United States v. Aguilera , 106 F. App'x 892 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 9, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 03-41338
____________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIA AGUILERA,
Defendant - Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
USDC No:9:02-CR-49-1
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
After making a plea agreement with the Government, Maria Aguilera pleaded guilty to one
count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Aguilera
appeals the sentence imposed by the district court. She claims that her sentence was imposed in
breach of her plea agreement and in violation of U.S. SENTENCING GUIDELINES MANUAL § 1B1.8
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
because the district court relied upon self-incriminating evidence that Aguilera provided pursuant to
her plea agreement. Although the district court relied, at least in part, on Aguilera’s self-incriminating
statements, in this case the court’s reliance did not breach the plea agreement or violate § 1B1.8.
Aguilera was the passenger in a sports-utility vehicle that was stopped for a traffic violation.
The vehicle was registered in Aguilera’s name. The police officer received consent to search the
vehicle and discovered an electronically-controlled secret compartment behind the rear seat that
contained approximately twenty kilograms of cocaine. Based on these facts Aguilera chose to plead
guilty.
As part of her plea agreement, Aguilera agreed to “provide complete and truthful information
and testimony . . . in regards to all facts that [Aguilera] knows surrounding illegal activities in the
Eastern District of Texas and elsewhere.” The plea agreement includes a penalty if Aguilera failed
to “completely and truthfully” comply with that requirement. The agreement states that failure to
comply could “result in this agreement becoming unenforceable, the prosecution of [Aguilera] for any
federal offense [Aguilera] may have committed, and the use by the Government of [Aguilera]’s
statements made pursuant to this agreement against [Aguilera] in any proceeding.” In return the
Government agreed “not to prosecute [Aguilera] . . . for any offense,” other than the possession
charge listed in the plea agreement, “arising from the facts and circumstances of the charges in this
case and known to the United States Attorney or derived from information received . . . pursuant to
this agreement.”
The presentence report (“PSR”) assigned a base offense level of 34, which was reduced to
29 after reductions for meeting the safety-valve criteria and for acceptance of responsibility. The PSR
concluded that Aguilera was not entitled to a mitigating role reduction under U.S. SENTENCING
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GUIDELINES MANUAL § 3B1.2 because she was to receive $8,000 for transporting the drugs in this
case. Aguilera objected to the PSR, arguing that she should be awarded a minor role reduction under
U.S.S.G. § 3B1.2(b) because she was only a drug courier. In the probation officer’s response, he
recommended against granting Aguilera a minor role reduction because she had “admitted to
transporting controlled substances in the same manner on two previous occasions,” and that “[w]hile
[Aguilera’s] role in the offense was different than that of other participants, it was essential in carrying
out the conspiracy.” The government learned of the $8,000 payment from Aguilera’s statement to
the probation officer and learned of her previous transportation of controlled substances from a
statement she made during debriefing. The government does not contend that it knew either of these
facts before Aguilera made these cooperation statements.
At her sentencing hearing Aguilera again argued that she should receive a § 3B1.2(b) minor
role reduction. The Government responded to Aguilera’s argument as follows:
In order to grant the additional two points for minor participant, as the
Court knows, that’s a fact intensive determination, and in this case
we’re t alking about 20 kilos of cocaine hidden in an electronically
controlled compartment behind the rear seat of a vehicle that was
registered to Ms. Aguilera in this case. And she was, in addition to
this, to receive $8,000 for transporting the cocaine from Houston to
Illinois.
So we believe because of those facts she would not fall into the
category of a minor participant
After this statement, the court noted “that the Probation Officer in his respon[se] said [Aguilera] has
admitted to transporting controlled substance in the same manner on previous occasions.” The
Government replied “That is correct, Your Honor, on one previous occasion she has done this
before.” Although Aguilera’s trial counsel did not object to these statements, he did reply that “with
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regard to the additional transaction that the Probation Department pointed out, . . . that was
discovered through debriefing, not debriefing for the safety valve, . . . debriefing with the Assistant
U.S. Attorney.” Following this discussion, the district court overruled Aguilera’s objection regarding
the § 3B1.2 mitigating role reduction and sentenced her to 87 months imprisonment. The probation
officer calculated that Aguilera’s sentencing range would have been 46 to 57 months if she received
a § 3B1.2 reduction.
As it is conceded that Aguilera’s trial counsel did not object to the statements regarding the
$8,000 payment or her previous transportation of controlled substances, our review is for plain error.
See United States v. Branam, 231 F.3d 931, 933 (5th Cir. 2000). This standard requires that we find
1) and error has occurred; 2) that the error is plain; and 3) that the error must affect a substantial
right. United States v. Olano, 507 U.S. 725, 732-34 (1993). Nevertheless, even if we find plain
error, “we will not exercise our discretion to correct a forfeited error unless it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Branam, 231 F.3d at 933 (citing
Olano, 507 U.S. at 735-36).
Aguilera’s first argument on appeal is that the use of her cooperation statements to determine
her sentence was a breach of her plea agreement. “The Government’s breach of a plea agreement can
constitute plain error.” Branam, 231 F.3d at 933 (internal quotations and citations omitted). “In
determining whether the terms of the plea bargain have been violated, the court must determine
whether the government’s conduct is consistent with the parties’ reasonable understanding of the
agreement.” United States v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994) (internal quotations and
citations omitted). As the party alleging a breach of the plea agreement, Aguilera bears the burden
of proving the facts establishing the breach by a preponderance of the evidence. See id. We apply
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the general principles of contract law to interpret the terms of a plea agreement. See Hentz v.
Hargett, 71 F.3d 1169, 1173 (5th Cir. 1996). “If a breach has in fact occurred, the sentence must
be vacated without regard to whether the judge was influenced by the government’s actions.” United
States v. Saling, 205 F.3d 764, 766-67 (5th Cir. 2000).
A reasonable understanding of the plea agreement’s language permits the use of Aguilera’s
cooperation statements to determine her sentence. The only explicit limitation placed upon the
Government by the plea agreement is that Aguilera cannot be prosecuted on the basis of information
it received from Aguilera pursuant to the plea agreement. The Government has complied with this
limitation. Agreeing not to prosecute Aguilera on the basis of information obtained pursuant to the
plea agreement, however, is very different from agreeing not to use that information to determine
Aguilera’s sentence for the crime to which she pleaded guilty. Even Aguilera concedes that the plea
agreement does not explicitly state that her cooperation statements would not be used to determine
her sentence. Instead Aguilera argues that this limitation is implied by the plea agreement.
According to Aguilera, the plea agreement implies that her cooperation statements cannot be
used to determine her sent ence because of the penalty imposed by that agreement if she fails to
comply with its terms. Aguilera argues that because her plea agreement explicitly permits the
Government to use her cooperation statements against her “in any proceeding” if she fails to “provide
complete and truthful testimony” the plea agreement implies the converse, that these statements
would not be used against her in any proceeding if she complies with the plea agreement’s terms.
Aguilera claims that using her cooperation statements to determine her sentence violates this implied
limitation, and is a breach of her plea agreement.
Aguilera’s plea agreement does not contain an implied prohibition on the use of her
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cooperation statements to determine her sentence. The plea agreement contains a clause stating “that
no other promise has been made or implied by either [Aguilera] or the Government.” Thus, a
reasonable understanding of the plea agreement does not include an implied limitation upon the
Government’s use of Aguilera’s cooperation statements. In addition, the potential use of Aguilera’s
cooperation statements in other proceedings is one of a number of penalties that the plea agreement
imposes upon her if she fails to comply with the agreement’s terms. The language of this penalty
provision does not indicate that the parties intended it to serve as a limitation upon the Government.
Nor does this penalty language indicate that the parties intended this penalty to benefit Aguilera by
excluding information relevant to the determination of her sentence. If the parties had intended the
plea agreement to prohibit the use of Aguilera’s cooperation statements when determining her
sentence they could have done so explicitly or by referring to U.S.S.G. § 1B1.8. The fact that the
parties chose not to do so in this case indicates that they did not intend to prohibit the use of these
statements when determining Aguilera’s sentence. The Government did not breach the plea
agreement in this case.
Aguilera also claims that the use of her cooperation statements to determine her sentence was
a violation of U.S.S.G. § 1B1.8. Under § 1B1.8, when a defendant agrees to provide information
concerning the unlawful activities of others, and “as part of that cooperation agreement the
government agrees that self-incriminating information provided pursuant to the agreement will not
be used against the defendant, then such information shall not be used in determining the applicable
guideline range, except to the extent provided in that agreement.” U.S.S.G. § 1B1.8. The guideline
commentary indicates that § 1B1.8 only applies when there is a cooperation agreement relating “to
the provision of information concerning the unlawful activities of others.” Id. at cmt. n. 6. The scope
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of § 1B1.8 includes self-incriminating statements made to a probation officer after entering into this
type of cooperation agreement. Id. at cmt. n. 5. As part of her plea agreement Aguilera agreed to
provide information concerning the unlawful act ivities of others. The plea agreement does not
contain a specific reference to § 1B1.8, but Aguilera argues that the Government’s agreement not to
prosecute her based upon her self-incriminating statements is enough to trigger § 1B1.8.
In United States v. Marsh, 963 F.2d 72 (5th Cir. 1992), the defendant pleaded guilty and
agreed to fully cooperate with the Government. Id. at 73. “In exchange, the Government agreed that
Marsh would ‘not be prosecuted further for activities that occurred or arose out of [his] participation
in the crimes charged in the Information that are known to the government at this time.’” Id.(alteration in original). Although this plea agreement did not explicitly invoke § 1B1.8, we held that
the district court violated § 1B1.8 because it “improperly considered information that Marsh provided
to the probation officer in reliance on the plea agreement.” Id. at 74.
Marsh is distinguishable from the facts of this case. The sentence in Marsh was reviewed de
novo while our review in this case is for plain error. Moreover, in Marsh the Government conceded
that § 1B1.8 applied to the information that Marsh gave to the probation officer. Id. Here the
Government argues that § 1B1.8 does not apply to Aguilera’s cooperation statements and the plea
agreement itself contains neither an express nor an implied understanding that § 1B1.8 applied those
statements. Finally, the cooperation statements in Marsh were used to enhance the defendant’s
sentence. Id. at 73. Aguilera’s cooperation statements, in contrast, were only part of the evidence
that the district court considered when deciding whether she should receive a§ 3B1.2(b) minor role
reduction. To receive a minor role reduction, the defendant must demonstrate that they are
“substantially less culpable” than other participants in the criminal enterprise in light of all relevant
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conduct. United States v. Garcia, 242 F.3d 593, 597-98 (5th Cir. 2001). Consideration of a
defendant’s cooperation statement in response to her assertion that she was a minor participant is very
different from actively using those statements to enhance the defendant’s sentence. Thus, Marsh does
not control in this case.
Aguilera also cites a number of other opinions to support her claim that the use of her self-
incriminating statements in this case violated § 1B1.8. In each of these cases, however, the plea
agreements explicitly provided that any cooperation statements could not be used to determine a
defendant’s sentence pursuant to § 1B1.8. See, e.g., United States v. Gonzalez, 309 F.3d 882, 883
(5th Cir. 2002) (plea agreement contained a provision that explicitly stated § 1B1.8 applied); see also
United States v. Washington, 146 F.3d 219, 221 (4th Cir. 1998) (holding that use of cooperation
statements to deny § 3B1.2 minor role reduction violated § 1B1.8 in a case where the plea agreement
explicitly provided that § 1B1.8 applied to these statements). These cases are not controlling because
the parties in this case chose not to include any reference to § 1B1.8 in the plea agreement.
It is arguable that § 1B1.8 permits consideration of Aguilera’s cooperation statements because
that guideline permits the use of those statements to the extent provided in the plea agreement.
U.S.S.G. § 1B1.8(a). In this case the plea agreement is strictly limited to its terms and states that no
implied promises were made in that agreement. The only explicit limitation imposed upon the use of
Aguilera’s cooperation statements was the Government’s promise not to prosecute her based upon
those statements. The plea agreement contains neither an explicit nor an implicit promise not to use
the cooperation statements to determine Aguilera’s sentence. Consequently, the use of these
statements is arguably permitted by § 1B1.8, and even if consideration of these statements was an
error it does not rise to the level of plain error because the error is not clear or obvious. See Olano,
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507 U.S. at 732-34 .
Even if the district court’s consideration of Aguilera’s cooperation statements when it
determined her sentence is a violation of § 1B1.8 that constitutes plain error, we still decline to
exercise our discretion to correct this forfeited error because it does not seriously affects the fairness,
integrity, or public reputation of the judicial proceeding. United States v. Olano, 507 U.S. 725, 735-
36 (1993). The district court only considered Aguilera’s cooperation statements when evaluating
her claim that she was a minor participant in this criminal enterprise. Aguilera is attempting to secure
a § 3B1.2 minor role reduction while using § 1B1.8 to prevent the district court from considering
information relevant to that determination. Although § 1B1.8 seems to protect statements made by
the defendant to the government and the probation officer, it clearly does not condone the
presentation of half truths to the district court. Moreover, Aguilera’s cooperation statements were
only part of the evidence considered when determining whether Aguilera had a minor role. The other
evidence, including the fact that the vehicle containing the electronically sealed compartment used
to transport the drugs was registered to Aguilera, indicates that Aguilera did not have a minor role.
Therefore, the fact that Aguilera’s cooperation statements were part of the evidence before the
district court when it made its § 3B1.2 minor role determination does not affect the fairness or
integrity of that determination.
The plea agreement in this case is reasonably understood to permit the use of Aguilera’s self-
incriminating statements to determine her sentence guideline range, and the use of those statements
was not a breach of the plea agreement. The use of Aguilera’s cooperation statements did not violate
§ 1B1.8 because the terms of the plea agreement do not prohibit the use of those statements in
sentencing. Moreover, even if the use of Aguilera’s cooperation statements was a plain error
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violation of § 1B1.8, we decline to exercise our discretion to correct the forfeited error because it did
not affect the fairness and integrity of the sentencing determination. For the above reasons we
AFFIRM the sentence imposed by the district court.
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