United States v. Bruce C. Pompey ( 1997 )

United States Court of Appeals
for the eighth circuit
___________
No. 96-4135
___________
United States of America, *
*
Appellee, * Appeal from the United
States
* District Court for the
Western
v. * District of Missouri.
*
Bruce C. Pompey, *
*
Appellant. *
___________
Submitted: June 10, 1997
Filed: August 1, 1997
___________
Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,
Circuit
Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Bruce C. Pompey appeals from the sentence imposed on him
following his plea of guilty to a charge of conspiring to
possess
heroin with intent to distribute it, in violation of 21 U.S.C.
§§
841(a)(1), 841(b)(1)(C), and 846. Mr. Pompey believes that the
district court erred in increasing his offense level by two
levels
for obstructing justice pursuant to U.S.S.G. § 3C1.1. His plea
agreement with the government stated that "[t]he parties agree
that
there are no adjustments to be made for obstruction, pursuant
to
§ 3C1.1," and Mr. Pompey maintains, and the government admits,
that
the
government provided information to the probation officer
preparing
the presentence report that Mr. Pompey put pressure on his
sister
not to testify against him, thus furnishing the basis for the
district court's upward adjustment. Mr. Pompey characterizes
the
government's action as a breach of the plea agreement and asks
for
its specific enforcement, either by remanding for resentencing
without the upward adjustment or by imposing a specific
sentence
ourselves. We affirm the district court.(1)
We begin our consideration of this case with the
observation
that the portion of the plea agreement involved in this case
does
not promise anything. The words are declaratory, not
promissory.
They might simply be, and are probably best construed as,
statements
of law, and, moreover, they are followed immediately by the
declaration that "[t]he defendant understands [that] these
calculations and estimates are agreements between the parties
only
and that the Court is not bound by them."
Mr. Pompey argues, however, that the words fairly imply a
promise on the government's part not to seek an upward
adjustment in
his sentence for an obstruction of justice. The government
seemingly agrees with this position, but believes that it
discharged
its obligation by not requesting the upward adjustment at the
sentencing hearing. Mr. Pompey, however, evidently maintains
that
the government's obligation under the agreement extended to the
point that it was not supposed to supply information to the
court
that might support a finding that he obstructed justice.
We are not disposed to imply such a promise from the words
of
the plea agreement, not just because we think, although we do,
that
it would be difficult to argue that they will support such an
implication, but also because it is not to be supposed that
parties
to a plea agreement would contract to keep information relevant
to
sentencing from the court. We therefore decline to imply the
kind
of promise that Mr. Pompey
(1) The Honorable D. Brook Bartlett, Chief Judge, United
States
District Court for the Western District of Missouri.
-2-
believes the words of his plea agreement will support. Even if
we
were to do so, we would not be inclined to enforce such a
promise
specifically, it being contrary to public policy if not to law,
and
the most relief that we might give Mr. Pompey would be to allow
him
to withdraw his guilty plea, a remedy that he has specifically
eschewed before the court.
Mr. Pompey also argues that the conduct in which he
engaged did
not amount to an obstruction of justice. U.S.S.G. § 3C1.1
provides
for a two-level adjustment to the offense level "[i]f the
defendant
willfully obstructed or impeded, or attempted to obstruct or
impede,
the administration of justice during the ... prosecution ... of
the
instant offense." In this case, Mr. Pompey wrote several
letters to
his sister urging her not to testify against him, and
indicating
that he could not be convicted without her testimony. Mr.
Pompey
points out correctly that he made no threats and that in United
States v. Emmert, 9 F.3d 699, 704-05 (8th Cir. 1993), cert.
denied,
513 U.S. 829 (1994), we upheld denial of an adjustment for
obstruction of justice when the defendant had admonished a
government witness to "stay strong" and "be quiet." But we did
so
because we believed that the sentencing court correctly
concluded
that the defendant's statement was not sufficiently unambiguous
to
warrant an adjustment. Mr. Pompey's letters, in contrast, are
hardly ambiguous. In them, he repeatedly urges his sister and
coconspirator Alicia Pompey not to testify against him. We
think
that this is a clear attempt to impede her testimony and thus
impede
the administration of justice. The public is entitled to the
truthful testimony of citizens who witness crimes, and Mr.
Pompey's
letters can easily be read as encouraging his sister to make
herself
unavailable when her testimony was needed.
Mr. Pompey argues that he did no more than a lawyer might
have
done in advising a client to invoke her Fifth Amendment right
to
remain silent. It is a sufficient answer to this argument,
although
there are others as well, that one of Mr. Pompey's suggestions
was
that his sister plead guilty "but don't come to trial against
us."
In such
-3-
a circumstance, having already pleaded guilty, Ms. Pompey would
no
longer be entitled to the protection of the Fifth Amendment.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-