United States v. Octavio Torres-Rivas , 825 F.3d 483 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1685
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Octavio Torres-Rivas
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: March 14, 2016
Filed: June 9, 2016
____________
Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
____________
BENTON, Circuit Judge.
Octavio Torres-Rivas pled guilty to conspiracy to distribute methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1) and 846. He appeals, claiming that the
government violated the plea agreement by arguing against an acceptance-of-
responsibility reduction, and that the district court1 erred in denying his request for
acceptance of responsibility. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
On July 1, 2014, the government and Torres-Rivas made a plea agreement,
which says:
The United States agrees not to object to a recommendation by the
Probation Office or a ruling of the Court which awards the defendant an
appropriate-level decrease in the base offense level for acceptance of
responsibility. If the offense level in the Presentence Report is 16 or
greater and the Court accepts a recommendation in the Presentence
Report that the defendant receive two points for acceptance of
responsibility, the United States agrees to move for an additional one-
point reduction for acceptance of responsibility for a total of three
points. However, the United States will not be obligated to move for an
additional one-point reduction or recommend any adjustment for
acceptance of responsibility if the defendant engages in conduct
inconsistent with acceptance of responsibility including, but not limited
to, the following a) falsely denies, or makes a statement materially
inconsistent with, the factual basis set forth in this agreement, b) falsely
denies additional relevant conduct in the offense, c) is untruthful with
the United States, the Court or probation officer, or d) materially
breaches this plea agreement in any way.
The agreement also says:
At the sentencing hearing, the United States will be permitted to bring
to the Court’s attention, and the Court will be permitted to consider, all
relevant information with respect to the defendant’s background,
character and conduct, including the conduct that is the subject of this
investigation for which he/she has not been charged up to the date of
this Agreement, and/or which is the basis for any of the counts which
1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
-2-
will be dismissed pursuant to this agreement, as provided by § 1B1.3 of
the Sentencing Guidelines.
The Presentence Investigation Report (PSR), months later, addressed a threat
investigation about two letters to cooperating co-defendants in February 2014 and
August 2014. The PSR says, “Based on threats believed to be made by the defendant
to cooperating defendants and witnesses, it is recommended the defendant receive an
enhancement for obstruction of justice. . . . [C]onduct resulting in an enhancement
under U.S.S.G. § 3C1.1 ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct.”
At sentencing, the court heard testimony about the two letters. The government
argued they show obstruction of justice. The government also claimed that Torres-
Rivas should be denied acceptance of responsibility because of the obstruction of
justice and because he denied relevant conduct about his interaction with co-
conspirators (as a leader or organizer). The district court rejected the obstruction-of-
justice enhancement, based on “enough gaps” in the evidence. The district court also
denied a reduction for acceptance of responsibility, saying “I think he’s a leader,
number one. I think what happened after July 1, 2014 is relevant, as well as some of
what happened prior to July 1. So I’m not going to give . . . acceptance of
responsibility.”
According to Torres-Rivas, the government—aware of the first letter at the
time of the plea agreement (and plea)—broke the terms of the agreement by arguing
against acceptance of responsibility. Regardless, he believes that the district court
should have granted acceptance of responsibility.
I.
This court reviews de novo “issues pertaining to the interpretation and
enforcement of a plea agreement.” United States v. Stobaugh, 420 F.3d 796, 800
-3-
(8th Cir. 2005). “Plea agreements are contractual in nature and should be interpreted
according to general contractual principles.” United States v. E.V., 500 F.3d 747,
751 (8th Cir. 2007). “[W]here a plea agreement is ambiguous, the ambiguities are
construed against the government.” United States v. Andis, 333 F.3d 886, 890 (8th
Cir. 2003) (en banc). “Any promise made by the Government that constitutes a
significant part of the defendant’s inducement or consideration for making the plea
agreement must be fulfilled to satisfy due process.” Stobaugh, 420 F.3d at 800.
Torres-Rivas claims the government had an affirmative duty to recommend a
decrease for acceptance of responsibility and violated that duty by first not arguing
for it, and then by arguing against it. However, any duty is conditional. The
agreement provides that the government would “ move for an additional one-point
reduction for acceptance of responsibility” if “Court accepts a recommendation in the
Presentence Report that the defendant receive two points for acceptance of
responsibility.” Because the PSR had no recommendation for acceptance of
responsibility, the government had no duty to argue for acceptance of responsibility.
See United States v. Borer, 412 F.3d 987, 994-95 (8th Cir. 2005) (holding no breach
of plea agreement where government did not recommend sentence at low end of
guideline range, and plea agreement made such recommendation contingent on the
range “anticipated by the Presentence Report”). Cf. United States v. Gomez, 271
F.3d 779, 781-82 (8th Cir. 2001) (disapproving government’s decision not to
recommend acceptance-of-responsibility reduction where agreement clearly required
it, even if defendant breached plea agreement after signing it).
This case is not like United States v. Mosley, 505 F.3d 804 (8th Cir. 2007),
where the agreement said:
as of the date of this agreement, defendant appears to qualify . . . for
acceptance of responsibility. However, the government shall be free to
contest the adjustment under USSG § 3E1.1(a) should the defendant
subsequently fail to continue to accept responsibility . . . .
-4-
The government there violated the plea agreement by arguing against acceptance of
responsibility. The government became aware of new information that Mosley lied
in some pre-plea statements to police—which predated the plea agreement. Unlike
Mosley, the agreement here does not say that, if the defendant subsequently fails to
accept responsibility, the government may then argue against acceptance of
responsibility. The only condition here to the government’s obligation is that the
government agrees “not to object to a recommendation by the Probation Office or a
ruling of the Court which awards the defendant an appropriate-level decrease in the
base offense level for acceptance of responsibility.” (emphasis added). The probation
office did not recommend acceptance of responsibility, and the court did not award
it. “[T]he language of the plea agreement in the instant case permitted the
Government’s actions at the sentencing hearing.” Stobaugh, 420 F.3d at 801.
II.
“[A] defendant who enters a guilty plea is not entitled to credit for acceptance
of responsibility as a matter of right.” United States v. Shade, 661 F.3d 1159, 1167
(8th Cir. 2011). “Under U.S.S.G. § 3E1.1(a), the burden is on a defendant to show
that he clearly demonstrated acceptance of responsibility.” United States v. Vega,
676 F.3d 708, 723 (8th Cir. 2012). “Entry of a plea of guilty prior to the
commencement of trial combined with truthfully admitting the conduct comprising
the offense of conviction, and truthfully admitting or not falsely denying any
additional relevant conduct for which he is accountable under § 1B1.3 . . . , will
constitute significant evidence of acceptance of responsibility.” U.S.S.G. § 3E1.1,
cmt. n. 3. “Whether the defendant accepted responsibility is a factual question that
depends largely on credibility assessments made by the sentencing court. This Court
gives great deference to the district court’s denial of a request for a reduction for
acceptance of responsibility and reviews the decision for clear error.” Vega, 676 F.3d
at 723.
-5-
Although the district court did not grant the obstruction-of-justice
enhancement, the court had ample evidence to deny acceptance of responsibility. As
Torres-Rivas notes, “[m]ost of the acceptance-of-responsibility inquiry focuses on the
defendant’s conduct through the time he pleads guilty.” United States v. Stapleton,
316 F.3d 754, 757 (8th Cir. 2003). Nonetheless, the district court may look to
defendant’s conduct after the guilty plea. See United States v. Jones, 539 F.3d 895,
898 (8th Cir. 20108) (finding district court did not clearly err when it found Jones’s
denial of association with a witness through his “objections to the presentence
investigation report” inconsistent with acceptance of responsibility). In addition to
the threatening letters, Torres-Rivas denied relevant conduct by multiple objections
to the PSR—including 16 of 23 paragraphs labeled “Offense Conduct,” almost every
paragraph with information from cooperating witnesses (including where he stored
his meth and how much currency a cooperating defendant held for him). The district
court found that “what happened after July 1, 2014 is also relevant,” and “his conduct
was not such that would entitle him to acceptance of responsibility.” This court does
“not substitute our judgment for that of the district court because the district court is
in a better position to assess whether a defendant has accepted responsibility and to
assess the credibility of witnesses.” Id. at 897.
*******
The judgment is affirmed.
______________________________
-6-