U.S. v. Olesen, s. 90-1430S
| Citation | 920 F.2d 538 |
| Decision Date | 04 December 1990 |
| Docket Number | Nos. 90-1430S,90-1025SI,s. 90-1430S |
| Parties | UNITED STATES of America, Appellee, v. Michael Joe OLESEN, Appellant. UNITED STATES of America, Appellee, v. Michael Gene LANDON, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
David R. Stickman, Omaha, Neb., for appellant Landon.
Robert Kromminga, Des Moines, Iowa, for appellant Olesen.
Ronald M. Kayser, Des Moines, Iowa, for appellee.
Before WOLLMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MAGILL, Circuit Judge.
Michael Gene Landon and Michael Joe Olesen pleaded guilty to drug and related charges arising from the same indictment. Landon appeals the district court's amendment of his plea agreement with the government, arguing that the court did not have the authority to make any modifications. Olesen appeals the district court's two-point upward adjustment of his offense level, arguing that the district court erred in making factual determinations pursuant to the Federal Sentencing Guidelines Sec. 3B1.1(c). We reverse the district court's modification of Landon's plea agreement, order a reinstatement of the original agreement and affirm the district court's upward adjustment of Olesen's offense level.
On January 19, 1989, the government filed a twenty-nine-count indictment naming Landon, Olesen and seven others. Landon was indicted on January 19, 1989; he entered into a plea agreement on September 6, 1989 in which he agreed to plead guilty to five of the original twenty-nine counts. The counts to which Landon pleaded guilty included possession with the intent to distribute approximately two pounds of cocaine; conspiracy to distribute cocaine; currency transaction violations; and money laundering violations. As part of the plea agreement, Landon agreed to cooperate with the authorities and forfeit all drug-related property he owned. The plea agreement was made pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure. The agreement stipulated that Landon had a category I criminal history and that he had a combined offense level of 34. Therefore, according to the Sentencing Guidelines, the appropriate sentencing range was 151-188 months. The agreement also stipulated that "pursuant to Rule 11(e)(1)(C) that a term of imprisonment of 151 months and no fine would be an appropriate disposition in this case." Brief for Appellant at Add. 11 (emphasis in original).
The district court unconditionally accepted the plea agreement on September 7, 1989, ordered a presentence report to be disclosed by October 20, 1989, and scheduled sentencing for December 28, 1989. The Presentence Investigation Report stated that Landon had a category II criminal history and recommended that the district court sentence Landon from 324 to 405 months. The government accused Landon of breaching the plea agreement by refusing to provide certain testimony and failing to turn over drug-related assets. Landon petitioned for a writ of mandamus to compel the district court to enforce the original plea agreement; the Eighth Circuit denied the writ of mandamus.
On February 14, 1990, the district court issued findings of fact and an order reforming the plea agreement. In its conclusions of law, the court denied Landon's request for specific performance of the original plea agreement and modified the term of imprisonment portion of the agreement to reflect a category II criminal history. This modification resulted in an increase of seventeen months in the term of imprisonment. The district court gave Landon eight days to decide whether he would accept the reformed agreement and informed him that failure to accept the agreement would result in the court's rejection of his previous guilty plea and that the district court would then enter a not guilty plea and commence trial on March 9, 1990. On February 21, 1990, Landon accepted the court's reformed plea agreement.
Landon appeals the district court's modification of his plea agreement and seeks reinstatement of the original sentence of 151 months.
In Olesen's plea agreement, he pleaded guilty to one count of conspiracy to distribute cocaine. At Olesen's sentencing hearing, the district court found that Olesen deserved a two-point increase in his base offense level for his role as an organizer, leader, manager, or supervisor pursuant to Sentencing Guidelines Sec. 3B1.1. In support of this decision, the district court found that Olesen set his own prices, decided whom he would sell to and how much he would sell. The district court also noted that the circumstances surrounding Olesen's offense required a considerable amount of organization and that based on the quantities of cocaine he sold one could reasonably conclude that other people would resell the cocaine they bought from Olesen. The district court concluded:
[Olesen] supervised his own operation, managed his own operation and distributed to persons both for their own use and for further distribution. And that he was not directed and forced into such things, as pricing, by others. He could do that on his own.
....
And in addition, the fact that although he is in an organizational role, which aggravates it, it is a relatively close question on that, which is to say it wasn't a major organizational role, even though a supervisory role it was.
Sentencing Transcript at 44-46. Olesen now argues that these findings are erroneous and the subsequent two-point increase was therefore improper.
Landon argues on appeal that the district court violated Rule 11 of the Federal Rules of Criminal Procedure when it modified a plea agreement after unconditional acceptance. Rule 11 specifically describes the appropriate procedure for accepting plea agreements. District courts are prohibited from participating in any plea-bargaining discussions. The rule states that when parties reach a plea agreement that defines a specific sentence as the appropriate disposition of the case, a district court may "accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report." Fed.R.Crim.P. 11(e)(2). Once a court has accepted an agreement, however, there is no provision in the rules that allows it to reject or modify the agreement. If the government or the court does not adhere to the terms of a plea agreement, a defendant has two remedies, namely, specific performance of the plea agreement or withdrawal of the plea. United States v. Jefferies, 908 F.2d 1520, 1526 (11th Cir.1990) ().
Appellate courts have consistently prohibited district courts from interfering in the plea bargaining process. In United States v. Werker, 535 F.2d 198 (2d Cir.1976), a district court was about to intervene in the plea bargaining process and tell the defendant what sentence would be imposed if the defendant pleaded guilty. Id. at 201. The government sought and obtained a writ of mandamus to prevent the district court from revealing this information. Id. at 200. The Second Circuit held that Rule 11 unequivocally prohibited the judge from intervening in this way. Id. at 202.
In United States v. Cruz, 709 F.2d 111 (1st Cir.1983), the court unconditionally accepted a plea agreement whereby the defendant pleaded guilty to a misdemeanor narcotics possession. Two months later the district court reversed itself and rejected the plea on the grounds that it was too lenient in light of the presentencing report. The First Circuit overruled the district court, saying "once the court accepted the agreement, thereby binding the defendant and prosecution, it could not simply change its mind based on information in the presentence report, at least where that information revealed less than fraud on the court." Id. at 114-15.
Courts have ruled, however, that there are circumstances where a district court may bypass the limits of Rule 11. In United States v. Partida-Parra, 859 F.2d 629 (9th Cir.1988), the court held that a district court may go beyond the bounds of Rule 11 when there is a fraud on the court. Id. at 632. The Ninth Circuit went on to distinguish factual mistakes from fraud: "We have found no authority that empowers the court to abrogate a plea agreement to relieve one party of its own mistake." Id. at 633. In this case, however, neither the government nor the court argues fraud, so the exception is not available.
Applying the reasoning of Jefferies, Werker, Cruz, and Partida-Parra, we hold that Rule 11 does not authorize a district court to intervene in the plea agreement process absent a showing of fraud.
To support the court's reformation of the plea agreement, the government relies on contract law doctrines. This comparison is not novel. Other courts have compared accepted plea agreements to contracts. 1 In United States v. Weaver, 905 F.2d 1466 (11th Cir.1990), the court applied contract principles to a government letter granting immunity to a criminal defendant. In responding to the defendant's claim that there was a mutual mistake in the "contract," the court said:
[R]eformation of a written agreement is warranted only when the evidence demonstrates that the parties' mutual mistake resulted in a written document which does not accurately reflect the terms of their agreement. Consequently, reformation is generally, without more, not an available remedy where the evidence demonstrates mistake or change of mind of only one of the contracting parties.
Id. at 1472 (citations omitted). Applying this principle to Landon's plea agreement, there was no mistake in Landon's mind about the term of imprisonment....
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