U.S.A. v. Lopez

• Decision Date: 05 May 2000
• Docket Number: No. 99-4397,99-4397
• Citation: 219 F.3d 343
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARLOS LOPEZ, Defendant-Appellant. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 343

219 F.3d 343 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARLOS LOPEZ, Defendant-Appellant.

No. 99-4397.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: May 5, 2000

Decided: July 13, 2000

Appeal from the United States District Court for the District of South Carolina, at Spartanburg.

Henry M. Herlong, Jr., District Judge. (CR-96-739) [Copyrighted Material Omitted] COUNSEL ARGUED: Andrew Ross Mackenzie, BARRETT & MACKENZIE, L.L.C., Greenville, South Carolina, for Appellant. David Calhoun Stevens, Assistant United States Attorney, Greenville, South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United States Attorney, Greenville, South Carolina, for Appellee.

Before WIDENER and MOTZ, Circuit Judges, and Irene M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Widener and Judge Keeley joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

A jury convicted Carlos Lopez of distribution of marijuana and conspiracy to possess with intent to distribute marijuana. The district court found that Lopez had distributed more that 1000 kilograms of marijuana and sentenced him to 188 months imprisonment. We vacate the sentence and remand for resentencing.

I.

Lopez was tried on January 25-26, 1999. Prior to trial, on September 11, 1998, Lopez gave a proffer statement with the expectation that he would be entering a plea agreement with the government. In the statement, he admitted distributing approximately 1200 kilograms of marijuana. A letter from the government to Lopez's attorneys set forth the terms of the proffer agreement,¹ including the conditions under which the information that Lopez provided in the statement could be used against him. After Lopez declined to enter a plea during three different change of plea hearings, Lopez proceeded to trial.

During the trial, Lopez actively participated in his own defense; he cross-examined a number of government witnesses and gave the closing argument. The government called several of Lopez's co-conspirators who testified about the quantities of marijuana they had purchased from Lopez. The government also called Special Agent Steve Russell of the Drug Enforcement Agency, who summarized the trial testimony and, based on that testimony, estimated that Lopez was responsible for approximately 1000 pounds (or 450 kilograms) of marijuana within the distribution network.

Following Lopez's conviction, the United States Probation Office prepared a pre-sentence report (PSR), which estimated that Lopez was responsible for distributing 1652.9 kilograms of marijuana, an estimate based on "confidential informant statements and seized cash." The PSR used this estimate to calculate Lopez's base offense level under U.S. Sentencing Guidelines Manual § 2D1.1 (1998). Lopez filed an objection to the PSR. In response, contending that Lopez breached the proffer agreement by taking a position at sentencing contrary to the information previously provided under that agreement, the government offered the testimony of Special Agent Russell regarding the substance of Lopez's proffer statement. The district court permitted the testimony as to the proffer over defense counsel's objection.

The district court ultimately found that Lopez had distributed more than 1000 kilograms of marijuana "based upon the testimony at trial." The district court noted that the proffer statement was "a second basis for making that finding," but that "it [was] not needed as far as a calculation as to the drug amount."

On appeal, Lopez challenges the district court's decision to allow testimony regarding the substance of his proffer statement as well as the court's factual determination regarding the drug quantity attributable to him. We consider each of these challenges in turn.

II.

Lopez first contends that the district court's consideration of his proffer statement during sentencing violated the terms of the proffer agreement. This contention raises a question of law that we review de novo. See, e.g., United States v. Blake , 81 F.3d 498, 503 (4th Cir. 1996).

Section 1B1.8 of the Sentencing Guidelines provides:

Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement.

U.S.S.G. § 1B1.8(a); see also Fed. R. Crim. P. 11(e)(6); United States v. Cobblah, 118 F.3d 549, 551 (7th Cir. 1997) (explaining that a proffer agreement is a contract governed by its express terms); United States v. Shorteeth, 887 F.2d 253, 256-57 (10th Cir. 1989) (same).

Cases upholding the use of proffer statements during sentencing involve proffer agreements that explicitly allowed the government to use the information during sentencing under certain conditions precedent. For example, in Cobblah, the proffer agreement provided that if Cobblah testified contrary to the substance of the proffer statement or "otherwise present[ed] a position inconsistent with the proffer," the government could use the proffer "at sentencing for any purpose." 118 F.3d at 551 (emphasis added); see also United States v. Griffin, 84 F.3d 912, 919 (7th Cir. 1996) (proffer agreement incorporated similarly broad language).

The proffer agreement in the instant case does not contain language like that used in the agreements in Cobblah and Griffin, despite the government's attempt to characterize the agreement as such during the sentencing hearing. The proffer agreement here expressly provides that any self-incriminating information would"not be used in determining the applicable sentencing guideline range should [Lopez] be convicted." (Emphasis added.) The agreement permitted the government to use Lopez's proffer statement only under the following limited circumstances: for cross-examination if Lopez was a witness at trial and gave testimony "materially different from" the information he gave in his proffer; for prosecution of Lopez for perjury or making a false statement; or if Lopez breached the proffer agreement or a subsequent plea agreement.

The government brought the proffer statement to the district court's attention in response to Lopez's objection to the amount of marijuana specified in the PSR--1652.9 kilograms. In doing so, the government misstated the terms of the proffer agreement, maintaining that the agreement permitted the government to use at the sentencing hearing "anything he told us" in the proffer statement"since he is saying [at sentencing] these figures [in the PSR] are wrong." Perhaps recognizing that it mischaracterized the proffer agreement before the district court, the government now contends that Lopez "constructively testified" when he participated in his own defense at trial and when he "personally responded" to the PSR at the sentencing hearing. As such, a "condition precedent to the use of his statements under the proffer agreement" was assertedly satisfied. Brief of Appellee at 10.²

We reject the government's argument and find that the use of the information in Lopez's proffer statement, provided to the district court through the testimony of Special Agent Russell at Lopez's sentencing hearing, clearly violated the terms of the proffer agreement. First, assuming that inconsistent trial testimony by Lopez would somehow permit use of the proffer at sentencing, Lopez never gave any actual or "constructive" testimony at trial. He did participate in his defense during trial, but he did not take the stand as a witness under oath. Lopez did accuse certain government witnesses of lying, and he questioned the admissibility of certain testimony, but he did so outside the presence of the jury. In addition, in his closing statement, Lopez challenged the amount of marijuana the government attempted to attribute to him during the trial, but, as the district court properly instructed the jury, "[t]he statements, objections, arguments by the defendant and by the attorney for the government [are] not evidence." Finally, Lopez's objection at the sentencing hearing to the statement in the PSR that he distributed 1652.9 kilograms of marijuana--assuming again that this objection somehow constitutes "constructive testimony"--was not inconsistent with, or "materially different from," the admission in...