United States v. Mackay ( 2002 )


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  •                       UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    NO. 00-10380
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    ROBERT A. MACKAY, also known as
    Fatman, also known as Fat Boy
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    Cr. No. 3:97-CR-208-01
    May 28, 2002
    Before EMILIO M. GARZA and PARKER, Circuit Judges and HINOJOSA*,
    District Judge.
    Per Curiam:**
    Defendant-appellant, Robert A. Mackay (Mackay) appeals the
    final judgment of the United States District Court, Northern
    *
    District Judge of the Southern District of Texas, sitting by
    designation.
    **
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5TH CIR. R. 47.5.4.
    District of Texas, in his criminal case.     Mackay presents four
    points of error related to his plea agreement and the district
    court’s refusal to allow him to withdraw his guilty plea, issues
    related to the quantity of the controlled substance used to
    determine the sentence imposed, the use of sentence enhancements
    factors under the sentencing guidelines not mentioned in the
    indictment, and the admission at Mackay’s sentencing of a
    transcript of testimony used at a co-conspirator’s sentencing
    hearing.    For the reasons that follow, we affirm.
    I.   Background
    On June 24, 1997, Mackay and 18 co-defendants were charged
    in a single count indictment with conspiring to distribute and
    possess with intent to distribute one thousand kilograms or more
    of marijuana in violation of Title 
    21 U.S.C. §§ 841
    (a)(1),
    841(b)(1)(vii) and 846.    A twenty-two count superseding
    indictment was filed on August 28, 1997 naming Mackay and 21 co-
    defendants.
    In the superseding indictment Mackay was charged in count
    one with conspiracy to distribute and possess with intent to
    distribute one thousand kilograms or more of marijuana in
    violation of Title 
    21 U.S.C. §§ 841
    (a)(1), 841(b)(1)(A)(vii) and
    846.    Counts two, four and twenty charged Mackay with the use of
    a communication facility during the commission of a drug
    2
    trafficking crime in violation of Title 
    21 U.S.C. § 843
    (b) and in
    count twenty-one, he was charged with conspiracy to commit money
    laundering in violation of Title 
    18 U.S.C. §§ 1956
    (a)(1)(A)(i),
    1956(a)(2)(A) and 1956(h).
    On January 5, 1998, Mackay plead guilty to the marijuana
    conspiracy alleged in count one of the superseding indictment
    pursuant to a plea agreement with the Government.   In the plea
    agreement, among other matters, Mackay’s statutory sentencing
    range was identified as between 10 years and life imprisonment.
    Mackay agreed not to contest any forfeiture proceedings related
    to three specific pieces of real property (constituting 475
    acres, 350 acres, and 20 acres), a 1995 Lincoln Towncar, and
    assorted jewelry.   In return, the Government agreed to return to
    Mackay all other property the Government had seized which was
    subject to forfeiture action but not among the previously listed
    items.
    Unbeknownst to the Government’s trial attorneys, some of the
    property that was to be returned to Mackay (which included two
    Ford pick-up trucks, various weapons, and one Bel Aire Chevrolet)
    had already been administratively forfeited by the Drug
    Enforcement Administration (DEA) before the parties entered into
    the plea agreement.   Mackay had not filed a petition for
    remission with the DEA and had not preserved his rights with
    regards to said property under the DEA administrative process.
    3
    In March 1998, Mackay moved to withdraw his guilty plea,
    alleging that the Government had not returned all the property
    under the agreement, specifically the items that were
    administratively forfeited by the DEA.1         In an evidentiary
    hearing before the district court in April, Mackay requested
    either specific performance under contract law, or that
    adjustments to the plea agreement be made in order that Mackay
    could be “made whole either with a replacement item or
    compensating value,” or in the alternative, Mackay wanted to
    withdraw his plea.       Meanwhile, the Government had proceeded to
    make available to Mackay the property listed in the agreement
    except that which was administratively forfeited.
    In August of 1998, the Government explained to the district
    court that the DEA had now received a petition for remission from
    Mackay and would conduct an expedited review of the forfeiture
    proceedings.    The Government also explained that in order for
    Mackay to receive the administratively seized property he was
    requesting, Mackay was required to pay $15,450.00 to the DEA.              As
    a result, the Government suggested that Mackay could stipulate to
    the forfeiture of a real estate property he had agreed to forfeit
    1
    The court notes that the Government’s responses to Mackay’s attempts
    to withdraw his plea refer to an agreement made with his wife and co-
    defendant, Kris Mackay, who was represented by a different attorney, had a
    similar return-of-property clause in her plea agreement, and had requested
    specific performance only. While explaining the proceedings surrounding the
    performance of the plea agreement, this opinion will refer to dealings with
    the Mackays as dealings with Mackay as Mackay is the only defendant in this
    appeal
    4
    and that the court could make Mackay a lien holder for $15,450.00
    on that property and, thus, the sale of the property would make
    Mackay whole.   The Government stated that said property was worth
    about $500,000.00 and that pre-existing liens on the real
    property totaled $185,000.00.   Mackay, however, objected
    asserting, among other things, that it was unlikely that any
    money would be left after the sale of said property to satisfy
    the lien.
    After conducting hearings, the court found that although the
    Government might have been negligent in its original promises in
    the plea agreement, it had “taken action in good faith to bring
    about substantial compliance with the plea agreement.”     The court
    concluded that the government complied with the agreement “for
    all practical purposes” and that a withdrawal of the plea would
    not be in the interest of justice.     Mackay refused to sign a
    stipulation agreement as to the forfeiture of the property he had
    agreed to forfeit and moved for reconsideration of the denial of
    his motion to withdraw his plea.
    Mackay eventually did pay the DEA $15,450.00 for the release
    of the administratively forfeited items, but Mackay told the
    court that it did not constitute an admission that the plea
    agreement had been met.   The Government then requested that the
    court impose a lien, including the $15,450.00 to reimburse Mackay
    for the DEA administratively released property, on a property
    5
    which Mackay had agreed to forfeit.     As an alternative, the
    Government ended up agreeing to dismiss the forfeiture of a 475
    acre piece of property which Mackay had agreed to forfeit.       The
    Government’s agreement would allow Mackay to recover his money in
    lieu of a lien on the property and he would thus be reimbursed
    for the $15,450.00.   The court then denied the request to
    reconsider the denial of the motion for withdrawal of the guilty
    plea and the case was set for sentencing.
    Mackay’s Pre-Sentence Report (PSR) calculated his offense
    level at 40.   This included a base offense level of 34 for
    5,208.81 kilograms of marijuana, an increase of 2 for possession
    of a firearm, an increase of 4 for Mackay’s role in the offense,
    an increase of 2 for obstruction of justice, and a decrease of 2
    for acceptance of responsibility.     Mackay’s criminal history
    category was calculated at III, and the resulting guideline level
    was 360 months to life.
    During the sentencing hearing, the Government moved to
    introduce the transcript of co-defendant Jose Rosales’ sentencing
    hearing, which included the testimony of a deceased unindicted
    co-conspirator, Larry Mears (Mears).     Mackay objected to the
    introduction of Mears’ testimony stating there was no opportunity
    for cross-examination.    The court overruled the objection stating
    that Mears’ testimony was given under oath and that the court was
    allowed to hear hearsay evidence during sentencing.
    6
    The court adopted the PSR findings regarding Mackay’s base
    offense level, firearm enhancement, and role enhancement.    The
    court rejected the enhancement for obstruction of justice and
    also found that Mackay had not accepted responsibility.   On March
    30, 2000 the district court, using the resulting guideline
    calculation of 40 and criminal history category of III,
    sentenced Mackay to life imprisonment.   Mackay’s sentence was
    later reduced to 405 months because there was a miscalculation of
    Mackay’s criminal history category.
    As stated previously, Mackay raises four issues on appeal.
    First, he argues that the Government failed to perform as it was
    required under the plea agreement and that he was entitled to
    withdraw his guilty plea.   Second, Mackay maintains that the
    factual resume at the time of the plea failed to list as an
    element of the offense the drug quantity involved and that it
    constitutes error under Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    120 S.Ct. 2348
    , 
    147 L.Ed.2d 435
     (2000).    Third, Mackay argues that
    sentencing guideline enhancements imposed for possession of a
    firearm and his role in the offense were plainly erroneous
    because neither were alleged in the indictment nor proved beyond
    a reasonable doubt as required under Apprendi.   Finally, Mackay
    argues that the district court erred in admitting the transcript
    of testimony presented at a related sentencing hearing because
    Mackay was deprived of his right to cross-examine a witness.
    7
    II.    Plea Agreement Claims
    Mackay’s first argument on appeal is that the government
    violated the terms of his plea agreement by the DEA requiring him
    to pay $15,450.00 to return property he was entitled under the
    agreement.    This argument is made although the Government
    subsequently released a forfeiture claim on a property which, in
    effect, reimbursed Mackay for the $15,450.00.
    When interpreting terms of a plea agreement, this court
    applies general principles of contract law.      United States v.
    Cantu, 
    185 F.3d 298
    , 304 (5th Cir. 1999).      In order “to assess
    whether a plea agreement has been violated, this court considers
    ‘whether the government’s conduct is consistent with the
    defendant’s reasonable understanding of the agreement.’”      Cantu,
    
    185 F.3d at 304
     (quoting United States v. Valencia, 
    985 F.2d 758
    ,
    761 (5th Cir. 1993)).      “[T]he government is not permitted to
    breach its part of a plea agreement in such a way that frustrates
    the defendant’s reasonable understanding of the agreement.”
    United States v. Asset, 
    990 F.2d 208
    , 216 (5th Cir. 1993).         The
    defendant bears the burden to prove by a preponderance of the
    evidence the underlying factors that establish the breach.
    Cantu, 
    185 F.3d at 304-05
    .      Whether the Government violated the
    plea agreement is a question of law reviewed de novo.      
    Id. at 305
    .     The underlying facts showing whether a breach occurred are
    8
    reviewed for clear error.     United States v. Gibson, 
    48 F.3d 876
    ,
    878 (5th Cir. 1995).
    Mackay relies on Santobello v. New York, 
    404 U.S. 257
    , 262,
    
    92 S.Ct. 495
    , 499, 
    30 L.Ed.2d 427
    ,433 (1971) for the proposition
    that the court erred in not allowing Mackay to withdraw his
    guilty plea.    In Santobello, the Supreme Court vacated and
    remanded a case back to state court because the Court found that
    the government breached its agreement with the defendant.         
    Id. at 262-63
    .   The government in Santobello agreed not to recommend a
    sentence to the trial judge in exchange for a plea of guilty to a
    lessor included offense.      
    Id.
       At the time of sentencing six
    months later, however, a different prosecutor recommended that
    the trial judge impose the maximum sentence.        
    Id.
    Santobello applies to cases in which the court must decide
    what remedy to apply when the government breaches a plea
    agreement.     United States v. Kurkculer, 
    918 F.2d 295
    , 299 (1st
    Cir. 1990).    “The Santobello Court did not hold that the
    government must fulfill every agreement or offer it makes.
    Rather, as we have consistently recognized, the Court was
    concerned with enforcing governmental promises that had induced
    the defendant to plead guilty.”         United States v. Traynoff, 
    53 F.3d 168
    , 170-171 (7th Cir. 1995).        In order to reach Santobello,
    we must find that the Government materially breached the plea
    agreement.
    9
    A breach is material if the non-breaching party is deprived
    of the benefit of the bargain.   United States v. Castaneda, 
    162 F.3d 832
    , 837 (5th Cir. 1998).   “The less the non-breaching party
    is deprived of the expected benefits, the less material the
    breach.”   
    Id.
       “[I]f a party's ‘nonperformance ... is innocent,
    does not thwart the purpose of the bargain, and is wholly dwarfed
    by that party's performance,’ the breaching party has
    substantially performed under the contract, and the non-breaching
    party is not entitled to rescission.”   
    Id. at 838
    .
    As stated previously, Mackay agreed to plead guilty to the
    first count of his indictment and to not contest any forfeiture
    proceedings related to three specific pieces of real property
    (constituting 475 acres, 350 acres, and 20 acres), a 1995 Lincoln
    Towncar, and assorted jewelry.   In return, the Government
    promised to return to Mackay all the property the Government had
    seized which was subject to forfeiture action but not among the
    listed items.
    The alleged breach arose when the Government later
    discovered that several items (including two Ford pick-up trucks,
    various weapons, and one Bel Aire Chevrolet) had before the
    parties entered into the plea agreement been administratively
    forfeited by the DEA.   In an attempt to resolve the situation,
    the Government made offers to make Mackay whole on the $15,450.00
    it would cost to release the items from the DEA.   The Government
    10
    was diligent in returning all other property, and eventually
    effectively reimbursed Mackay the $15,450.00 by not proceeding
    with the forfeiture of a 475 acre piece of property which Mackay
    was allowed to keep although he had agreed to forfeit said
    property.
    Although the Government was delayed in returning all the
    property due Mackay, the Government substantially complied with
    the plea agreement.    Mackay bargained for the return of all his
    property the Government had seized except for three specific
    pieces of real property (constituting 475 acres, 350 acres, and
    20 acres), a 1995 Lincoln Towncar, and assorted jewelry.    The
    only obstacle the Government encountered was the return of
    several items that the DEA administratively forfeited due to
    Mackay’s failure to preserve his rights under the administrative
    process.    Once the problem with returning the items was
    discovered, the Government proposed a plan to the court in which
    Mackay would receive the full benefit of his bargain.    We hold
    that the Government substantially performed the plea agreement.
    III.   Apprendi Claims
    Mackay next contends that the court committed two errors
    under Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    120 S.Ct. 2348
    , 
    147 L.Ed.2d 435
     (2000).    First, Mackay argues that the district court
    committed error under Apprendi because the factual resume at the
    11
    time of his guilty plea did not list the drug quantity involved
    as an element of the offense charged.    Second, Mackay argues that
    the district court’s sentencing enhancements imposed for
    possession of a firearm and role in the offense constitute error
    under Apprendi because they were not alleged in the indictment
    nor proved beyond a reasonable doubt.    Mackay makes these
    objections for the first time on appeal.
    An Apprendi issue raised for the first time on appeal is
    reviewed for plain error.   United States v. Virgen-Moreno, 
    265 F.3d 276
    , 297 (5th Cir. 2001), United States v. Barton, 
    257 F.3d 433
    , 440 (5th Cir. 2001).   Plain error review requires Mackay to
    show "(1) an error; (2) that is clear or plain; (3) that affects
    the defendant's substantial rights; and (4) that seriously
    affects the fairness, integrity or public reputation of judicial
    proceedings."   United States v. Vasquez-Zamora, 
    253 F.3d 211
    , 213
    (5th Cir. 2001) (quoting United States v. Vasquez, 
    216 F.3d 456
    ,
    459 (5th Cir. 2000)).
    Mackay first maintains that the district court erred under
    Apprendi because it failed to list the drug quantity as an
    element of the offense on the factual resume.    In United States
    v. Keith, we held in light of Apprendi that “to the extent that
    the drug quantity increases a sentence beyond the statutory
    maximum, it must be alleged in the indictment and proved to a
    jury beyond a reasonable doubt.”     United States v. Keith, 230
    
    12 F.3d 784
    , 786-87(5th Cir. 2000).     Furthermore, “Apprendi is
    ‘limited to facts which increase the penalty beyond the statutory
    maximum, and does not invalidate a court’s factual finding for
    the purposes of determining the applicable Sentencing
    Guidelines.’”   United States v. Keith, 
    230 F.3d 784
    , 787 (5th
    Cir. 2000) (quoting United States v. Doggett, 
    230 F.3d 160
    , 166
    (5th Cir. 2000)).
    Mackay pled guilty to count one of the superseding
    indictment which charges Mackay did “knowingly, intentionally,
    and unlawfully, combine, conspire, confederate, and agree . . .
    to distribute and possess with the intent to distribute one
    thousand kilograms or more of substance containing a detectable
    amount of marijuana, a Schedule I controlled substance, in
    violation of Title 21, United States Code, Sections 841 (a)(1)
    and 841 (b)(1)(A)(vii).”   At the rearraignment, Mackay was read
    the indictment and was informed of the range of punishment for
    his offenses.   Mackay then stated under oath that the facts set
    forth in his factual resume were true.    The signed factual resume
    states that Mackay “knowingly, intentionally, and unlawfully, did
    combine, conspire, confederate, and agree together. . . to
    distribute and possess with the intent to distribute at least one
    thousand kilograms of marijuana, a Schedule I controlled
    substance.”
    13
    Mackay pled guilty to violation of Title 
    21 U.S.C. § 846
    which carries a range of punishment prescribed in the underlying
    offense (Title 
    21 U.S.C. §§ 841
     (a)(1) and 841 (b)(1)(A)(vii)).
    Pursuant to Title 21 U.S.C. 841 (b)(1)(A)(vii), the statutory
    maximum punishment is life imprisonment for “1000 kilograms or
    more of a mixture or substance containing a detectible amount of
    marijuana.”   Although Mackay was charged and pled guilty to more
    than 1000 kilograms, the court found that Mackay was responsible
    for 5,208.81 kilograms of marijuana for sentencing purposes.      The
    405 month sentence imposed was still within the statutory maximum
    of life imprisonment.   The district court committed no error
    under Apprendi.
    Mackay next argues that the increase in his sentence for
    possession of a firearm and his role in the offense constitutes
    error under Apprendi because neither were alleged in the
    indictment nor proved beyond a reasonable doubt.   In United
    States v. Slaughter, 
    238 F.3d 580
     (5th Cir. 2001), we held that
    in light of Apprendi, “a fact used in sentencing that does not
    increase the penalty beyond the statutory maximum for the crime
    charged and proven need not be alleged in the indictment and
    proved to a jury beyond a reasonable doubt.”   
    Id. at 583
    .   As
    stated above, Apprendi is “limited to facts which increase the
    penalty beyond the statutory maximum, and does not invalidate a
    14
    court’s factual finding for the purposes of determining the
    applicable Sentencing Guidelines.”      Keith, 
    230 F.3d at 787
    .
    The court’s guideline sentencing enhancements for possession
    of a firearm and role in the offense amounts to an upper limit
    guideline sentence which did not exceed the statutory maximum of
    life imprisonment.    Thus, Mackay’s sentence increase due to
    possession of a firearm and role in the offense does not violate
    Apprendi because the resulting sentence was still within the
    statutory maximum.
    IV.   Sentencing Hearing Claims
    Mackay’s last argument on appeal is that the district court
    erred in admitting the transcript testimony of co-defendant Jose
    Rosales during Mackay’s sentencing hearing.     Although the
    testimony was given at a related sentencing hearing, Mackay’s
    objection is that the transcript included the testimony of a
    deceased co-conspirator who Mackay did not have the opportunity
    to cross-examine.    We review a district court’s ruling on the
    admissibility of testimony for abuse of discretion.      United
    States v. Matthews, 
    178 F.3d 295
    , 303 (5th Cir. 1999).
    “For sentencing purposes, the district court may consider
    any relevant evidence ‘without regard to its admissibility under
    the rules of evidence applicable at trial, provided that the
    information has sufficient indicia of reliability to support its
    15
    probable accuracy.’"    United States v. Davis, 
    76 F.3d 82
    , 84 (5th
    Cir. 1996) (quoting U.S. SENTENCING GUIDELINES MANUAL § 6A1.3(a)
    (2000)).    Facts, for sentencing purposes, have "some indicia of
    reliability" where they are "reasonably reliable."      Davis, 
    76 F.3d at
    84 (citing U.S. v. Shacklett, 
    921 F.2d 580
    , 585 (5th Cir.
    1991)).    “Even uncorroborated hearsay evidence may be
    sufficiently reliable.”    United States v. Gaytan, 
    74 F.3d 545
    ,
    558 (5th Cir. 1996) (citing United States v. West, 
    58 F.3d 133
    ,
    138 (5th Cir. 1995)).    "The defendant bears the burden of
    demonstrating that information the district court relied on in
    sentencing is 'materially untrue.'"     Davis, 
    76 F.3d at 84
    (quoting United States v. Vela, 
    927 F.2d 197
    , 201 (5th Cir.
    1991)).
    Although several portions of co-defendant Rosales’
    sentencing hearing transcript were introduced by the Government
    containing testimony of more that one witness, Mackay only
    challenges the introduction of co-conspirator Mears’ testimony.
    Mears testified about his relationship to Rosales and Mackay, the
    method Rosales and Mackay used to transport marijuana, and the
    estimated quantity of marijuana Rosales and Mackay transported.
    The district court implicitly found that Mears’ testimony
    provided sufficient indicia of reliability to be used at Mackay’s
    sentencing hearing because it was permissible to consider hearsay
    evidence and because it was given under oath at Rosales’
    16
    sentencing hearing.   In addition, the record shows that Mears’
    testimony was cumulative.      Testimony by agents and examination of
    Rosales’ ledgers at Mackay’s sentencing hearing also indicated
    that Mackay and Rosales were leaders of the conspiracy and were
    responsible for transporting more than 5,000 kilograms of
    marijuana.
    Mackay first argues that United States v. Jackson, 
    990 F.2d 251
     (6th Cir. 1993), should control in Mackay’s situation.        In
    Jackson, the Sixth Circuit stated that “[t]o sentence a defendant
    based on facts established at someone else’s trial . . . violates
    due process.”    
    Id. at 254
    .    The Sixth Circuit, however, has
    clarified Jackson by stating “Jackson simply emphasizes that a
    district court must be clear as to the source of the evidence on
    which it bases its factual finding, and that the source may not
    be from an unrelated proceeding.”       Logan v. United States, 
    208 F.3d 541
    , 544-45 (6th Cir. 2000).       Jackson is not applicable to
    Mackay’s case.
    Mackay’s second argument is that under Apprendi and its
    predecessor Jones v. United States, 
    526 U.S. 227
    , 
    119 S.Ct. 1215
    ,
    
    143 L.Ed.2d 311
     (1999), constitutional rights apply in sentencing
    hearings and should require the right to confrontation and cross
    examination of witnesses whose testimony is being used to
    establish factual elements.
    17
    Apprendi and Jones do not apply in this case.    As stated
    previously, the Supreme Court in Apprendi held that “[o]ther than
    the fact of a prior conviction, any fact that increases the
    penalty for a crime beyond the prescribed statutory maximum must
    be submitted to a jury, and proved beyond a reasonable doubt.”
    
    120 S.Ct. at 2362-63
    .   “Apprendi is ‘limited to facts which
    increase the penalty beyond the statutory maximum, and does not
    invalidate a court’s factual finding for the purposes of
    determining the applicable Sentencing Guidelines.’”    United
    States v. Keith, 
    230 F.3d 784
    , 787 (5th Cir. 2000) (quoting
    United States v. Doggett, 
    230 F.3d 160
    , 166 (5th Cir. 2000)).
    In Mackay’s case, Mackay was sentenced within the statutory
    guideline for the offense charged.    Apprendi and Jones are thus
    not applicable to Mackay’s case.
    V.   Conclusion
    For the foregoing reasons, we conclude that Mackay’s
    conviction and sentence imposed by the United States District
    Court for the Northern District of Texas should be AFFIRMED.
    18