United States v. Perez-Campos

F I L E D
United States Court of Appeals
Tenth Circuit
APR 14 2003
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-6238
v. (D.C. No. 01-CR-01-116-T)
(W. District of Oklahoma)
ADRIAN PEREZ-CAMPOS,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
On March 6, 2002, Adrian Perez-Campos pled guilty to one count of
conspiracy to possess with intent to distribute cocaine, a violation of 21 U.S.C.
§ 846, and was sentenced to ninety-seven months’ imprisonment and three years’
supervised release. In his written Plea Agreement, Perez-Campos waived his
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
right to appeal his sentence, provided the sentence fell within or below the
applicable Guideline range. Notwithstanding the waiver, Perez-Campos appeals
his sentence, arguing that (1) the district court erred in calculating the drug
quantity attributable to him, and (2) the district court erred in denying his request
for a two-level reduction for being a minor participant in the conspiracy. He
contends that we should not enforce his appeal waiver because the government
breached the Plea Agreement at sentencing. In response, the government asserts
that Perez-Campos had previously violated the Agreement, thus vitiating its
responsibilities under the Agreement, but suggests we remand to the district court
for a hearing on the issue of whether a breach occurred. Because there is a
factual dispute about whether either party breached the Plea Agreement, we
remand to the district court for further proceedings.
I
We generally enforce a defendant’s knowing and voluntary waiver of the
statutory right to appeal his sentence. United States v. Atterberry, 144 F.3d 1299,
1300 (10th Cir. 1998). Perez-Campos does not assert that his guilty plea was
involuntary or unknowing. Moreover, we have reviewed the record, which shows
that the district court conducted a thorough hearing, and Perez-Campos
voluntarily waived his right to appeal.
Perez-Campos argues that we should not enforce the waiver provision of
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his Plea Agreement here because the government breached the Agreement at
sentencing. “[A] waiver provision may be unenforceable if the government
breaches the terms of the Plea Agreement.” United States v. Guzman, 318 F.3d
1191, 1195 (10th Cir. 2003). Specifically, Perez-Campos contends that the
government breached the Agreement the moment it asked the district court to
consider whether he was entitled to credit for acceptance of responsibility, in
contravention of his expectation that the government would recommend a three-
point reduction. In response, the government claims that Perez-Campos breached
the Plea Agreement first, thereby vitiating the Agreement.
The written Plea Agreement provided that “defendant should receive credit
for acceptance of responsibility, § 3E1.1(a) & (b) if he complies with the plea
agreement.” (1 R. Doc. 89 at 3.) Perez-Campos’s responsibilities under the Plea
Agreement included waiving his appeal rights and full cooperation with the
United States, but he explicitly reserved the right to argue drug quantities at
sentencing, and also the right to challenge his role in the offense. Based upon the
objections to the presentence report raised by Perez-Campos in relation to the
drug quantity attributable to him, however, the government asserted at sentencing
that “the defendant has gone beyond merely arguing and his right to argue drug
quantities, and . . . we do believe that the acceptance of responsibility is a serious
issue now raised based upon these objections.” (Sent. Tr. at 4–5.) Later in the
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hearing, the government stated that it appeared as if Perez-Campos “denied every
single allegation in the presentence report, which does call into question whether
he has accepted responsibility.” (Id.) Addressing whether Perez-Campos was
entitled to the reduction for acceptance of responsibility, the district court stated:
Attributable drug amounts were expressly reserved by him in his plea
agreement and, as well, in the proceeding in which he plead guilty,
and I think that, under those circumstances and under all of the
circumstances before the Court now, the acceptance of responsibility
should not be taken away from him, and given every benefit of every
doubt, as he has been in the attributable drug amounts, I think that
fairness and justice will best be served by not denying him his
acceptance under those circumstances.
(Id. at 33-34.)
In Guzman, we recently concluded that “if the pleadings reveal a factual
dispute on the issue of breach [of a plea agreement], the district court must hold a
hearing to resolve the factual issues.” 318 F.3d at 1196. The facts in Guzman are
substantially identical to the instant case insofar as the defendant sought to appeal
his sentence notwithstanding his waiver, on the ground that the government
breached the Plea Agreement at sentencing. Similarly, the government, in
response, claimed that its actions were justified because Guzman had previously
breached the Agreement. Id. at 1196. In remanding to the district court, we held
that “the government may not unilaterally declare a breach of a plea agreement; a
court must hold a hearing and make a finding that the defendant breached the
agreement before the government is released from its obligations under the
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agreement.” Id. Here, as in Guzman, the district court did not hold a hearing to
determine whether either party breached the Plea Agreement, and thus we
remand. 1
On remand, the court should hold a hearing to address whether the Plea
Agreement had been violated by either Perez-Campos or the government. See id.
at 1198. We remind the court that “it has the discretion to consider any relevant
evidence, even if it was not introduced in the initial sentencing proceedings.” Id.Were the court to conclude that Perez-Campos did in fact breach the Plea
Agreement, the court need not determine whether the government later breached
the Agreement. See id. Barring waiver, of course, the government might choose
to reinstate prosecution. ( See 1 R. Doc. 89 ¶ 13.) However, if the court
determines that Perez-Campos did not breach the agreement, it must then decide
whether the government’s sentencing recommendations did. See Guzman, 318
F.3d at 1198. Were this to be the case, the court “must decide whether [Perez-
1
We recognize that any breach by the government may be claimed to be
harmless given that the district court nevertheless credited Perez-Campos with the
three-point reduction. In Guzman, however, we concluded that the defendant was
entitled to a hearing on the question of whether either he or the government
breached the Plea Agreement “regardless of the degree to which the government’s
recommendations prejudiced the sentencing judge.” 318 F.3d at 1198; see also
United States v. Keresztury, 293 F.3d 750, 756 (5th Cir. 2002) (“When we
scrutinize the government’s conduct to determine whether it manifested an
exercise of its prerogative to void the plea agreement, our objective is to discover
whether the defendant’s waiver of his right to appeal remains effective, not
whether resentencing is required.”).
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Campos] should be resentenced under conditions where the government fulfills
the promises it made in the Plea Agreement (i.e., specific performance), or
whether he should be allowed to withdraw his guilty plea.” Id.II
For the foregoing reasons, we REMAND to the district court with
instructions to VACATE Perez-Campos’s sentence and for further proceedings
consistent with this opinion.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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