U.S. v. Keresztury
| Decision Date | 05 June 2002 |
| Docket Number | No. 01-50909.,01-50909. |
| Citation | 293 F.3d 750 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Brandon KERESZTURY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for Plaintiff-Appellee.
C. Robert Heath, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas.
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
Defendant-Appellant Brandon Keresztury appeals his 70-month prison sentence for violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), which together criminalize possession, with intent to distribute, of 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD). We conclude that Keresztury is entitled to bring this appeal and, further, that the sentencing court erred when, in determining Keresztury's base offense level under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), it used the weight of the entire liquid medium with which the LSD was mixed. We vacate the 70-month prison sentence, and remand the case for resentencing.
In February 2001, an undercover officer with the Texas Department of Public Safety ("DPS") accompanied an informant to Austin, Texas, where the informant phoned Keresztury and asked to buy some LSD. When Keresztury obtained the LSD from his source, the undercover officer went to Keresztury's apartment and bought the LSD for $2,000. The substance that Keresztury sold was a mixture of liquid LSD and vodka in a single bottle. Together, the LSD and the vodka weighed 18.53 grams.
Keresztury was charged in an Information with violation of 21 U.S.C. §§ 841(a)(1)1 and 841(b)(1)(A).2 He entered into a plea agreement with the government which contained the following relevant provisions:
1. The defendant has agreed to enter a plea of guilty to an Information which charges him with Possession with intent to distribute a controlled substance, to-wit: 10 grams or more of a mixture or substance containing a detectable amount of [LSD], in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A). The defendant understands that due to the quantity of LSD, he faces a sentencing range of imprisonment which may not be less than 10 years or more than life....
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3. The United States Attorney for the Western District of Texas has made no agreement with the defendant or his counsel concerning a specific sentence.
The United States has agreed, however, not to contest acceptance of responsibility for this defendant as long as he continues to truthfully acknowledge his guilt of this offense. The United States of America specifically reserves its right to speak at sentencing under Rule 32(a)(1) of the Federal Rules of Criminal Procedure.
4. DEFENDANT'S TRUTHFUL STATEMENT AND COOPERATION. The defendant agrees to cooperate fully and truthfully with the government as follows:
...
k. Defendant agrees that if the defendant fails to provide full and truthful cooperation, or has committed any federal, state or local crime between the date of this agreement and his sentencing, or has otherwise violated any other provision of this agreement, the agreement may be voided by the government and the defendant shall be subject to prosecution for any federal crime which the government has knowledge [sic] including, but not limited to, perjury, obstruction of justice, and the substantive offenses arising from this investigation....
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6. WAIVER OF APPEAL: Defendant is aware that his sentence will be imposed in conformity with the Federal Sentencing Guidelines and Policy Statements. The defendant is also aware that a sentence imposed under the Guidelines does not provide for parole. Knowing these facts, defendant agrees that this Court has jurisdiction and authority to impose any sentence within the statutory maximum set for his offense, including a sentence determined by reference to the Guidelines, and he expressly waives the right to appeal his sentence on any ground, including any right to appeal conferred by 18 U.S.C. § 3472. However, should the court depart upwards from its guideline calculation, then in that event, the Defendant could appeal the justification for and imposition of such an upward departure, but no other issue as relates to the Sentencing Guidelines.
(Emphasis added.)
When Keresztury appeared before the magistrate judge to be re-arraigned and plead guilty, the magistrate judge reviewed the plea agreement with Keresztury, particularly the waiver of appeal:
(Emphasis added.)
The magistrate judge also reviewed with Keresztury the statutory minimum and maximum prison sentence (10 years to life) for the offense, under 21 U.S.C. 841(b)(1)(A).
In his Presentence Investigation Report (PSI), the probation officer applied U.S.S.G. § 2D1.1 to determine that Keresztury's base offense level was 32.3 As Keresztury met all the criteria set forth in U.S.S.G. § 5C1.2(a), however, the statutory minimum of 10 years' imprisonment did not apply,4 and the PSI recommended reduction of Keresztury's offense level by two, to offense level 30. In addition, Keresztury was determined to have zero criminal history points, which established a criminal history category of I under the Guidelines. Based on the total offense level of 30 and the criminal history category of I, the U.S.S.G. range of imprisonment periods was 97-121 months.5
Keresztury filed objections to the PSI, contending that the probation officer used the wrong weight of LSD to calculate his base offense level, and that he warranted a further offense level decrease for acceptance of responsibility. The United States probation officer defended his calculation of the base offense level, relying on U.S.S.G. § 2D1.1 Application Note 1,6 and argued against a reduction for acceptance of responsibility, noting that Keresztury had tested positive for marijuana use on multiple occasions while out on bond and finally had his bond revoked when he tested positive for cocaine use. The government also responded to Keresztury's objection relating to an adjustment for acceptance of responsibility by stating:
The United States agrees [with the recommendation of the probation officer] that the defendant should pay some price for his continued drug usage which clearly violated his bond conditions for a very serious offense. His continued criminal conduct not only violated his promises to the Court, but also the assurances he provided in the plea agreement that he would commit no crimes between the date of the agreement and the date of his sentencing. Obviously, in order to use controlled substances, Mr. Keresztury had to possess them, which is a violation of both state and federal law. To give him the same points off as other defendants who were completely clean while they were on bond does not seem fair or just.
(Emphasis added.)
At the sentencing hearing, Keresztury raised both objections again. The judge overruled the objection relating to the proper weighing of the LSD, but granted Keresztury's motion regarding acceptance of responsibility and reduced his offense level an additional three levels, bringing it down to offense level 27. The Guidelines' sentencing range for offense level 27 is 70-87 months. The judge sentenced Keresztury at the bottom of the Guidelines range (70 months imprisonment), plus five years supervised release and a $100 special assessment. Despite his plea agreement's waiver of appeal, Keresztury timely filed a notice of appeal.
There are two primary issues in the instant case: whether the plea agreement remains effective or has been voided by the government's conduct, and whether the Guidelines were properly applied. We review both issues de novo.7
Keresztury advances two reasons in support of his entitlement to bring this appeal despite the waiver of his right to appeal in the plea agreement. He first contends that in the plea agreement (and as emphasized by the magistrate judge at rearraignment) he expressly reserved the right to appeal any sentence that exceeded the sentencing guideline range for his offense, and, he maintains, the imposition of a sentence predicated on a base level offense of 32 fits within this category of allowed appeals. He argues second, and in the alternative, that when it contested the downward departure for acceptance of responsibility, the government breached the plea agreement or elected to void it, thereby releasing both the government and Keresztury from all strictures of the agreement, including Keresztury's waiver of his right to appeal. As we conclude that his argument in the alternative has merit, we examine his primary argument no further.
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