Appeal from United States District Court for the Western District of Arkansas
The opinion of the court was delivered by: Benton, Circuit Judge.
Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
Jesus Lara pled guilty to distribution of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). The district court sentenced him to 130 months' imprisonment. Lara appeals his sentence, arguing that the government breached his plea agreement at the sentencing hearing. Having jurisdiction under 28 U.S.C. § 1291, this court vacates and remands for resentencing.
Lara entered into a plea agreement with the government that contained a stipulation on the drug quantity:
10. The United States and the defendant agree that the most readily provable amount of drugs for which the defendant should be held accountable is at least 20 grams of methamphetamine, but less than 35 grams of methamphetamine. Pursuant to U.S.S.G. § 2D1.1, this quantity of drugs equates to a gross base offense level of 28 on guidelines.
The presentence report (PSR) stated that Lara's total amount to be considered for guideline purposes was 322.30 grams of meth. At sentencing, the government presented witnesses and introduced evidence of other, uncharged criminal conduct in the case, including Lara's involvement in several controlled buys of meth. The district court found Lara responsible for the PSR's quantity, resulting in an increased offense level and sentencing range.
On appeal, Lara argues that the government breached paragraph 10 when at sentencing, it introduced evidence of specific amounts and specific transactions supporting the PSR's quantity. To preserve this claim, Lara must have objected at sentencing to the drug quantity evidence as breaching the agreement. United States v. Smith, 590 F.3d 570, 576-77 (8th Cir. 2009), citing Puckett v. United States, 556 U.S. 129, 134-36 (2009). Although he generally objected to the evidence of the PSR's meth amount, he did not assert that the government violated the plea agreement. Because his claim was not properly preserved for appeal, it is reviewed for plain error. See id.
Under plain-error review, this court can correct an error not raised at trial if there is (1) error, (2) that is plain, and (3) that affects substantial rights. United States v. Lovelace, 565 F.3d 1080, 1087 (8th Cir. 2009), quoting United States v. Keller, 413 F.3d 706, 710 (8th Cir. 2005). If all three conditions are met, this court may remedy the error only if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.
Interpretation and enforcement of plea agreements is reviewed de novo. United States v. Stobaugh, 420 F.3d 796, 800 (8th Cir. 2005). Plea agreements are essentially contracts between the government and the defendant. 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." Stobaugh, 420 F.3d at 800, quoting United States v. Andis,333 F.3d 886, 890 (8th Cir. 2003) (en banc) (alteration in original).
This court must first determine whether there was an error -- here, whether the district court should have allowed the government to present evidence of the PSR's quantity. The government argues that it did not breach the plea agreement, because the stipulation to drug quantity and offense level in paragraph 10 was only an estimate, citing the Stobaugh case.The Stobaugh court found no breach where the parties agreed that the guidelines calculations were only estimates, and a separate paragraph of the plea agreement stated the government would provide "the entirety of the defendant's criminal activities" to the district court. Id.; see also United States v. Peck, 496 F.3d 885, 890 (8th Cir. 2007) (no breach when the plea agreement did not address the guidelines calculations). Here, paragraph 10 stipulated a specific offense level and a specific range of meth -- not estimates. Unlike the agreement in Stobaugh, paragraph 10 prevented the government from advocating an amount or offense level higher than that in paragraph 10.
The government invokes other provisions in the plea agreement addressing what the government can do at sentencing. Because the parties agree that this case is controlled by DeWitt and Stobaugh, we analyze the plea agreement here by comparing it to the agreements in those cases. The government first points to paragraph 15, which states that (1) the agreement does not promise a specific sentence, (2) any discussion of a possible guideline range does not bind the court, and (3) his actual range may be greater than contemplated by the parties. The plea agreement in DeWitt contained such a general provision, but it did not override the specific stipulation to drug quantity and base offense level. DeWitt, 366 F.3d at 668-70.
The government also relies on ...