U.S. v. Mosley

• Decision Date: 12 October 2007
• Docket Number: No. 06-3149.,06-3149.
• Citation: 505 F.3d 804
• Parties: UNITED STATES of America, Appellee, v. Veronica MOSLEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

505 F.3d 804

UNITED STATES of America, Appellee, v. Veronica MOSLEY, Appellant.

No. 06-3149.

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2007.

Filed: October 12, 2007.

Michael K. Lahammer, argued, Cedar Rapids, IA, for appellant.

Robert L. Teig, AUSA, argued, Cedar Rapids, IA, for appellee.

Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Veronica Mosley pled guilty to aiding and abetting armed bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a), (d). The district court sentenced her to 135 months' imprisonment. On appeal, Mosley contends that the government breached a plea agreement between the parties when it argued at sentencing that Mosley failed to accept responsibility because of false statements she made to authorities prior to the plea agreement. We agree that there was a breach, and in accordance with governing precedent, we thus vacate Mosley's sentence and remand for resentencing by a different judge.

I.

On October 6, 2005, Mosley and four others participated in an armed bank robbery in Iowa Falls, Iowa. Mosley was arrested on October 6, the day of the robbery, and gave two interviews to FBI agents. On October 14, 2005, Mosley took part in a proffer interview in which she gave statements to an FBI agent and an Assistant United States Attorney about her involvement in the bank robbery. A grand jury later returned a four-count Superceding Indictment against Mosley and four codefendants, charging them with violations of federal law in connection with the robbery. Pursuant to a plea agreement, Mosley pled guilty to aiding and abetting armed bank robbery under Count Two of the Superceding Indictment. (R. Doc. 89-2, Plea Agreement at ¶ 1). Mosley admits that she made misleading statements during the proffer interviews by minimizing her involvement in the robbery, but she contends that the government was aware of her deception before it reached the plea agreement.

Mosley's plea agreement contained a provision regarding her entitlement to an adjustment for acceptance of responsibility under USSG § 3E1.1. That provision states:

The parties stipulate and agree, that as of the date of this agreement, defendant appears to qualify for a two-level downward adjustment for acceptance of responsibility. However, the government shall be free to contest the adjustment under USSG § 3E1.1(a) should the defendant subsequently fail to continue to accept responsibility by failing to pay the special assessment; by providing false information to the court, the probation office, or the government; by unlawfully using controlled substances; by attempting to obstruct justice; by breaching this plea agreement; or by acting in a way that is inconsistent with, or failing to act in any way that is consistent with, the granting of the adjustment under USSG § 3E1.1(a).

(Plea Agreement at ¶ 7B). The agreement goes on to state that "[t]he parties make no other stipulations regarding offense level adjustments or guideline enhancements." (Id. at ¶ 8).

The district court accepted Mosley's guilty plea, and the United States Probation Office prepared a Presentence Investigation Report ("PSR"). The PSR recommended no upward adjustment for obstruction of justice under USSG § 3C1.1, and recommended that Mosley receive a two-level downward adjustment for acceptance of responsibility under § 3E1.1(a). The government responded with a letter to the probation office, stating in part that "[t]he United States has developed new information that sheds a different light on defendant's sentencing." (PSR Addendum, Govt. Letter at 1). The letter outlined allegations that Mosely played a prominent role in the robbery and was involved in obtaining a gun that was used in commission of the crime. According to the letter, "[t]his information is contrary to information Mosley conveyed in an October 6, 2005 interview after her arrest and contrary to a proffer she gave on October 14, 2005." (Id. at 3). The letter then announced the government's objections to the PSR's recommendations on obstruction of justice, acceptance of responsibility, and role in the offense. It concluded by arguing that "[d]efendant obstructed justice and, therefore, has not accepted responsibility." (Id.)

Through her attorney, Mosely responded with a letter to the probation office. That letter, dated April 27, 2006, objected to the PSR's recommendation of a six-level enhancement for use of a firearm, and said that Mosley "denies knowledge of the use of any firearm in this offense." (Id., Mosley Letter at 1). The letter also denied the government's claims that Mosley was a leader or organizer of the robbery, and that she was involved in obtaining a gun.

The parties next submitted sentencing memoranda to the district court. The government's memorandum stated that Mosley "obstructed justice by lying to investigators shortly after her arrest and during a proffer interview with counsel and the government." (R. Doc. 158 at 2). The government urged that "[s]ince defendant obstructed justice, she is not entitled to an acceptance of responsibility reduction." (Id. at 3). Mosley's memorandum, in reply, claimed that "the government now seeks to withdraw from [the] plea agreement without valid justification or cause," and asked the district court to "compel specific performance of the plea agreement by the government." (R. Doc. 157-2 at 2). The defense reiterated this position at the sentencing hearing, where it also requested that the district court assign the case to a different judge for sentencing.

At the two-day sentencing hearing, the district court heard evidence in support of the government's position that Mosley lied in her pre-plea statements to authorities, and that she therefore obstructed justice and failed to accept responsibility. The court ultimately ruled that the plea agreement precluded the government from arguing that Mosley failed to accept responsibility based on these pre-plea statements, and ordered specific performance of the agreement. But the court found that the government did not breach the plea agreement, because rather than making an argument about whether Mosley was entitled to acceptance of responsibility, the government had "only argued about how to interpret" the agreement. The court thus denied Mosley's request that the case be reassigned to another judge for sentencing. The court further ruled that even though the government could not use Mosley's pre-plea statements to argue that she failed to accept responsibility, it could use these statements to argue that she obstructed justice. Moreover, the court held, the government could use Mosley's post-plea statements to argue both that she obstructed justice and that she failed to accept responsibility.

The court concluded that Mosley obstructed justice in her letter of April 27, 2006, to the probation office, a post-plea statement in which Mosley falsely "denied her role in obtaining the firearm and its use in the armed bank robbery." Because she "provided materially false information" to a probation officer in respect to a presentence investigation, the court applied a two-level upward adjustment for obstruction of justice under USSG § 3C1.1. The court also concluded that Mosley failed to qualify for a two-level reduction for acceptance of responsibility, because in her letter to the probation office, she falsely denied relevant conduct, namely, her role in obtaining the firearm. See USSG § 3E1.1, comment. (n. 1(a)).

After adjusting the offense level upward six levels for use of a firearm, and declining to make a four-level upward adjustment for role in the offense, the district court determined that Mosley had an adjusted offense level of thirty-two and Criminal History Category of I, for an advisory guideline range of 121-151 months. The court evaluated the factors set forth in 18 U.S.C. § 3553(a), and sentenced Mosley to 135 months' imprisonment. Mosley appeals her sentence, arguing that the district court erred by allowing the government to argue for a two-level adjustment for obstruction of justice and against a two-level adjustment acceptance of responsibility based on her pre-plea statements.

II.

A.

We review questions regarding the interpretation and enforcement of plea agreements de novo. Where a plea agreement has been accepted by the court, we generally interpret the meaning of the terms in the agreement according to basic principles of contract law. United States v. Norris, 486 F.3d 1045, 1051 (8th Cir.2007) (en banc) (plurality opinion); id. at 1054 (concurring opinion).

In the plea agreement, "[t]he parties stipulate and agree, that as of the date of this agreement, defendant appears to qualify for a two-level downward adjustment for acceptance of responsibility." (Plea Agreement at ¶ 7B). The agreement preserves the government's right to contest the adjustment "should the defendant subsequently fail to continue to accept responsibility." (Id.). We agree with the district court that these provisions prohibit the government from arguing that Mosley failed to accept responsibility based on her pre-plea statements. In exchange for Mosely's guilty plea, the government promised to take the position that she had accepted responsibility at the time of the plea agreement. Any argument that Mosley failed to accept responsibility because of actions taken before signing the agreement would conflict with the government's promise, and would therefore breach the agreement.

We also conclude that the government breached the agreement by making this prohibited argument. In its letter to the probation office objecting to portions of the PSR, the government stated that Mosley "obstructed justice and, therefore, has not accepted responsibility," because she made false statements in her pre-plea interviews. (PSR Addendum, Gov't Letter at 3) (emphasis added). In its opening sentencing memorandum to the district court, the government argued that...