U.S. v. Stobaugh, 04-2312.

• Decision Date: 25 August 2005
• Docket Number: No. 04-2312.,04-2312.
• Parties: UNITED STATES of America, Appellee, v. John F. STOBAUGH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

420 F.3d 796

UNITED STATES of America, Appellee, v. John F. STOBAUGH, Appellant.

No. 04-2312.

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2005.

Filed: August 25, 2005.

COPYRIGHT MATERIAL OMITTED

David R. Mercer, argued, Springfield, MO, for appellant.

Richard E. Monroe, argued, Asst. U.S. Atty., Springfield, MO (Lajuana M. Counts, Asst. U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before RILEY, BOWMAN, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

John F. Stobaugh ("Stobaugh") pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court¹ sentenced Stobaugh to 110 months' imprisonment. Stobaugh appeals his sentence, arguing that the Government breached his plea agreement during his sentencing hearing and that the district court erred in calculating his criminal history points and in applying the cross-reference in United States Sentencing Guidelines § 2K2.1(c). Stobaugh also contends that his sentence, pronounced under mandatory Sentencing Guidelines, violates United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons discussed below, we affirm.

I. Background

On December 23, 2003, Stobaugh pleaded guilty to a one-count indictment that charged him with being a convicted felon in possession of a "loaded Mossberg 12 gauge pump shotgun" in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The plea agreement as originally negotiated stated that, "[i]n addition to the Mossberg 12 gauge shotgun located in the defendant's bedroom, a total of 58.84 grams of methamphetamine and 9.11 grams of marijuana were located in the defendant's garage." The plea agreement also contained the following provisions:

9. The defendant understands the United States will provide to the Court and the United States Probation Office a government version of the offense conduct. This may include information concerning the background, character, and conduct of the defendant including the entirety of the defendant's criminal activities. The defendant understands that these disclosures are not limited to the count to which the defendant pled guilty. . . . The United States further reserves its right to make any recommendations it deems appropriate regarding the disposition of this case, subject only to any limitations set forth in this Plea Agreement.

10. With respect to the application of the Sentencing Guidelines to this case, the parties agree as follows:

a. The applicable Guideline section for the offense of conviction is U.S.S.G. § 2K2.1.

b. The base offense level is 14. U.S.S.G. § 2K2.1(a)(6).

c. [The government will file a motion stating that Stobaugh is entitled to a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.]

. . .

e. The defendant understands [that the guidelines estimate] does not bind the Court or the United States Probation Office. . . .

. . .

11. There are no agreements between the parties with respect to any Sentencing Guideline issues other than those specifically listed in paragraph 10, and its subsections and paragraph 5 [stating that the government would recommend a sentence at the low end of the applicable guidelines range as determined by the court]. The parties agree that the guideline calculations set forth in paragraph 10 are only estimates and do not bind the parties. As to any other issues which may be found to exist, the parties are free to advocate their respective positions at the sentencing hearing.

At Stobaugh's change-of-plea hearing, Stobaugh and the Government agreed to strike the reference to the methamphetamine and marijuana from the factual stipulation. The plea agreement was otherwise unaltered. When the district court inquired for the record why the plea agreement was in Stobaugh's best interests, Stobaugh's counsel replied, "In addition to the anticipated benefits of receiving a reduction for acceptance of responsibility, there is also an agreement in the plea agreement that the government will recommend a sentence at the low end of whatever applicable guideline range is determined." The district court accepted the plea agreement.

The United States Probation Office prepared a Presentence Investigation Report ("PSR"). The PSR listed as relevant conduct that Stobaugh possessed with intent to distribute 58.81 grams of methamphetamine found in his garage during his arrest, and that he possessed the firearm in connection with that offense. Therefore, the PSR recommended that the district court apply U.S.S.G. § 2K2.1(c). Under § 2K2.1(c), a defendant's offense level is determined by applying U.S.S.G. § 2X1.1 to the connected offense if the resulting offense level would be higher than the base offense level found in § 2K2.1(a). For a connected offense of possession with intent to distribute methamphetamine, § 2X1.1 requires the offense level to be calculated under U.S.S.G. § 2D1.1. Applying § 2D1.1 to the 58.81 grams of methamphetamine with the specific offense characteristic of possession of the firearm, the PSR calculated Stobaugh's offense level to be 28. Subtracting two levels for acceptance of responsibility and one level for timely notification of his intent to plead guilty pursuant to § 3E1.1, the PSR recommended that Stobaugh's total offense level should be 25. Stobaugh filed an objection to the application of the § 2K2.1(c) cross-reference and the findings supporting it.

Prior to sentencing, the Government informed Stobaugh that it intended to have a witness present at Stobaugh's sentencing hearing to support the PSR's recommendations regarding § 2K2.1(c). In response, Stobaugh filed a "Motion to Enforce the Plea Agreement." In that motion Stobaugh argued, "For the government to present evidence of a base offense level higher than it stipulated to in the plea agreement is a violation of the contractual nature of the plea agreement." The motion requested the district court to "specifically enforce Paragraph 10 of the plea agreement."

The Government secured the presence of a law enforcement officer at Stobaugh's sentencing hearing to testify in support of the PSR's finding that Stobaugh possessed the firearm in connection with a drug offense. The district court began the sentencing hearing by considering whether the presentation by the Government of evidence that would support the application of the § 2K2.1(c) cross-reference offense level of 28 would breach the plea agreement's specific reference to the § 2K2.1(a) base offense level of 14. Without expressly resolving that question, the district court decided to preempt the Government from initiating any arguments to support the cross-reference by ordering the Government to present the witness at the court's direction. Stobaugh objected that because the Government arranged on its own initiative to have the witness present, the district court would not really be hearing the evidence on the court's own initiative. The district court gave Stobaugh the option of rescheduling the sentencing hearing. However, the district court stated that it would need to hear evidence regarding the PSR's findings on the methamphetamine and other indications of drug trafficking regardless of how or when the witness was produced. Stobaugh elected to continue with the hearing.

After the presentation of evidence supporting the application of the § 2K2.1(c) cross-reference, the district court decided to follow the recommendation of the PSR. With a resulting total offense level of 25 and a criminal history category of VI, Stobaugh was sentenced to 110 months' imprisonment, the low end of the applicable guidelines range. On appeal, Stobaugh argues that the presentation of evidence supporting the § 2K2.1(c) cross-reference breached his plea agreement and that the breach entitles him to resentencing before a different district court judge. Stobaugh also contends that the district court erred in calculating his criminal history points and in applying the cross-reference. Finally, Stobaugh argues that he should be resentenced in light of Booker.

II. Discussion

A. Breach of the Plea Agreement

Stobaugh contends that the presentation of evidence supporting the § 2K2.1(c) cross-reference offense level of 28, rather than the § 2K2.1(a) base offense level of 14, breached his plea agreement. We disagree.

We review issues pertaining to the interpretation and enforcement of a plea agreement de novo. United States v. Has No Horses, 261 F.3d 744, 750 (8th Cir.2001). "Plea agreements are contractual in nature, and should be interpreted according to general contract principles." United States v. DeWitt, 366 F.3d 667, 669 (8th Cir.2004). "[W]here a plea agreement is ambiguous, the ambiguities are construed against the government." United States v. Andis, 333 F.3d 886, 890 (8th Cir.2003) (en banc) (quoting Margalli-Olvera v. INS, 43 F.3d 345, 353 (8th Cir.1995)). Any promise made by the Government that constitutes a significant part of the defendant's inducement or consideration for making the plea agreement must be fulfilled to satisfy due process. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir.1996).

Stobaugh argues that our decision in DeWitt compels us to find a breach in this case. In DeWitt, the Government and the defendant stipulated to a specific drug quantity in the plea agreement, indicating their agreement to hold the defendant responsible only for that amount. 366 F.3d at 668-70. We held that the Government breached the plea agreement when it initiated the presentation of evidence for the purpose of attributing to the defendant a greater drug quantity. Id. Although the plea agreement entitled the government to offer evidence of uncharged relevant conduct we held that such a general provision could not be read to override the specific provision to recommend only a...