(U.S.S.G. §6B1.4) (see also §165)
7th Circuit holds stipulations were sufficient to support multi-count adjustment. (470)(795) Defendant pled guilty to three bank robberies, and signed a stipulation acknowledging his confession to four uncharged robberies. At sentencing, the district court separately calculated the offense levels for all seven bank robberies, see U.S.S.G. § 1B1.2(c), and then applied a multiple-count adjustment under § 3D1.4. Defendant argued on appeal that the district court erred by including the four uncharged robberies when applying the multiple-count adjustment of § 3D1.4. He denied stipulating that he committed those robberies and argued that, instead, he stipulated only to confessing that he committed those offenses. The Seventh Circuit found no error. Defendant could “not disavow his stipulations by quibbling over semantics.” To establish a factual basis for his guilty pleas, defendant stipulated to the facts underlying the three charged robberies. At the same time, he stipulated that the government could prove beyond a reasonable doubt that he had “admitted [to] robbing” the four other banks and that “the FBI has confirmed that [he] robbed” those other banks. This stipulation was sufficiently specific to establish defendant’s commission of the four uncharged robberies, and thus for the court to include those robberies when applying the multiple-count adjustment. U.S. v. Kieffer, __ F.3d __ (7th Cir. July 27, 2015) No. 14-2652.
Supreme Court declines to decide what is a “stipulation,” noting that Commission has power to amend the guidelines retroactively. (795) The Supreme Court declined to resolve the conflict in the circuits over whether the defendant’s mere assent to a set of facts can constitute a “stipulation” under § 1B1.2(a), noting that the Sentencing Commission has “already undertaken a proceeding that will eliminate circuit conflict” on that question. The court noted that Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect. 28 U.S.C. § 994(u). This power has been implemented in guideline § 1B1.10, which sets forth the amendments that justify sentence reduction. Braxton v. U.S., 500 U.S. 344, 111 S.Ct. 1854 (1991).
1st Circuit upholds leadership increase despite court’s failure to specifically identify persons led. (795) Defendant argued that the evidence did not support a finding that he was an organizer, leader, manager or supervisor of others in the offense. The First Circuit upheld the enhancement, even though the district court did not make a specific finding identifying one or more persons whom defendant organized or led. The PSR stated that defendant used two or three individuals to sell his crack cocaine, and that fact was included in the government’s recitation at the change-of-plea hearing of the facts it would prove if the case went to trial. Defendant indicated his agreement with the government’s version of the facts. U.S. v. Zayas, 568 F.3d 43 (1st Cir. 2009).
2nd Circuit holds that district court properly relied on plea agreement stipulation to determine loss. (795) Defendant was involved in a scheme to defraud a jeweler by purchasing jewelry with a counterfeit certified bank check. Defendant argued that the district court erred in calculating the loss amount using a co-conspirator’s estimate of the jewelry’s $590,000 “cost,” rather than the co-conspirators’ estimate of what they would have to pay for the jewelry. The Second Circuit held that the court properly relied on defendant’s stipulation in his plea agreement to calculate loss. Under circuit precedent, a stipulation in a plea agreement, although not binding, may be relied upon in finding facts relevant to sentencing. Because defendant’s loss amount stipulation was knowing and voluntary, the district court could have properly found loss amount based solely on the stipulation, as long as it also considered any other relevant information presented to it. There was ample evidence in the record supporting a loss finding of between $500,000 and $800,000. U.S. v. Granik, 386 F.3d 404 (2d Cir. 2004).
2nd Circuit finds no Apprendi violation where defendants stipulated to drug quantity. (795) The Second Circuit found it unnecessary to determine whether Apprendi v. New Jersey, 530 U.S. 466 (2000) requires drug quantity to be found by a jury in order to sentence a defendant under any provision other than § 841(b)(1). At trial, the parties entered stipulations regarding the type and quantity of drugs involved in the three charged transactions. One transaction involved well over the five-gram minimum required for sentencing under § 841(b)(1)(B). Because defendant entered into this stipulation, and did not object to the failure of the court to include drug quantity as an element of the offense in its charge to the jury, any error was harmless. U.S. v. White, 240 F.3d 127 (2d Cir. 2001).
2nd Circuit directs court to examine whether defendant knowingly waived right to appeal. (795) After conviction, defendant entered into a stipulation regarding a number of sentencing issues. The stipulation stated that neither party would appeal a sentence that fell within the sentencing range calculated in the stipulation. At sentencing, the court did not ask defendant whether he had read, understood, signed or agreed to the stipulation. It imposed a sentence that fell within the range contained in the stipulation. Defendant then attempted to appeal a sentencing issue. The Second Circuit remanded for a determination of whether defendant had knowingly stipulated to waive his right to appeal. If defendant knowingly and voluntarily agreed to the stipulation, then the waiver was valid. However, the record on appeal gave no basis for determining whether defendant had knowingly agreed to the stipulation or the waiver of appeal in it. The district court never inquired whether defendant agreed to, or even knew the contents of, the stipulation. U.S. v. Stevens, 66 F.3d 431 (2d Cir. 1995).
2nd Circuit affirms including two kilograms under negotiation despite contrary stipulation. (795) The government stipulated that between 2 and 3.4 kilograms of cocaine were involved. The stipulation further stated that two additional kilograms were under negotiation and paid for when defendant was arrested. The district court added the two kilograms to the stipulated quantity, and found defendant accountable for over five kilograms of cocaine. The 2nd Circuit affirmed. The commentary to guideline section 6B1.4 states that a stipulation must fully and accurately disclose all factors relevant to a determination of sentence. The inaccurate statement here did not prejudice defendant, however. The agreement did not purport to guarantee a sentencing range based on 2 to 3.4 kilograms. Before accepting the plea, the judge took great pains to inform defendant that it would not be bound by the stipulation. The judge was thus free, and in fact obligated, to consider the additional two kilograms under negotiation when defendant was arrested. U.S. v. Telesco, 962 F.2d 165 (2nd Cir. 1992).
2nd Circuit holds that five kilogram base level was established by defendant’s guilty plea. (795) Defendant pled guilty to one count of distributing in excess of one kilo of cocaine and one count of conspiracy to distribute five kilos of cocaine. The district court used a base offense level involving in excess of five kilos at sentencing. However, at the trial of co-defendants the jury rendered an advisory opinion that less than five kilos were involved. The 2nd Circuit held the advisory opinion irrelevant to defendant since he admitted conspiracy to distribute in excess of five kilos in his guilty plea. Absent an allegation that the plea was not knowingly or voluntarily made, the guilty plea waives all nonjurisdictional challenges. U.S. v. Rios, 893 F.2d 479 (2nd Cir. 1990).
2nd Circuit holds that attorney’s mistaken estimate as to guideline sentence is not grounds for withdrawal of guilty plea. (795) Defendant argued that his defense attorney’s mistaken calculation of his guidelines range constituted ineffective assistance of counsel, and therefor the district court should have set aside his guilty plea. The 2nd Circuit disagreed. The defendant was fully aware of the maximum terms of imprisonment and was told the trial court has sole discretion in sentencing. Furthermore, his attorney stated in open court that he had advised the defendant of his “best guess” as to the range. Because the defendant voluntarily pled guilty knowing that no promises had been made regarding his sentence, the trial court’s denial of his Rule 32(d) motion was proper. Mistaken estimates in the new and evolving area of guideline sentencing will not ordinarily justify setting aside an otherwise knowledgeable voluntary plea. U.S. v. Sweeney, 878 F.2d 68 (2nd Cir. 1989).
2nd Circuit holds judge may look beyond charged offense to “actual facts” in determining sentence under guidelines. (795) The Second Circuit held that “[a]lthough the guidelines basically adopt a charge-offense method, they contain sufficient elements of the real-offense method to allow the district court in this case to look to the actual facts in determining sentence.” Guidelines § 1B1.2 instructs the court to sentence under the guidelines applicable to the facts stipulated in a guilty plea if the stipulation establishes a more serious offense than the offense of conviction. There were no stipulated facts here, but the Second Circuit nevertheless relied on the fact that defendant never disputed the government’s statement as to the amount of cocaine involved. Thus, even though defendant pleaded to a telephone count, the sentencing judge properly departed from the guidelines based on the 20 kilos of cocaine found in the defendant’s possession. U.S. v. Correa-Vargas, 860 F.2d 35 (2nd Cir. 1988).
3rd Circuit holds that statements made during plea colloquy were not stipulations. (795) Defendants’ plea agreement with the government contained a number of stipulations, including that the applicable guideline was § 2T3.1, the smuggling guideline. However, the district court sentenced defendants under the more severe fraud guideline, ruling that statements they made during the “factual basis” inquiry at their plea hearing were stipulations sufficient to establish fraud. After reviewing the text of § 1B1.2(a), particularly in light of changes the Sentencing Commission made from an earlier version of that section, the Third Circuit held that a statement is a “stipulation” only if: (1) it is part of a defendant’s written plea agreement; (2) it is explicitly annexed to the plea agreement; or (3) both the government and the defendant explicitly agree at a factual basis hearing that the facts being put on the record are stipulations that might subject a defendant to the provisions of § 1B1.2(a). Defendants’ statements here did not meet this definition and therefore, the court erred as a matter of law by treating them as stipulations. U.S. v. Nathan, 188 F.3d 190 (3d Cir. 1999).
3rd Circuit finds government violated plea agreement by recommending sentence at high end of range. (795) In defendant’s plea agreement, the government promised that it would make whatever sentencing recommendation it deemed appropriate within the stipulated guideline range of 41-51 months. The district court determined that the applicable range was actually 63-78 months. At sentencing, the government said that because defendant’s actions were egregious, the court should sentence defendant at the higher end of the guidelines. When defense counsel protested that this violated the plea agreement, the government changed its position and said it was arguing for the higher end of the stipulated guideline range. The court then said it would give no weight to the government’s recommendation. The Third Circuit agreed that the government breached the plea agreement. Once the court determined that the low end of the applicable range was 63 months, the government should have said nothing further. The government’s comments could only be interpreted as an attempt to influence the court to impose a longer sentence than stipulated to in the plea agreement. U.S. v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998).
3rd Circuit says stipulation barred challenge to sophisticated means increase. (795) Defendant, the general manager of a consumer electronics manufacturer, embezzled money and took kickbacks in a complicated scheme using a distribution company that defendant and his co-conspirators had secretly purchased. He pled guilty to failing to report the illicit income on his tax returns. He argued that a § 2T1.1(b)(2) sophisticated means enhancement was improperly based on the embezzlement scheme rather than the tax evasion offense of conviction. The Third Circuit held that defendant could not challenge the sophisticated means enhancement because he had stipulated to it in his plea agreement. Moreover, there was adequate support for the court’s finding that defendant used sophisticated means to conceal his tax evasion offense from the IRS. He established an elaborate scheme that involved the use of a shell corporation, falsified documents, and unrecorded cash payments. Although these methods concealed the embezzlement, they also facilitated concealment of the defendant’s income. U.S. v. Cianci, 154 F.3d 106 (3d Cir. 1998).
3rd Circuit says court’s refusal to allow six months to pay fine did not mandate plea withdrawal. (795) Defendant corporation’s plea agreement contained a stipulation that $140,000 was an appropriate fine and that the fine should be paid no later than six months after sentencing. Defendant argued that the six-month provision for payment of the fine was part of a specific recommended sentence, and the district court’s failure to give defendant six months to pay the ordered fine required that it be given the opportunity to withdraw its plea. The Third Circuit held that the court’s refusal to provide six months for paying the fine did not mandate plea withdrawal. The plea agreement also stated that its stipulations were not binding on the court. Also, the district court advised defendant that if the penalty imposed was more severe than anticipated by defendant, the plea could not be withdrawn. U.S. v. Electrodyne Systems Corporation, 147 F.3d 250 (3d Cir. 1998).
3rd Circuit rejects “cheap price” departure because defendant stipulated to drug quantity. (795) Defendant argued that a downward departure was required under note 17 to § 2D1.1, because the government’s confidential informant offered to sell him cocaine at price substantially below market price, thereby leading him to purchase significantly more than he would otherwise have been able to purchase. He maintained that his $12,500 would have purchased less than a kilogram of cocaine on the open market, instead of the more than 50 kilograms attributed to him by the district court. The Third Circuit found no error since defendant stipulated in his plea agreement that he was responsible for between 50 and 150 kilograms of cocaine. U.S. v. Melendez, 55 F.3d 130 (3d Cir. 1995), aff’d on other grounds, Melendez v. U.S., 518 U.S. 120, 116 S.Ct. 2057 (1996).
3rd Circuit reverses failure to use loss amount stipulated by parties in plea agreement. (795) The district court adopted the presentence report’s conclusion that the losses caused by defendant’s consumer fraud scheme exceeded $20 million. The 3rd Circuit held that it was error for the district court to overlook the parties’ stipulation, which the court accepted, that the amount of consumer fraud was between $10 million and $20 million. ), superseded by guideline on other grounds as state in U.S. v. Corrado, 53 F.3d 620 (3d cir. 1995).
3rd Circuit remands case to determine whether government was released from stipulation. (795) In defendant’s plea agreement, the government agreed to stipulate at sentencing that defendant had accepted responsibility, provided the government did not receive additional evidence in conflict with this stipulation. At sentencing, the government argued that defendant had not accepted responsibility. The district court found that defendant had not accepted responsibility, but made no finding as to whether the government remained bound by its stipulation. The 3rd Circuit remanded, holding that the government could withdraw from the stipulation only upon a showing that would trigger the proviso, and the district court made no finding as to that. Even though the district court would not have been bound by the government’s stipulation, the government had to keep its bargain. The sentence was vacated so that a hearing could be held to determine whether the government carried its burden of showing that the terms of the proviso had been satisfied. U.S. v. Trujillo, 920 F.2d 202 (3rd Cir. 1990).
4th Circuit holds that defendant was bound by amount of tax loss stipulated in plea agreement. (795) Defendant pled guilty to five counts of tax evasion. He argued that the actual tax revenue loss caused by his failure to pay corporate income taxes was significantly less than the $2.4 million stated in the parties’ plea agreement, and that the court erred in refusing to consider this alleged discrepancy at sentencing. The Fourth Circuit ruled that the district court did not err in holding that defendant was bound by the tax revenue loss figure to which he stipulated in the plea agreement. Absent a successful withdrawal from a plea agreement or other very exceptional circumstances, a defendant remains bound by the factual stipulations in his plea agreement once the plea has been accepted by the district court. Defendant’s attempts to argue that the tax revenue loss was materially less than $2.4 million constituted a “unilateral reneging” on the basis of “uninduced mistake or change of mind,” and the district court was well within its discretionary authority to hold defendant to the loss amount stipulated in the plea agreement. U.S. v. Yooho Weon, 722 F.3d 583 (4th Cir. 2013).
4th Circuit remands where defendant mistakenly agreed to mandatory minimum. (795) In his plea agreement, defendant stipulated that he distributed 85 kilos of marijuana in a conspiracy involving 117 kilos, and that another 79 kilos of marijuana from a different conspiracy could be treated as relevant conduct under the guidelines. Both the government and defendant mistakenly believed that the other 79 kilos could be treated as relevant conduct in applying the five-year mandatory minimum, so defendant acknowledged in the plea agreement that he was subject to a mandatory minimum five-year sentence. At sentencing, the parties realized that only the drugs involved in the offense of conviction could be considered. However, the district court applied the mandatory minimum because defendant agreed in the plea agreement that he foresaw that his conspiracy involved 117 kilograms. The Fourth Circuit disagreed and remanded for resentencing. Defendant did not implicitly admit his culpability for over 100 kilograms of marijuana when he acknowledged that he was subject to the mandatory minimum. U.S. v. Estrada, 42 F.3d 228 (4th Cir. 1994).
5th Circuit refuses to reduce crack sentence below minimum stipulated in plea agreement. (795) Defendant pled guilty to crack charges. The district court accepted the plea agreement, which provided for a minimum prison term of 240 months. After calculating defendant’s guideline range, the court sentenced him to 262 months. Defendant later moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on the recent crack sentencing amendments. The district court granted the motion and resentenced defendant to 240 months, the minimum stipulated to in the plea agreement. Defendant argued on appeal that the court erred in holding that the plea agreement prevented further reduction. The Fifth Circuit disagreed. The district court sentenced defendant “based on” the Sentencing Guidelines, just as the plea agreement provided. However, the parties stipulated to a minimum sentencing range irrespective of the Guidelines. When the Guidelines for crack offenses changed, bringing down the high end of defendant’s range, his negotiated minimum stayed put. By modifying the sentence to 240 months, the district court gave defendant the biggest reduction for which he was eligible. U.S. v. Garcia, 606 F.3d 209 (5th Cir. 2010).
5th Circuit rejects guideline for consensual sexual abuse of ward where defendant stipulated force was used. (795) Defendant, the warden of a jail, raped an inmate and then lied to investigators about the incident. He pled guilty to violating the inmate’s civil rights and making a false official statement. Although the PSR recommended sentencing under § 2A3.1 (criminal sexual abuse), the district court sentenced defendant using § 2A3.3, which normally is applied to consensual criminal sexual abuse of a ward. The court thought that § 2A3.1 was unduly harsh because the civil rights count was only a misdemeanor that had a maximum penalty of one year and the other count was a collateral offense. The Fifth Circuit ruled that the court should have used § 2A3.1 rather than § 2A3.3. The crime’s classification as a misdemeanor with a one-year sentence was irrelevant. When a defendant is sentenced on multiple counts under a single indictment, the court uses the combined offense level. The total punishment can be more than the maximum statutory penalty for any particular offense. Looking to the underlying offense to which the defendant stipulated, defendant’s offense was analogous to a violation of § 2241, the forcible rape statute, because he used actual force against his victim. He also caused the victim to engage in a sexual act by placing her in fear within the meaning of § 2242 because of his power over her. U.S. v. Lucas, 157 F.3d 998 (5th Cir. 1998).
5th Circuit says agreement to stipulate drug quantity was not ineffective assistance. (795) Defendant and his co-defendant sold methamphetamine to undercover agents. The PSR recommended also holding him accountable for 11 gallons of phenylacetone found in a storage unit rented by his co-defendant. This resulted in a guideline range of 235-293 months. Before sentencing, the government offered not to use the phenylacetone at sentencing if defendant stipulated to the amount of methamphetamine involved. Defendant agreed. This resulted in a guideline range of 121-151 months. In a § 2255 motion, defendant claimed the amount of methamphetamine used in sentencing was incorrect and not supported by the lab reports. He contended his agreement was the result of ineffective assistance. The Fifth Circuit held that defense counsel’s stipulation was reasonable, given the difference in sentence if the phenylacetone had been considered at sentencing. Moreover, defendant was unable to show that he suffered any prejudice considering the relevant conduct eliminated by the stipulation. U.S. v. Walker, 68 F.3d 931 (5th Cir. 1995).
5th Circuit holds that court need not accept, for sentencing purposes, stipulation as to amount of drugs involved. (795) Pursuant to a plea agreement, defendant and the government stipulated that the total amount of amphetamines involved in conspiracy was 440 grams. The district court declined to accept the stipulation, and sentenced defendant on the basis of additional drugs found on defendant’s person at his arrest and in his laboratory. The 5th Circuit, following its previous decision in U.S. v. Garcia, 902 F.2d 324 (5th Cir. 1990), held that a district court is not bound by the amounts charged in the indictment or stipulated by the parties at the time of the guilty plea. The court also held that matters relevant to sentencing need be shown only by a preponderance of the evidence. U.S. v. Woods, 907 F.2d 1540 (5th Cir. 1990).
5th Circuit permits sentencing court to disregard stipulated facts at sentencing if other information surfaces. (795) Pursuant to a plea agreement, the parties stipulated that defendant had distributed 25 kilos of cocaine. However, at sentencing, the district court accepted the probation officer’s report that defendant engaged in distribution of 275 kilos. Defendant appealed, claiming the court was bound by the stipulation, which the court had accepted when it accepted the plea. The 5th Circuit disagreed, holding that the Commentary to guideline § 6B1.4(d) provides that a district court can consider facts other than those stipulated to in arriving at relevant sentencing information. U.S. v. Garcia, 902 F.2d 324 (5th Cir. 1990).
5th Circuit holds court must sentence for stipulated offense if it is properly shown to exist. (795) Defendant pled guilty to a “telephone count” in violation of 21 U.S.C. § 843(b) while stipulating that he had met an undercover agent selling five pounds of methamphetamine for the purpose of distributing drugs. The district court sentenced the defendant to five years probation and the government appealed, arguing that because defendant stipulated to a more serious offense he should have received the statutory maximum for that offense, four years. The Fifth Circuit agreed, holding that the court should have made a finding as to whether the stipulated facts established that defendant committed the more serious offense. In deciding whether the stipulation established the more serious offense the court must follow standards implicit in Fed. R. Crim. P. 11(f) and satisfy itself that a factual basis for each element of the crime exists. If the court finds that a more serious offense is not established, it shall apply the guidelines for the offense of conviction. If the serious offense is established, the court shall apply the guidelines for the more serious offense, limited to the statutory maximum sentence for the offense of conviction. U.S. v. Martin, 893 F.2d 73 (5th Cir. 1990).
5th Circuit holds that stipulation established more serious offense than count of conviction. (795) U.S.S.G. § 1B1.2 provides that where a stipulation establishes “a more serious offense than the offense of conviction, the court shall apply the guideline most applicable to the stipulated offense.” Here the defendant pled to a telephone count but stipulated to possessing 130 grams of heroin. The 5th Circuit held that her guideline offense level was properly based on the stipulated offense of possession of heroin, so long as the sentence did not exceed the maximum for the offense of conviction. Nor did this violate due process. U.S. v. Strong, 891 F.2d 82 (5th Cir. 1989).
5th Circuit rules that incorrect application of guidelines which results in sentence within appropriate range need not be vacated. (795) Defendant pled guilty to using a telephone to facilitate a drug offense, but stipulated to facts which showed that he possessed over 500 pounds of marijuana with intent to distribute. The district court departed from the telephone count because it felt that it did not adequately represent the severity of the offense. The 5th Circuit affirmed the sentence even though it found that the guidelines were incorrectly applied. When a defendant stipulates to facts which establish an offense more serious than that of the offense of conviction, § 1B1.2, commentary 1 requires that the court sentence as if the stipulated facts were the offense of conviction. However, this case need not be remanded for resentencing because the sentence actually imposed would have been within the proper range had the guidelines been correctly applied. U.S. v. Garza, 884 F.2d 181 (5th Cir. 1989).
5th and 8th Circuits hold stipulation to acceptance of responsibility did not bind sentencing court. (795) The question of whether a defendant is entitled to a two point reduction in offense level for acceptance of responsibility is essentially a factual one, subject to review for clear error under guideline § 3E1.1. Given the sentencing judge’s wide latitude in assessing credibility on this point (Application note 5), that judgment “will seldom fall to a clearly erroneous challenge.” In these two cases the defendants failed to convince the judges of their sincerity. A stipulation to that effect is not enough by itself to benefit the defendant. U.S. v. Barreto, 871 F.2d 511 (5th Cir. 1989); U.S. v. Nunley, 873 F.2d 182 (8th Cir. 1989).
6th Circuit upholds refusal to reduce stipulated tax loss. (795) Defendant, an accountant, transferred clients’ money into his personal and business accounts without their knowledge. He failed to report the money as income on his tax returns and pled guilty to filing a false tax return. Although he stipulated in his plea agreement that his conduct caused a loss exceeding $70,000, he argued on appeal that the actual loss was only $68,000. The argument was based on amended tax returns that claimed deductions for certain farm losses that defendant did not claim in his original returns. The Sixth Circuit upheld the judge’s refusal to reduce the stipulated tax loss by the amount of defendant’s alleged farm losses. There was a factual basis for the stipulated amount. Although the prosecution provided defendant with the documents it used to compute the tax loss more than seven months before sentencing, defendant waited until the day of sentencing to submit amended returns reflecting the alleged farm losses. Section 2T1.3 bases a sentence on the “magnitude of the false statements,” not necessarily the net of concealed income less unclaimed deductions. This guideline formula placed the tax loss in the $70,000-$120,000 range. U.S. v. Parrott, 148 F.3d 629 (6th Cir. 1998).
6th Circuit holds that defendant waived right to appeal stipulated restitution. (795) In her plea agreement, defendant acknowledged that the court could order restitution of up to $454,477.82. The PSR also stated that restitution was applicable. Although it stated that she was probably unable to pay a fine, it did not make such a statement about restitution. Defendant never objected to the report, never argued in opposition to restitution, and never objected after the court announced restitution at sentencing. Moreover, defendant agreed not to appeal any matter stipulated to by the parties. The Sixth Circuit held that under these circumstances, defendant had waived her right to challenge the restitution order. U.S. v. Allison, 59 F.3d 43 (6th Cir. 1995).
6th Circuit holds that defendant waived right to appeal abuse of trust enhancement. (795) Defendant was a cashier for an insurance company. She altered the names of payees on company checks after they were signed by a company executive, inserted her own name or the names of her creditors as the new payees, and when the canceled checks were returned from the bank, she changed the names back to the proper payees. In her plea agreement, she stipulated to an abuse of trust enhancement. She also agreed as part of her plea agreement not to appeal the accuracy of any factor stipulated to by the parties. The Sixth Circuit held that defendant waived her right to appeal the abuse of trust enhancement because she had stipulated to it. Moreover, defendant earned the enhancement on the merits. She was the last insurance company employee to handle the checks after they were signed, the first employee to examine the canceled checks after the bank returned them to the company, and the person responsible for reconciling the company’s checking account. It was highly unlikely that anyone else in the company could have committed and concealed this crime. U.S. v. Allison, 59 F.3d 43 (6th Cir. 1995).
6th Circuit upholds consideration of uncharged frauds in determining loss. (795) Defendant was part of a multi-state check writing conspiracy; however, his indictment only charged him with his activities in Iowa. Nonetheless, the 6th Circuit held that it was proper to include the uncharged acts in the amount of loss under §2F1.1(b)(1). The activities occurring in the other states were part of the same course of conduct as the Iowa scheme. Although the plea agreement stated that the relevant conduct was limited to the defendant’s Iowa activities, a plea agreement entered into between the government and the defendant is not binding on the court. U.S. v. Velez, 1 F.3d 386 (6th Cir. 1993).
6th Circuit upholds defendant’s minor role despite stipulation to the contrary in plea agreement. (795) A bank officer, through his sister, solicited defendant’s help in embezzling funds from the bank. Defendant, in turn, recruited the help of two others who established a bank account to funnel the funds back to the officer. At defendant’s direction, the two also set up a phony company and bank account, purchased $100,000 in gold coins, and delivered to the bank officer a number of signed blank checks for his use. Nonetheless, and despite a stipulation to the contrary, the 6th Circuit upheld the district court’s finding that defendant and the bank officer’s sister both had minor roles in the offense. They both recruited someone else to carry through the offense, both committed wire fraud to relay messages, and both expected compensation for their services. The two who did most of the work could be considered more culpable than defendant since their participation was greater than his. U.S. v. Ivery, 999 F.2d 1043 (6th Cir. 1993).
7th Circuit rules defendant waived challenge to court’s reliance on stipulated facts. (795) For nearly 10 years, defendant operated a pyramid investment scheme, and defrauded at least 60 investors of $4.5 million. In a written plea agreement, defendant stipulated that his offense warranted a four-level adjustment under § 2B1.1(b)(2)(B) because the offense involved more than 50 victims who sustained an actual loss. On appeal, defendant argued that the enhancement should not have applied to him because the court mistakenly counted investors who had not actually suffered a loss. He contended that, at most, the government could prove only 45 victims. The Seventh Circuit ruled that defendant waived this challenge He did not merely fail to object to the PSR; he stipulated in his written plea agreement to defrauding more than 50 victims, and concurred at his sentencing hearing that the adjustment applied. A defendant who stipulates to facts as part of a written plea agreement also waives challenges to the district court’s reliance on those facts. U.S. v. Scott, 657 F.3d 639 (7th Cir. 2011).
7th Circuit says court can disregard post-trial factual stipulation of drug quantity, but not here. (795) The district court found, for sentencing purposes, that defendant’s drug conspiracy involved 40 kilograms of cocaine. Defendant argued that the district court improperly rejected a stipulation by the parties that the conspiracy involved five-to-15 kilograms of cocaine. The Seventh Circuit held, as a matter of first impression, that a district court may disregard a post-trial factual stipulation between the defendant and the government regarding the amount of drugs for sentencing purposes. Post-trial drug quantity stipulations should be treated the same as other stipulations of fact, and thus fact-finders have the same authority to accept or reject the stipulation. Here, however, the district court clearly erred when it rejected the stipulation. On the same factual record, the court accepted an identical stipulation between the government and several co-defendants without explaining why it was treating defendant differently. In fact, the court stated that defendant was “similarly situated with regard to the amount of drugs that were involved in the conspiracy.” U.S. v. Barnes, 602 F.3d 790 (7th Cir. 2010).
7th Circuit counts victims of stipulated offense in total number of victims. (795) Defendant pled guilty to 20 counts arising out of a fraudulent scheme (the Bank Watch case) and he stipulated to offenses arising out of another scheme (the Receiver case). The district court applied an increase under § 2B1.1(b)(2)(C) for an offense involving 250 or more victims. The Seventh Circuit affirmed, holding that the district court did not err in counting the 212 victims of the stipulated Receiver case in the total number of victims. Under the Guidelines, stipulated offenses are treated as offenses of conviction and are properly included in the offense level calculation. The evidence, including a judgment and commitment order entered against a co-conspirator, and defendant’s own statements, supported the court’s finding that there were 212 Receiver victims. U.S. v. Panice, 598 F.3d 426 (7th Cir. 2010).
7th Circuit holds .defendant who stipulated to loss amount waived challenge. (795) Defendant argued that the court improperly calculated the loss amount. However, at sentencing, defendant stipulated to the loss figure of $19,654.60. The Seventh Circuit held that defendant’s challenge was precluded by his stipulation as to the loss amount. He effectively admitted the fact that the loss was $19,654.60, and waived any subsequent challenge to this fact. U.S. v. Sloan, 492 F.3d 884 (7th Cir. 2007).
7th Circuit says court was not required to engage in colloquy before relying on stipulation. (795) Defendant argued that U.S. v. Garrett, 189 F.3d 610 (7th Cir. 1999) requires a sentencing court to specifically find that a stipulation was knowing and voluntary before relying on it to conclude that a substance was crack. Because the stipulation relied on his stipulation without specifically finding that it was knowing and voluntary, defendant argued that his guideline range should have been calculated using the lower base offense level for powder cocaine. The Seventh Circuit disagreed. Garrett does not require a sentencing court to engage in a colloquy with a defendant before relying on a stipulation – defendants regularly stipulate to facts at trial that will increase their sentence if they are found guilty. Garrett does not create a special rule for stipulations concerning crack. Garrett vacated a crack sentence because of uncertainty in the state of the law as to the meaning of the term “ cocaine base” made it impossible to determine the stipulation’s meaning. However, defendant here entered the challenged stipulation six years after the law became clear that cocaine base refers to “crack.” Although the language of the two stipulations was virtually identical, defendant could not have misunderstood its legal effect. U.S. v. Johnson, 396 F.3d 902 (7th Cir. 2005).
7th Circuit holds stipulation means any acknowledgment by defendant of more serious conduct. (795) Defendants were arrested after a fire broke out in the apartment in which they manufactured methamphetamine. Although they pled guilty to drug charges normally sentenced under § 2D1.1, the court applied § 2D1.10, the guideline for endangering human life while manufacturing a controlled substance. Section 1B1.2(a) says that if a plea agreement, either written or oral, contains a stipulation that specifically establishes a more serious offense than the offense of conviction, the court should use the guideline for the stipulated offense. The Seventh Circuit ruled that a “stipulation” means any acknowledgment by the defendant that he committed the more serious offense. This allows a judge to move from one guideline to another without making an ad hoc departure. A defendant’s protection from undue severity lies not in reading “stipulation” as requiring a formal agreement, but in taking seriously the requirement that the more serious offense be established “specifically.” Here, during the Rule 11 colloquy, defendants admitted that the fire in their apartment endangered the lives of persons in other apartments. This was sufficient to allow the use of § 2D1.10. U.S. v. Loos, 165 F.3d 504 (7th Cir. 1998).
7th Circuit adds criminal history points for probation where defendant stipulated when conspiracy began. (795) Defendant pled guilty to conspiring to commit theft from a program receiving federal funds. Under his plea agreement, he stipulated to certain facts relating to the crime. He later attempted to contest many of the facts to which he had stipulated, but the government resolved these disputes against him. The district court added three criminal history points under § 4A1.1(d) & (e) because defendant committed the offense while on probation and within two years of release from a term of imprisonment. The Seventh Circuit ruled that defendant’s challenge to the criminal history points was foreclosed by his stipulations. Defendant was on probation in Louisiana in March 1990, and he stipulated in the plea agreement that the conspiracy ran from March 9, 1990 to August 31, 1991. The district court credited the stipulation, as well as an admission in an interview with FBI agents that the conspiracy operated from 1990 to 1992. No formal finding was necessary, because defendant’s stipulations constituted binding admissions. U.S. v. Newman, 148 F.3d 871 (7th Cir. 1998).
7th Circuit finds no government breach where defendant contested stipulated facts. (795) Defendant pled guilty to conspiring to commit theft from a program receiving federal funds. He signed a plea agreement in which he stipulated to the facts underlying his crime and to additional uncharged crimes. Sometime before the sentencing hearing, defendant contested many of the facts to which he had stipulated. The court rejected defendant’s objections. Defendant argued for the first time on appeal that the government breached its obligation under the plea agreement by refusing to recommend an acceptance of responsibility reduction. The Seventh Circuit found no plea breach. By challenging his stipulations in the plea agreement, defendant did not adhere to his promise to “continue to accept responsibility for his actions.” Once defendant breached, the government was no longer bound to make the recommendation for a reduction. More fundamentally, defendant’s claim lacked merit because he received an acceptance of responsibility reduction. U.S. v. Newman, 148 F.3d 871 (7th Cir. 1998).
7th Circuit holds stipulated facts in plea agreement waived any challenge to amount of loss. (795) Defendant pled guilty to conspiring to commit theft from a program receiving federal funds. He signed a plea agreement in which he stipulated to the facts underlying his crime and to additional uncharged crimes. Sometime before the sentencing hearing, defendant contested many of the facts to which he had stipulated. The court rejected defendant’s objections. On appeal, defendant attacked the factual basis of the court’s findings of the amount of loss associated with his offense. The Seventh Circuit found no error in the court’s reliance on the stipulated facts to calculate loss. Defendant stipulated to a loss amount even greater than the one used by the district court. Although defendant now claimed that his losses were lower, he waived this claim by his stipulations in the plea agreement. U.S. v. Newman, 148 F.3d 871 (7th Cir. 1998).
7th Circuit upholds role increase based on stipulated relevant conduct in plea agreement. (795) Defendant pled guilty to one count of attempting to possess with intent to distribute 72 kilograms of cocaine. He argued that in imposing a § 3B1.1 enhancement the district court erroneously considered conduct beyond what was relevant to the offense of conviction. The Seventh Circuit held that the district court properly relied on conduct that defendant stipulated to in his plea agreement. The relevant conduct defendant admitted in the plea agreement indicated that he exercised direct influence over at least two other participants. He exercised tight control over the drug couriers, directing them where and when to go, arranging for them to receive the cars they would drive, instructing them how to contact the person or persons who loaded the drugs into the secret compartments, and instructing them on the route to take. He also assisted them in obtaining false driver’s licenses. U.S. v. Flores‑Sandoval, 94 F.3d 346 (7th Cir. 1996).
7th Circuit says defendant waived challenge to drug quantity stipulated in plea agreement. (795) Defendant argued that the district court failed to determine the amount of drugs involved in his offense. The 7th Circuit found that defendant waived this challenge when he signed the plea agreement which set out the drug quantities. The sentencing range to be applied was set out in the agreement, and he was sentenced to the minimum of that range. Defendant even admitted that determining the amount of drugs would not change his guideline calculation. The district court was not required to spend time independently determining facts which would not affect the outcome of the case. U.S. v. Robinson, 14 F.3d 1200 (7th Cir. 1994).
7th Circuit holds court was not bound by stipulation that defendant was not a career offender. (795) Defendant’s plea agreement stipulated that he was not a career offender. After the probation department discovered that defendant had an additional violent felony which the plea agreement did not include, the district court sentenced him as a career offender. The 7th Circuit affirmed, holding that under section 6B1.4 the district court was not bound by the plea agreement’s stipulation. This was a not plea agreement under Fed. R. Crim. P. 11(e)(1)(C), in which the government agrees to a specific sentence, and the district court must accept or reject the plea. This was an agreement under Rule 11(e)(1)(B), which makes the government’s recommendation non-binding on the court. During the plea hearing, the district court informed defendant several times that the agreement did not limit its ability to sentence him, and advised him it could sentence him up to the statutory maximum. U.S. v. Bennett, 990 F.2d 998 (7th Cir. 1993).
7th Circuit says stipulation in plea agreement did not waive challenge to PSR. (795) Defendant challenged the PSR’s determination of drug quantity. The 7th Circuit rejected the government’s claim that defendant waived any challenge to the PSR’s allegations by stipulating to those facts in his plea agreement. Guideline section 6B1.4(d) states that a court is not bound by a stipulation of facts, but may with the aid of the presentence report, determine the facts relevant to sentencing. U.S. v. Isirov, 986 F.2d 183 (7th Cir. 1993).
8th Circuit finds defendant’s stipulation acknowledged that sentence within guideline range was reasonable. (795) Defendant was sentenced to 360 months after pleading guilty to second-degree murder. He stipulated as part of his plea agreement that his total offense level was 40, resulting in a guideline range of 292-365 months. He argued that his sentence was substantively unreasonable because it was longer than necessary under the parsimony clause of 18 U.S.C. § 3553(a). The Eighth Circuit rejected his claim. Defendant voluntarily exposed himself to a specific guidelines range. He was not permitted on appeal to challenge a sentence within that range. While defendant did not completely waive his right to appeal his sentence in the plea agreement, his stipulation to a sentence within the guidelines range was an acknowledgment that any sentence within the range was reasonable. U.S. v. Yankton, 734 F.3d 828 (8th Cir. 2013).
8th Circuit precludes defendant from challenging stipulated loss amount. (795) Defendant admitted in his plea agreement to conducting an eight-year scheme to defraud many persons by inducing them to invest more than $20 million in various projects. The district court adopted the PSR’s loss calculation of at least $25,959,781. He challenged the loss calculation on appeal, arguing that the PSR had failed to reduce the amount of loss by the fair market value of the victims’ collateral. The Eighth Circuit held that defendant waived this challenge in his plea agreement. Paragraph 5 of the agreement set forth stipulated guideline calculations for the wire fraud offense, which included a 22-level enhancement under § 2B1.1(b)(1)(L) for a loss between $20 and $50 million. Although the plea agreement was not binding on the court, the court’s authority to reject or ignore the stipulated loss calculation did not affect the principle that defendant was precluded from raising the issue on appeal. U.S. v. Krzyzaniak, 702 F.3d 1082 (8th Cir. 2013).
8th Circuit reverses for allowing evidence of drug quantity that exceeded stipulated amount. (795) Defendant pled guilty to methamphetamine charges pursuant to a plea agreement that stipulated that he was accountable for between 20 and 35 grams of methamphetamine. The PSR, however, indicated that defendant was responsible for a much larger quantity. The district court found defendant responsible for the PSR’s quantity, resulting in an increased offense level and sentencing range. The Eighth Circuit held that the court plainly erred in allowing the government to introduce evidence to raise the stipulated drug quantity. The government’s presentation of evidence to support the PSR’s drug quantity breached the plea agreement. Defendant’s substantial rights were affected because his top/bottom guidelines range was increased by 30/37 months, his 130-month sentence was outside the plea agreement’s guidelines range, and defendnat likely received a longer prison sentence because of the error. U.S. v. Lara, 690 F.3d 1079 (8th Cir. 2012) No. 11-3850.
8th Circuit finds error in applying enhancement absent stipulation to supporting facts. (795) A police officer responded to a complaint that defendant was playing loud music at his home. The officer knocked on defendant’s door and identified himself three times; each time, defendant told the officer to go away. After the third time the officer knocked, defendant fired two shots through the door. Police officers later arrested defendant, and he pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). The plea agreement stipulated that the officer identified himself, but not that defendant knew that the person at his door was a police officer. At sentencing, the district court relied on the plea agreement to find that defendant knew the person at his door was a police officer. The court enhanced defendant’s offense level under § 3A1.2(c)(1), which provides for a six-level enhancement if the defendant, “knowing or having reasonable cause to believe that a person was a police officer, assaulted such officer during the course of the offense.” The Eighth Circuit held that the district court erred because defendant did not stipulate that he knew the person at the door was a police officer. U.S. v. Robinson, 608 F.3d 379 (8th Cir. 2010).
8th Circuit says defendant may not challenge sentence within stipulated range. (795) Defendant pled guilty to drug conspiracy charges. Before sentencing, defendant stipulated that a sentence within the guideline range of 360 months to life was reasonable, and said he would not seek a sentence outside of this range. The district court sentenced defendant to 600 months, and he appealed the sentence as unreasonable. The Eighth Circuit held that defendant could not challenge his sentence on appeal. The stipulation was the product of counseled negotiations between defendant and the government. He explicitly and voluntarily exposed himself to a sentence in the range of 360 months to life, and acknowledged any sentence in this range was reasonable. This stipulation was supported by consideration, since the government agreed not to pursue an enhancement for using a minor in the offense. U.S. v. Lopez, 526 F.3d 1128 (8th Cir. 2008).
8th Circuit says defendant cannot challenge tax loss stipulated to in plea agreement. (795) Defendant argued that the court clearly erred in calculating his gross unreported income and tax due. He contended that the amount of tax loss should have been $18,662.69, as determined by the district court. However, defendant stipulated in the plea agreement that there was “a tax loss of $67,662 for the period of 1995-1998.” A defendant who voluntarily accepts the provision of a plea agreement cannot challenge on appeal the punishment to which he willingly exposed himself, because the defendant accepts both the benefit and the burden of the plea agreement. U.S. v. Piggie, 303 F.3d 923 (8th Cir. 2002).
8th Circuit reverses drug quantity finding where inconsistent with stipulated fact. (795) The district court attributed more than 1.5 kilograms of crack cocaine to defendant. This was based on the court’s finding that in January 1996, the leader of the conspiracy gave one kilogram of crack to a co-conspirator in defendant’s presence. The Eighth Circuit rejected this drug quantity finding because it was inconsistent with the stipulated facts. In the government’s case against another conspirator, the government stipulated that the leader was absent from Nebraska, where the transaction allegedly took place, at all times during the month of January 1996. Thus, according to this stipulated fact, the transaction attributed to defendant could not have taken place. U.S. v. Milton, 153 F.3d 891 (8th Cir. 1998).
8th Circuit rules language “the United States submits” is not a stipulation. (795) Defendant’s plea agreement provided that the stipulations and recommendations in the agreement were not binding on the court. The paragraph further provided that the “United States submits” that the amount of cocaine base for sentencing purposes was between 50 grams and 150 grams, yielding a base offense level of 32. The Eighth Circuit held that the plea agreement did not contain a drug quantity stipulation. The drug quantity simply set out the government’s position with respect to sentencing. Defendant in no way agreed to this position. Other parts of the agreement clearly included the phrase “the parties stipulate.” Since the government only presented evidence of the 6.84 grams involved in the offense of conviction, there was no basis for holding defendant accountable for between 50 and 150 grams of crack. Moreover, because there was no proof of this relevant conduct, there was no basis for finding that defendant was untruthful when he denied involvement with more than 6.84 grams of crack. Therefore, there were no grounds for denying safety valve protection. On remand, the parties were free to present drug quantity evidence. U.S. v. Kang, 143 F.3d 379 (8th Cir. 1998).
8th Circuit holds that elderly targeted by telemarketing scheme were vulnerable victims. (795) Defendant ran a telemarketing fraud scheme. Under his plea agreement, defendant agreed that he would receive a vulnerable victim enhancement because defendant knew or should have known that many of his victims were unusually vulnerable due to their age or physical or mental condition. The Eighth Circuit approved the § 3A1.1 enhancement. Defendant stipulated that the enhancement applied to his case. Moreover, most of the victims were in fact elderly and the record indicated that defendant knew or should have known that his targets were older persons. The district court properly held defendant to his stipulation. U.S. v. Cron, 71 F.3d 312 (8th Cir. 1995).
8th Circuit says considering facts outside stipulation did not breach plea bargain. (795) Defendant argued that the government violated its plea agreement with him by allowing the district court to consider conduct outside the stipulated facts, including uncharged conduct. The Eight Circuit held that the government’s introduction of facts outside the stipulation did not breach the plea agreement. First, several of the events mentioned by the government occurred after defendant entered his plea agreement. Second, nowhere in the plea agreement did the government agree to limit the information it would give the court for sentencing. Additionally, when the court asked defendant if anyone had made any other offer or promise, defendant said “No.” The district court did not err in using uncharged conduct to determine defendant’s sentence. The plea agreement did not limit the government or the district court to the stipulated facts. U.S. v. Griggs, 71 F.3d 276 (8th Cir. 1995).
8th Circuit says defendant who exposes himself to a specific sentence may not challenge it on appeal (795) Defendant pled guilty to money laundering charges based on his involvement in an interstate gambling enterprise. He argued that he should have been sentenced under the gambling guideline, § 2E3.1, rather than the money laundering guideline, § 2S1.1. The 8th Circuit held that the plea agreement bound defendant to be sentenced under the money laundering guideline. Defendant acknowledged in the plea agreement that § 2S1.1 would apply at sentencing. A defendant who voluntarily and explicitly exposes himself to a specific sentence may not challenge that punishment on appeal. Moreover, § 2S1.1 was the correct guideline for the crime to which defendant pled guilty. U.S. v. Nguyen, 46 F.3d 781 (8th Cir. 1995).
8th Circuit rules failure to grant larger reduction was not plain error in light of stipulation. (795) Defendant pled guilty to drug charges. Under a sentencing stipulation, the parties agreed that defendant was entitled to a two level reduction for being a minor participant in the offense. Defendant argued for the first time on appeal, that he was entitled to a four level reduction for being a minimal participant. The Eighth Circuit found no plain error, given defendant’s sentencing stipulation and his failure to present any evidence on this issue other than a reference to the large scope of the conspiracy. U.S. v. Copeland, 45 F.3d 254 (8th Cir. 1995).
8th Circuit says defendant waived challenge to loss by admitting extent of conspiracy. (795) Defendant and a cohort fraudulently used government credit cards. Defendant argued that the court should have excluded from its loss calculation amounts that accrued after he withdrew from the conspiracy. The 8th Circuit held that defendant waived this challenge by admitting in his plea agreement that he was involved in a conspiracy that extended to December 1987. The district court had sufficient evidence from the plea agreement and the parties’ stipulations to determine that defendant had not withdrawn from the conspiracy. U.S. v. Bender, 33 F.3d 21 (8th Cir. 1994).
8th Circuit says court not bound by information contained in stipulation of facts. (795) Defendant argued that the sentencing court improperly relied on information contained in his presentence report that was not included in the stipulation of facts in his written plea agreement. The 8th Circuit affirmed. Section 6B1.4(d) says a court is not bound by the stipulation of facts and may rely on the presentence report to determine the sentence. Defendant’s plea agreement and stipulation of facts cited § 6B1.4 is its caption. Defendant claimed he did not understand the plea agreement, but did not seek to withdraw his plea. U.S. v. Lutfiyya, 26 F.3d 1468 (8th Cir. 1994).
8th Circuit finds no violation of guideline § 1B1.8 in prosecution’s disclosure of defendant’s admissions. (795) Defendant entered into a plea agreement which provided that no information which defendant provided would be used against him. Defendant then breached the plea agreement by using drugs while the agreement was in effect. The plea agreement was revoked and defendant entered into a new plea agreement which added a stipulation that a factual basis existed for using 3,000 pounds of marijuana in determining defendant’s base offense level. Defendant contended that the prosecution’s disclosure of his admissions regarding 3,000 pounds of marijuana for use in calculating his offense level violated guideline § 1B1.8. The 8th Circuit rejected this argument, noting that defendant voluntarily stipulated that his sentence should be based on 3,000 pounds of marijuana. The district court had reviewed with defendant the modified plea agreement, and defendant stated on the record that he understood and agreed to those terms. U.S. v. Stevens, 918 F.2d 1383 (8th Cir. 1990).
8th Circuit finds that defendant with mistaken belief that stipulation would be consistent with presentence report cannot withdraw guilty plea. (795) Defendant argued that the district court abused its discretion in failing to consider whether he was reasonably justified in his mistaken belief that the facts stated in the stipulation would be consistent with those in his presentence report. He argued that he would not have agreed to a stipulation which was consistent with the Probation Office’s characterization of his offenses. The 8th Circuit rejected the possibility that defendant’s mistaken belief was justified. Guidelines § 6B1.4(d) clearly provides that the district court “is not bound by the stipulation, but may, with the aid of the presentence report, determine the facts relevant to sentencing.” U.S. v. Russell, 913 F.2d 1288 (8th Cir. 1990).
8th Circuit rejects due process challenge to guidelines where defendant stipulated to offense level. (795) Defendant asked to be allowed to withdraw his guilty plea, arguing that the guidelines had unconstitutionally eliminated the judge’s sentencing discretion. The 8th Circuit rejected the argument noting that it had already held that the guidelines are not facially unconstitutional on grounds similar to those advanced by the defendant here. The court found no constitutional infirmity based on the specific facts in this case. In pleading guilty defendant stipulated to an offense level of 26. “He will not now be heard to raise a challenge to that which he agreed to.” U.S. v. Nischwitz, 900 F.2d 139 (8th Cir. 1990).
9th Circuit says government not estopped by plea agreement from supporting sentence imposed. (795) Defendant pleaded guilty to importation of cocaine. His plea agreement with the government stipulated that the parties would recommend that defendant receive a two-level minor role adjustment under § 3B1.2(b) if he could provide a factual basis for the adjustment. The plea agreement also stated that the government is “free to support on appeal the sentence actually imposed.” The district court declined to grant the adjustment. On appeal, the government supported the district court’s sentence, and defendant argued that the government was judicially estopped from arguing in support of the sentence imposed by the district court. The Ninth Circuit held that the plain terms of the plea agreement allowed the government to support the district court’s sentence. U.S. v. Rodriguez-Castro, 641 F.3d 1189 (9th Cir. 2011).
9th Circuit says plea agreement drug stipulation foreclosed sentencing entrapment claim. (795) Undercover police officers persuaded defendant to rob a drug stash house of 20 kilograms of cocaine and 10 kilograms of methamphetamine. In fact, neither the stash house nor the drugs existed, and defendant was arrested when he arrived to conduct the robbery. Defendant pleaded guilty to conspiracy to possess with intent to distribute the drugs that he thought he would obtain in the robbery. His plea agreement stated that his offense involved between five and 15 kilograms of methamphetamine and between 15 and 50 kilograms of cocaine. At sentencing, the district court set defendant’s sentence based on these quantities of drugs. On appeal, defendant claimed that the government had engaged in sentencing entrapment by saying that the stash house contained a large quantity of drugs. The Ninth Circuit held that the stipulation in the plea agreement to the drug amounts in the offense foreclosed defendant from raising his claim on appeal. U.S. v. Briggs, 623 F.3d 724 (9th Cir. 2010).
9th Circuit says crack amendment did not affect sentence based on binding plea agreement. (795) Defendant pleaded guilty to distributing crack cocaine, in violation of 21 U.S.C. § 841, based on a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) that provided for a 19-year sentence. The district court calculated his sentencing range under the Guidelines as 360 months to life, but, pursuant to the plea agreement, imposed a sentence of 19 years. After defendant’s sentencing, the Sentencing Commission issued Amendment 706, which decreased the sentencing ranges for offenses involving crack cocaine. Defendant then filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), which allows a court to reduce the sentence of a defendant that is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” The Ninth Circuit found that the sentence stipulated in the plea agreement was not “based on” defendant’s sentencing range under the Guidelines and therefore that he was not entitled to relief under § 3582(c)(2). U.S. v. Bride, 581 F.3d 888 (9th Cir. 2009).
9th Circuit upholds loss calculation based on stipulation in plea agreement. (795) In pleading guilty to wire fraud, defendant stipulated in his plea agreement that his fraudulent scheme took in more than $15 million in money from investors and that the offense caused a loss of between $1 million and $15 million. The presentence report included a list of defendant’s victims and a loss amount for each victim; that list showed a total loss of slightly more than $15 million. Based on the PSR, the district court found that the loss amount was more than $7 million. The Ninth Circuit upheld the district court’s loss calculation based on defendant’s stipulation of the amount garnered by his fraudulent scheme and the range of loss it caused. U.S. v. Showalter, 569 F.3d 1150 (9th Cir. 2009).
9th Circuit affirms re-calculated sentence based on facts in plea agreement. (795) Defendant was charged with illegal reentry after deportation, in violation of 8 U.S.C. § 1326, but pursuant to a plea agreement, he pleaded guilty to making a false statement to a federal official, in violation of 18 U.S.C. § 1001. In the agreement, the parties agreed that defendant had a sentencing range of 6 to 12 months and to recommend a nine-month sentence. At sentencing, the district court found that the actual offense that defendant committed was illegal reentry and that his Guideline calculation should rest on that offense. As a result, the court calculated defendant’s Guideline range as 10 to 16 months and imposed a sentence of 16 months. The Ninth Circuit held that under § 1B1.2(c), when a plea agreement establishes that defendant committed an offense other than the offense to which he pleaded guilty, a court must proceed as if the defendant committed the other offense. Applying that Guideline, the court of appeals held that defendant’s plea agreement established that he illegally entered the U.S. after deportation and that the district court properly calculated the Guidelines range for that offense. The court also held that defendant’s 16-month sentence was reasonable. U.S. v. Gutierrez-Sanchez, 559 F.3d 1088 (9th Cir. 2009), amended, 587 F.3d 904 (9th Cir. 2009).
9th Circuit finds no breach even though government agreed with facts supporting increase that was barred by plea agreement. (795) Defendant agreed to plead guilty to possession of child pornography, and the parties stipulated to the number of images. The PSR noted that the stipulation substantially undercounted the number of images because of a misapplication of the Guidelines applicable to video clips. So the PSR recommended an enhancement for more than 600 images. The government agreed that the parties had miscounted the number of images, but informed the court that it was standing by the calculation in the plea agreement in order to avoid breaching the agreement. The government argued, however, that the court should rely on the number of images to impose a sentence at the high end of the Guideline range to which the parties agreed. The Ninth Circuit held that the government did not breach the plea agreement by urging the court to rely on the facts supporting the PSR’s distribution enhancement to impose a sentence at the high end of the Guideline range. U.S. v. Cannel, 517 F.3d 1172 (9th Cir. 2008).
9th Circuit finds no error in sentence based on quantity of drugs admitted by defendant. (795) Defendant and his accomplices engaged in negotiations to sell five pounds of methamphetamine to undercover officers, but never consummated the sale. He was convicted of conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a). At sentencing, he stipulated that his offense involved five pounds of methamphetamine. The Ninth Circuit held that because defendant admitted the quantity of methamphetamine involved in his offense, use of that quantity to set his offense level did not violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Labrada-Bustamante, 428 F.3d 1252 (9th Cir. 2005).
9th Circuit holds that district court must impose stipulated sentence. (795) Defendant entered into a plea agreement under Federal Rule of Criminal Procedure 11(e)(1)(C) that provided for a 30-month sentence. The agreement also stated that the parties reserved the right to supplement the facts stipulated in the agreement. At sentencing defendant asked the district court to sentence him to 20 months because he had spent 10 months in state custody for a parole violation based on the conduct underlying his federal conviction. The district court imposed a 20-month sentence, and the government appealed. The Ninth Circuit held that the district court erred in failing to impose the stipulated sentence and that the plea provision allowing that parties to supplement the record simply authorized the court to consider supplemental information in determining whether to accept the plea. U.S. v. Cervantes-Valencia, 322 F.3d 1060 (9th Cir. 2003).
9th Circuit says government waived right to argue that plea agreement limited district court’s discretion. (795) Defendant’s plea agreement classified a prior conviction as an aggravated felony for purposes of determining his sentence for a violation of 8 U.S.C. § 1326. Defendant objected, however, when the presentence report classified that conviction as an aggravated felony. Although the government argued that the conviction was an aggravated felony, it did not assert that the plea agreement deprived the district court of discretion to decide that issue. The district court held that the conviction was not an aggravated felony, and the government appealed. The Ninth Circuit held that by failing to assert that the plea agreement bound the defendant and the district court, the government had waived that argument on appeal. U.S. v. Perez-Corona, 295 F.3d 996 (9th Cir. 2002).
9th Circuit says statement in plea agreement was not a “stipulation” to a more serious offense. (795) Under § 1B1.2(a), if more serious conduct is “specifically established” by stipulations in a plea agreement, the court must apply the guideline for the more serious conduct. However, in Braxton v. U.S., 500 U.S. 344, 351 (1991), the Supreme Court held that a stipulation which “supports two reasonable readings,” one of which is inconsistent with guilt, is not “a stipulation that ‘specifically establishes’” a crime under § 1B1.2(a). In the present case, nothing in the plea agreements specifically established a more serious offense. Therefore the district court should not have used the aggravated assault guideline in sentencing defendants who pled guilty to making false statements to the FBI. U.S. v. Lawton, 193 F.3d 1087 (9th Cir. 1999).
9th Circuit finds no plain error where defendant agreed to restitution amount in plea agreement. (795) Defendant specifically agreed in his plea agreement to “pay the full amount of restitution to be determined by the court at the time of sentencing.” He also acknowledged this agreement in his Rule 11 colloquy, knowing full well that the amount of proposed restitution was $5.8 million. At the sentencing hearing, the district court imposed the $5.8 million restitution order. Once again, defendant did not object. Accordingly, on appeal, the Ninth Circuit found it unnecessary to consider defendant’s argument that this amount exceeded his ability to repay, finding no plain error. Defendant’s clear acquiescence in the restitution order relieved the district court of any independent obligation to determine his ability to pay restitution. U.S. v. Zink, 107 F.3d 716 (9th Cir. 1997).
9th Circuit requires sentence for offense established by stipulation in plea agreement. (795) Guideline section 1B1.2(c) provides that a “plea agreement (written or made orally on record) containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s).” The 9th Circuit held that this language is mandatory. Thus, the district judge in this case was required to sentence the defendant as if he had been convicted of unlawfully acquiring food stamps, even though he pled guilty only to cocaine distribution charges and the twelve food stamp fraud charges were dismissed. The defendant’s stipulation to the food stamp offenses included all of the elements of those crimes. U.S. v. Saldana, 12 F.3d 160 (9th Cir. 1993).
9th Circuit finds no breach of plea agreement where defendant stipulated to consideration of dismissed count. (795) Defendant argued that under U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990), it was error for the district court to accept the plea bargain by which he pled guilty to possession of an unregistered sawed off shotgun in violation of 26 U.S.C. 5861(d), and to dismiss the assault count, and yet take into account the assault when imposing sentence. The plea agreement provided that pursuant to guideline section 2K2.1(b)(5) “the defendant understands that the government will argue that the circumstances of the alleged assault should be considered by the judge as a specific offense characteristic for the purposes of sentencing the defendant on [the gun count]”. The 9th Circuit held that this language was explicit in stating that the government reserved the right to prove at sentencing that defendant had committed the assault. The pivotal point of the Castro-Cervantes case was that a plea bargain is governed by contract principles. No violation of the bargain occurred when the government proved the assault at sentencing. U.S. v. Shackley, 995 F.2d 166 (9th Cir. 1993).
9th Circuit holds that restitution in mail fraud case is not limited to amount of check mailed, but includes entire scheme. (795) Relying on Hughey v. U.S., 495 U.S. 411 (1990), and U.S. v. Snider, 957 F.2d 703 (1992), defendant argued that the restitution exceeded that permitted by the Victim Witness Protection Act, 18 U.S.C. section 3579. Hughey interpreted that Act as limiting restitution only to losses underlying the offense of conviction, and not for related conduct. Snider concluded that a defendant could not be required to pay restitution beyond the offense of conviction even if the plea agreement so provided. In this case, the 9th Circuit held that the restitution did not go beyond the offense of conviction because “the fraud charged, and the restitution permitted, is clearly not limited to the amount of [the] check” in count one. Similarly, count two alleged a scheme to defraud an insurance company of $102,163.72 and alleged that in furtherance of that fraud, defendant caused a statement of his physical condition to be placed in the mail. The 9th Circuit held that the “valueless physical statement does not limit the amount of the fraud charged.” U.S. v. Scarano, 975 F.2d 580 (9th Cir. 1992)
9th Circuit remands where plea stipulation required choice between honesty to defendant and disclosure to Parole Commission. (795) The plea agreement stipulated that the quantity of cocaine was less than 5 kilos, that there would be no minimum mandatory sentence, and the sentence would be “paroleable.” However, the presentence report accurately stated that the scheme involved more than 18 kilograms of cocaine. To avoid the discrepancy in the amount of drugs, the district court ordered the PSR to be amended before it was sent to the U.S. Parole Commission. Nevertheless, both versions of the PSR were received by the Parole Commission, which asked the AUSA to explain the discrepancy. The AUSA responded that 18 kilograms was the correct amount, and said the government would oppose parole. On appeal, the 9th Circuit expressed its disappointment that “the government may have placed itself between the rock of disclosure to the Parole Commission and the hard place of honesty in its dealings with the defendant.” The court found the plea agreement ambiguous, and remanded the case for the district court to decide what obligations the agreement imposed on the government. U.S. v. Anderson, 970 F.2d 602 (9th Cir. 1992), amended, 990 F.2d 1163 (1993).
9th Circuit holds that court is not bound by inaccurate stipulation of drug amount. (795) As part of the plea agreement, the parties stipulated that the amount of cocaine base was less than five grams. Both parties knew this was inaccurate. The presentence report, relying on information furnished by the prosecutor, correctly stated that defendant distributed 5.19 grams of cocaine base. The district court refused to follow the stipulation and based the sentence on 5.19 grams. On appeal, the 9th Circuit affirmed, holding that, in accordance with U.S.S.G. section 6B1.4(b) the court was not bound by the stipulation in the plea agreement. The court noted that its holding was in agreement with other circuits. U.S. v. Mason, 961 F.2d 1460 (9th Cir. 1992).
9th Circuit upholds use of stipulated value in sentencing. (795) Defendant argued that the amount involved in the fraud related counts was unspecified, and therefore the district court erred in using the total $500,000 figure in computing his guidelines. The 9th Circuit rejected the argument noting that the stipulation specifically provided that the value involved in either of the counts was $500,000. Moreover the record contained evidence of an even higher amount of fraud. U.S. v. Cambra, 933 F.2d 752 (9th Cir. 1991).
9th Circuit upholds use of arson guidelines in mail fraud case. (795) Defendant pled guilty to mail fraud. Pursuant to guideline § 1B1.2, he stipulated that he conspired to blow up his store to collect the insurance proceeds. The district court sentenced him using the arson guidelines instead of the mail fraud guidelines, resulting in a sentence of five years — the statutory maximum. The 9th Circuit affirmed, noting that guideline § 1B1.2 expressly provides that a stipulation may establish a more serious offense than the offense of conviction, and that Application Note 13 to § 2F1.1 specifically suggests that a state arson offense might be prosecuted as a mail fraud where a fraudulent insurance claim is mailed. The court also found that the plea in this case was not inconsistent with guideline § 6B1.2, which requires courts to accept only pleas that reflect the seriousness of the conduct. U.S. v. Bos, 917 F.2d 1178 (9th Cir. 1990).
10th Circuit denies request to weigh marijuana where defendant stipulated to quantity. (795) The 10th Circuit upheld the denial of defendant’s motion to independently weigh the marijuana prior to sentencing. Defendant stipulated at trial that the gross weight of the seized marijuana was 27 pounds. A stipulation made for trial purposes is binding at sentencing. U.S. v. Gonzalez-Acosta, 989 F.2d 384 (10th Cir. 1993).
10th Circuit holds that acceptance of forfeiture stipulation did not violate Fed. R. Crim. P. 11. (795) At the district court’s suggestion, defendant agreed to stipulate to forfeiture of certain items if the jury returned guilty verdicts on certain counts. On appeal, defendant argued for the first time that the court violated Fed. R. Crim. P. 11 by failing to address him directly before accepting the stipulation to ensure that he understood the nature of the accusation, that the stipulation was entered into voluntarily, and that there was a factual basis for the forfeiture. The 10th Circuit found no plain error or violation of due process. The stipulation was not a guilty plea. This was a case where both parties gambled on the outcome of the trial and defendant lost. Moreover, the district court took great care to ensure that defendant, through his trial counsel, understood the nature of the stipulation. Defendant was present in court and represented by counsel during all of the discussions surrounding the stipulation. U.S. v. Herndon, 982 F.2d 1411 (10th Cir. 1992).
10th Circuit denies credit for acceptance of responsibility despite stipulation. (795) Defendant contended that he was entitled to an acceptance of responsibility reduction because he pled guilty and the parties stipulated to the adjustment. The 10th Circuit rejected this argument. First, this type of stipulation did not bind the sentencing court. Second, defendant bore the burden of proving by a preponderance of the evidence that he was entitled the reduction. Defendant never made a statement accepting criminal responsibility. His guilty plea, without more, did not automatically entitle him to the reduction. U.S. v. Hernandez, 967 F.2d 456 (10th Cir. 1992).
10th Circuit rules stipulation did not bar consideration of additional drugs. (795) Defendant was originally charged with possession 1.5 liters of P2P with intent to manufacture methamphetamine. In order to avoid the mandatory minimum sentence, the parties stipulated that the amount of P2P possessed by defendant was “not readily provable.” The 10th Circuit ruled that the district court erred in finding that the stipulation barred it from considering additional drugs found in defendant’s home. Under guideline § 6B1.4(d), a court is not bound by a stipulation of facts. Section 1B1.3(a)(2) requires aggregation of quantities from drug offenses that were “part of the same course of conduct or common scheme or plan as the offense of conviction,” regardless of whether defendant was convicted of underlying offenses pertaining to the additional amounts. Moreover, the mandatory minimum sentence cannot be eliminated simply because a specific amount of drugs was not alleged in the indictment. However, since defendant was not fully aware of the consequences of his plea, the plea was involuntary, and he was entitled to plea anew. U.S. v. McCann, 940 F.2d 1352 (10th Cir. 1991).
10th Circuit upholds consideration of drugs not stipulated in plea agreement. (795) Defendant’s plea agreement stipulated that he was involved in .8 grams of methamphetamine, which was reflected in his presentence report. The district court found the presentence report unsatisfactory, and ordered the probation office to amend the report to reflect the actual seriousness of defendant’s conduct. The amended report indicated that defendant was involved in the distribution of 1,815 grams of methamphetamine. Defendant was sentenced on this basis, and contended that the government breached the plea agreement by attempting to circumvent the amount of drugs stipulated in the agreement. The 10th Circuit rejected this argument. A court may consider information not stipulated in a plea agreement. Moreover, the government’s actions did not breach the agreement, because it provided that the government could provide additional facts at sentencing concerning the offense. U.S. v. Easterling, 921 F.2d 1073 (10th Cir. 1990).
10th Circuit holds that district court is not bound by stipulations in plea agreement. (795) In the plea agreement, the parties stipulated to various facts resulting in a guideline range of from 6-12 months. Based upon information in the presentence report however, the district court concluded that two levels should be added because the defendant was a leader in the conspiracy. Relying on a recent 10th Circuit case, the court held that under U.S.S.G. § 6B1.4 a district court may properly decline to follow a sentence recommendation where the stipulated facts do not include all relevant conduct bearing on the guideline range. In this case, the plea agreement acknowledged that the court retained the power to determine relevant facts and that the stipulations were not binding. Accordingly the district court acted well within its authority in finding that defendant was a leader of the conspiracy. U.S. v. Richardson, 901 F.2d 867 (10th Cir. 1990).
10th Circuit rules that court need not accept stipulated facts in nonbinding plea recommendation. (795) Defendant pled guilty to distribution of cocaine and stipulated in the plea agreement to a base offense level. The sentencing court added two levels to the base offense level based on the presentence report. Relying on the Commentary to the guidelines the 10th Circuit rejected defendant’s contention that the sentencing count should have sentenced him strictly and solely on the stipulated facts in the plea agreement. The plea agreement contained a non-binding guideline recommendation and the district court advised defendant it was not bound by the recommendation. Thus the district court was not bound to accept the stipulated facts and correctly declined to do so when it learned the plea agreement did not contain all relevant conduct. U.S. v. Rutter, 897 F.2d 1558 (10th Cir. 1990).
11th Circuit reverses where court determined that defendant was involved in more drugs than stipulated in plea agreement. (795) Defendant’s plea agreement stipulated that the quantity of drugs involved in defendant’s offense was 13 grams of cocaine. At the government’s urging, the district court found that the quantity of drugs involved was 15 kilograms. The 11th Circuit held that this finding was precluded by the terms of the plea agreement and the plea negotiations. During the plea negotiations, the government agreed that defendant would not serve more than 12 months. The 11th Circuit found that this “presumes that a finding that she was involved in a 15 kilogram cocaine offense would not be made.” The 11th Circuit also found that the government’s attempts to show that defendant was involved in a 15 kilogram transaction violated the plea agreement. Evidence indicated that the government orally agreed that it “would make no attempt to influence the court or the parole board by ‘packing’ the presentence report with prejudicial material.” The agreement specifically stated that the government would not seek additional “prosecutions” for “offenses which are now known to the government.” U.S. v. Jefferies, 908 F.2d 1520 (11th Cir. 1990).
11th Circuit holds that plea agreement did not preclude consideration of other misconduct. (795) The 11th Circuit rejected defendant’s contention that after accepting his plea agreement, the district court could no longer consider, without violating due process, conduct not stipulated in the agreement. The court held that the government’s agreement to drop a count from defendant’s indictment did not in any way preclude the trial court from considering evidence of defendant’s other misconduct. U.S. v. Castellanos, 904 F.2d 1490 (11th Cir. 1990).
11th Circuit holds stipulation in plea bargain that defendant’s role was “minor” was not binding on the court. (795) Under the plea agreement, the government and the defendant agreed that defendant should receive a reduction for having a minor role in the counterfeiting scheme. The district rejected the stipulation, and the 11th Circuit affirmed. Under guideline § 6B1.4(d), the district court is not bound by stipulations of fact, “but may with the aid of the presentence report, determine the facts relevant to sentencing.” U.S. v. Forbes, 888 F.2d 752 (11th Cir. 1989).
D.C. Circuit holds that defendant waived challenge to use of a computer increase. (795) Defendant was convicted of crossing state lines to have sex with a minor. He challenged for the first time on appeal a sentencing enhancement based on his use of a computer to facilitate the offense. The D.C. Circuit held that defendant waived this challenge. Defendant did not merely fail to object to the enhancement; his decision not to challenge the enhancement was deliberate. At his plea hearing, defendant told the magistrate judge that he had reviewed the plea agreement with his counsel, understood it fully, and agreed to its terms. The plea agreement included a Statement of Offense, signed by defendant, describing how he used a computer to carry out his crime. He admitted that during online chats, he told the detective he wanted to have sex with an 11-year-old and discussed traveling to do so. Defendant and the government relied upon these admissions to stipulate to offense-level adjustments, including the enhancement he challenged on appeal. These actions were sufficient to constitute waiver. U.S. v. Laslie, 716 F.3d 612 (D.C. Cir. 2013).
Indiana District Court rules sentencing court not bound by preliminary calculations of guideline ranges in imposing sentence. (795) Three defendants pled guilty to distributing less than five grams of crack. They each entered stipulations with the government that stated they distributed 0.4 grams of crack, which resulted in a base offense level of 14. However, the sentencing court set the base offense level at 20 holding that the court was not bound by the guidelines calculations set forth in the plea agreement (relying on § 6B1.4(d)). The preliminary calculations were not binding stipulations of fact, as the defendants were “well aware” when they entered their plea. U.S. v. Bennett, 716 F.Supp. 1137 (N.D. Ind. 1989).