due to a conflict between him and the government concerning both the "role in the offense" adjustment and the "acceptance of responsibility" adjustment. After considering the affidavits and the testimony of the United States Attorney, the district court stated "the issue before the court is whether the probation department could go outside the conspiracy and the weights that are listed in the [indictment]." The district court then heard Herrera's counsel's version of the plea negotiations. The district court analyzed the disputed information under Ohio contract law, noting that a specific agreement must be arrived at and that the evidence has to be clear and convincing as to that agreement. It further noted that under the parol evidence rule the written document reflects the binding agreement of the parties. Ultimately, the district court rejected Herrera's assertion concerning the existence of a separate agreement that no amounts of narcotics beyond those included in the superceding indictment were to be included in the government's version of the offense as reported to the probation office.

Herrera also objected to the district court's acceptance of a portion of the pre-sentence report relating to information taken from an informant who Herrera asserts is unreliable. The district court rejected this argument, expressly finding the informant to be sufficiently reliable. Lastly, Herrera argued that he was not a leader or organizer of the drug group and that he did accept responsibility for the conspiracy. The court rejected both of these assertions.

Using the pre-sentence report, the judge arrived at a base offense level of 36 under the Guidelines. The court then found that Herrera was a leader or organizer in a criminal activity and increased his base offense two levels to 38. Because the court found that Herrera had a criminal history category of I, the applicable guideline range was 235 to 293 months with a term of supervised release of five years. The court sentenced Herrera to imprisonment for twenty years and Herrera timely filed this appeal.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court stated, "when 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 for consideration, such a promise must be fulfilled." Id. at 262, 92 S.Ct. at 499. The language of Santobello has established the principle that a plea bargain is contractual in nature. See United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979); Petition of Geisser, 554 F.2d 698, 704 (5th Cir.1977). The Supreme Court in Santobello used terminology which rests at the core of contract law: "mutually binding promises freely given in exchange for valid consideration." United States v. Bridgeman, 523 F.2d 1099, 1109-10 (D.C.Cir.1975), cert. denied sub nom. Johnson v. United States, 425 U.S. 961, 96 S.Ct. 1743, 48 L.Ed.2d 206 (1976). In Baker v. United States, 781 F.2d 85 (6th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986), this circuit stated:

It is impossible for a trial judge to properly administer a plea agreement if it consists of secret terms known only to the parties. Furthermore, "a plea bargain itself is contractual in nature and 'subject to contract law standards.' " To allow defendant to attempt to prove by affidavit that the agreement is otherwise than it appears, unambiguously, on a thorough record would violate established contract-law standards. The Court holds therefore that where Rule 11 procedures were fully adequate, absent extraordinary circumstances, or some explanation of why defendant did not reveal other terms, at least when specifically asked to do so by the court, a defendant's plea agreement consists of the terms revealed in open court....

Id. at 90 (citation omitted). We have also stated that the trial court should look to what the defendant reasonably understood when he entered the plea agreement in order to determine whether the agreement has been broken. United States v. Mandell, 905 F.2d 970 (6th Cir.1990). Along similar lines in United States v. Harvey, 791 F.2d 294 (4th Cir.1986), the Fourth Circuit noted:

Both constitutional and supervisory concerns require holding the government to a greater degree of responsibility than the defendant (or possibly than would be either of the parties to commercial contracts) for imprecisions or ambiguities in plea agreements. See, e.g., United States v. Bowler, 585 F.2d 851, 854 (7th Cir.1978) (plea agreement not appropriate context for "rigidly literal" construction of language); Palermo v. Warden, 545 F.2d 286, 295 (2d Cir.1976) (government invocation of restrictive contract principles "disingenuous"); United States v. Crusco, 536 F.2d 21, 26 (3d Cir.1976) (government's "strict and narrow interpretation of its commitment ... untenable"); Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973) (government held to "meticulous standards of both promise and performance").

Id. at 300-301.

Herrera relies upon United States v. Tobon-Hernandez, 845 F.2d 277 (11th Cir.1988); United States v. Nelson, 837 F.2d 1519 (11th Cir.), cert. denied sub nom. Waldhart v. United States, 488 U.S. 829, 109 S.Ct. 82, 102 L.Ed.2d 58 (1988), and In Re Arnett, 804 F.2d 1200 (11th Cir.1986). However, reliance upon these cases is misplaced because in each of these cases there is a specific reference in the plea agreement to the fact in contention or an acknowledgment by the government that the facts were in some way being limited. The agreement between Herrera and the government was read in open court and the record reflects that the district court followed the procedures set forth in FED.R.CRIM.P. 11. After discussing the plea agreement with Herrera, the following exchange between the court, the Assistant United States Attorney, the defendant, and the defendant's attorneys took place:

THE COURT: Now, I'll inquire of the United States Attorney, Mr. Brichler, the defense counsel, Miss Cook and Mr. Rascia, as well as Mr. Herrera, as to the plea negotiations in this case.

MR. BRICHLER: Your Honor, there's a written plea agreement in this matter.... The substance of the agreement is as follows: It is agreed between Mr. Herrera and the United States Attorney that he will plead guilty to Count I of the indictment as amended, which charges him with conspiracy to distribute cocaine, heroin and marijuana. The defendant understands the punishment prescribed by law as previously outlined by the court.

In return for the defendant's plea of guilty and admission of guilt, the United States agrees to dismiss the remaining counts of the indictment. The defendant understands that there is no agreement concerning his ultimate sentence, as that determination is the sole discretion of the district court and he could receive the maximum penalty provided by law. He has also agreed to pay a $50.00 assessment also required by law. And there is a paragraph indicating that the plea agreement was interpreted in Spanish to Mr. Herrera. It's signed by myself, by Mr. Herrera, and...