United States v. Maurice Davis , 761 F.3d 713 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1978
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAURICE DAVIS,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:11-cr-00063 — Charles N. Clevert, Jr., Judge.
ARGUED MAY 29, 2014 — DECIDED AUGUST 1, 2014
Before BAUER, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Maurice Davis pled guilty to conspiracy
to distribute crack cocaine as part of a written plea agreement
with prosecutors. In return, the government agreed to provide
various sentencing recommendations to the district court. On
appeal, Davis claims that the statements made by the government
ran counter to the agreed-to recommendations. Davis maintains
that this alleged breach allows him to withdraw his guilty plea
altogether. However, since Davis received every benefit promised
2 No. 13-1978
to him in the plea agreement, we see no reason to rescind it. We
affirm the decision of the district court.
I. BACKGROUND
On March 15, 2011, a grand jury indicted Davis, along with
five others, for one count of conspiracy to distribute 280 or more
grams of crack cocaine between 2008 and 2010, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Later that year, the
United States Attorney charged Davis in a one-count information
for conspiracy to distribute 28 or more grams of crack cocaine
between 2008 and 2010, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 846. That same day, Davis and the government
entered into a written agreement, which stated that Davis would
plead guilty to the charge set forth in the information and waive
prosecution by indictment.
In turn, the government would dismiss the indictment and
provide several sentencing recommendations. The government
would recommend that: (1) “the relevant conduct attributable
to the defendant is at least 196 grams but less than 280 grams
of a mixture and substance containing cocaine base in the form
of crack cocaine, a Schedule II controlled substance”; (2) an
applicable base offense level of 30; (3) a two-level decrease for
acceptance of responsibility along with an additional one-level
decrease, if available, for Davis’s timely notice of his intention
to plead guilty; (4) a sentencing recommendation at the “low
end of the applicable sentencing guideline range, as determined
by the court.” The Presentence Report (“PSR”), incorporating
the government’s recommendations, assigned a total offense level
of 27 (a base level of 30 minus a three-level decrease) resulting
in a sentencing range of 130–162 months.
No. 13-1978 3
Davis’s efforts to withdraw his guilty plea began in early 2012,
but was complicated by various changes in his representation.
In February, his initial counsel sought to withdraw and was
replaced. In August, Davis’s new counsel also moved to withdraw
from representation but was denied by the district court. In
September, Davis and his new counsel filed separate motions
to withdraw his guilty plea. The court then allowed Davis, upon
his own motion, to proceed pro se; his attorney then served as
his standby counsel. In an evidentiary hearing, Davis contended
that he was not fully informed when he pled guilty and that there
was enough evidence to prove his innocence. The district court
granted Davis’s request to proceed pro se but denied all motions
to withdraw his guilty plea. Sentencing commenced that same
day.
At sentencing, Davis continued to deny all offense conduct
attributed to him by the PSR and disputed its proposed sentencing
guideline range. In response, prosecutors alleged that Davis’s
objection ran afoul of what he stated in his earlier proffer
agreement. And according to the plea agreement, “[i]f the
defendant and his attorney have signed a proffer letter in
connection with this case, then the defendant further
acknowledges and understands that he continues to be subject
to the terms of the proffer letter.”
The court accepted the request of the prosecution to compare
Davis’s statements made in his objection to those in his proffer
agreement. The prosecutor noted that Davis had admitted his
guilt in the proffer statement and his current objection contradicted
that admission. The prosecutor further asserted that the PSR was
incorrect and that the drug weight attributable to Davis should
be 2.8 kilograms—roughly ten times what was stipulated in the
4 No. 13-1978
plea agreement—supporting a new base offense level of 36 and
a new sentencing range of 324–405 months. Nevertheless, the
government stood by its agreement to attribute 196–280 grams
to Davis as relevant conduct; accordingly, the government
maintained that 252 grams of crack cocaine was a conservative
and appropriate estimate given the government’s report. Davis
objected to the 252-gram figure and, in response, the government
alleged that he had breached the plea agreement and sought to
pursue a higher sentence. The district court ordered the
government to provide further documents pertaining to drug
weight and opted to reconvene the sentencing hearings at a later
date.
The government filed a revised version of the offense, which
cited six unnamed sources of information—along with Davis’s
proffer statement—suggesting that Davis conspired to distribute
up to 2.148 kilograms of crack cocaine. Sentencing then resumed
on December 5, 2012. Over the following weeks, Davis filed
responses attacking the credibility of the government witnesses’
testimony.
The last day of sentencing was no less chaotic than the first.
In addition to further dispute as to the applicability of witness
testimony and another unsuccessful pro se motion to vacate the
plea, the government admitted an internal calculation error that,
if corrected, would have placed the relevant conduct attributable
to Davis at 512 grams of crack cocaine. In order to move the case
forward, the government agreed to set its recommendations in
accordance with the original plea agreement—a weight of 196–280
grams, a guideline sentence range of 130–162 months, and a 120-
month sentence.
No. 13-1978 5
The court’s findings and sentence corresponded with these
recommendations.
II. ANALYSIS
The sole issue before us is whether the government breached
its plea agreement with Davis. We must first determine whether
or not this issue was forfeited in the district court for failure to
object, which would limit our review to plain error. Since we
find that Davis adequately objected and therefore preserved this
issue on appeal, we review the plea agreement and any alleged
breach therein under general contract principles. United States
v. Diaz-Jimenez, 622 F.3d 692, 694 (7th Cir. 2010). In conducting
our review, “we interpret a plea agreement based on the parties’
reasonable expectations and construe ambiguities against the
government as the drafter.” United States v. Munoz, 718 F.3d 726,
729 (7th Cir. 2013). In making this determination, we “must
examine whether there has been a substantial breach of the plea
agreement, in light of the parties’ reasonable expectations upon
entering the agreement.” United States v. Schilling, 142 F.3d 388,
395 (7th Cir. 1998) (internal quotations and citations omitted).
If the government does break its promise, the maximum relief
is allowing the defendant to withdraw his plea and the minimum
remedy is specific performance and resentencing by a different
judge. Diaz-Jimenez, 622 F.3d at 694.
Davis alleges three separate instances on which the government
violated the plea agreement. First, the government alleged that
Davis was responsible for 2.8 kilograms of crack cocaine and
the actual offense level ought to have been 36, as opposed to what
was enumerated in the plea agreement (a base sentencing level
of 30 and less than 280 grams of cocaine). This in turn led to the
6 No. 13-1978
government’s filing of a revised version of the offense that
suggested Davis was responsible for conspiring to distribute a
higher amount of narcotics than agreed to in the plea agreement.
Davis makes this argument notwithstanding the fact that the
government accepted the quantity set out in the plea agreement
and honored its sentence recommendation.
There was a great deal of confusion at Davis’s sentencing
hearing, due in large part to his insistence that the drug weight
and his role in the offense enumerated in the PSR were incorrect.
The recommended quantity and offense level contained in the
plea agreement represented a negotiated figure based on Davis’s
cooperation and acceptance of responsibility. Yet Davis insisted
that the sum of the case against him was “tainted” evidence and
that the “government ha[d] no sufficient evidence to prove the
guideline level.” The government, believing that Davis had breach-
ed his earlier proffer statement, sought to introduce the statement
to rebut this assertion. This in turn led to the introduction of a
higher quantity of drugs attributable to him.
But the government, throughout the hearing, honored its
commitment to recommend a quantity lower than 280 grams.
Cf. Diaz-Jimenez, 622 F.3d at 696 (prosecutor’s statement that the
least amount is that which was bargained for in the plea agreement
but that “a larger sentence could be appropriate” is “a serious
breach”). And Davis received the full benefit of the plea
agreement, despite the government’s initial under-calculation
of the drug quantity. See United States v. Feichtinger, 105 F.3d 1188,
1191 (7th Cir. 1997) (“If the government, in effect, does a little
less than it promised, but actually does something which may
be more likely to yield good results for a defendant, then it has
not breached its end of a plea agreement.”). The government,
No. 13-1978 7
while acknowledging that it had under-calculated the quantity
of drugs attributable to Davis, nonetheless repeatedly stood by
its position that he be sentenced in accordance with the plea
agreement. See United States v. Salazar, 453 F.3d 911, 914–15 (7th
Cir. 2006) (no substantial breach when the government recom-
mended the amount in the plea agreement despite referring to
the defendant as a “cold-blooded killer” at sentencing); United
States v. Rachuy, 743 F.3d 205, 209 (7th Cir. 2014) (“The government
honored its obligation in that it never advocated for a higher
sentence” and “on numerous occasions, recommended that
Rachuy receive the agreed-upon … sentence.”). Moreover, Davis’s
proposed remedy, that the plea agreement be rescinded, would
possibly subject him to a greater sentence. The fact remains that,
despite all of the confusion regarding the drug quantity following
Davis’s objections, the government recommended and Davis
received exactly what was written in the plea agreement.
Accordingly, we do not find a breach warranting rescission of
the agreement.
III. CONCLUSION
Davis has failed to demonstrate a substantial violation of the
plea agreement. He received the full benefit of the plea agreement
and the government adhered to the terms therein. Accordingly,
we AFFIRM the decision of the district court.