United States v. Catala

Rehearing granted, October 25, 2005 for the limited purpose of modifying opinion
MODIFIED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4624
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
VICTOR CATALA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (CR-04-6)
Argued: March 18, 2005 Decided: June 14, 2005
Modified Opinion Filed: October 25, 2005
Before WILKINSON and GREGORY, Circuit Judges, and Frederick P.
STAMP, Jr., United States District Judge for the Northern District
of West Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Stamp wrote the majority
opinion, in which Judge Gregory joined. Judge Wilkinson wrote a
dissenting opinion.
ARGUED: Michael James Elston, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellant. Robert Wayne Nunnally, Norfolk, Virginia, for Appellee.
ON BRIEF: Paul J. McNulty, United States Attorney, Alexandria,
Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
STAMP, District Judge:
The United States appeals the sentence of defendant, Victor
Catala (“Catala”), who pleaded guilty to conspiring to distribute
100 or more kilograms of marijuana in violation of 21 U.S.C. §§ 846and 841(a)(1). At Catala’s sentencing hearing, the district court
determined that only 83.9 kilograms of marijuana were attributable
to the defendant. The district judge granted a three-level
downward departure for acceptance of responsibility absent a
government motion, and also granted the additional two-level
reduction under the safety valve provision, U.S.S.G. §§ 3E1.1 and
2D1.1(b)(6).
The issue before this Court is whether the district court
erred by finding Catala responsible for only 83.9 kilograms when
the defendant pleaded guilty to conspiring to distribute 100 or
more kilograms of marijuana in violation of 21 U.S.C. §§ 846 and
841(a)(1). In addition, we must consider whether the district
court appropriately applied the three-level downward departure
under the now advisory United States Sentencing Guidelines.
I.
As stated above, the defendant Catala entered into a plea
agreement with the United States for conspiring to distribute
marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1), which was
the lesser included offense in Count 1 of an eleven-count
3
indictment. J.A. 54.1 The plea agreement stated that the maximum
penalty for the lesser included offense was a term of imprisonment
of five years, a maximum term of 40 years, a fine of $2 million and
at least four years of supervised release. Id. However, the plea
agreement did not state the amount of marijuana that the government
believed should be attributed specifically to Catala.
At the sentencing hearing, the district court reviewed the
defendant’s plea agreement. The district court stated that to
convict the defendant, the government would have to prove each
essential element of his crime, including, “one, that you willfully
entered into an agreement, two, with one or more other individuals,
and three, to knowingly or intentionally possess with intent to
distribute marijuana.” J.A. 70. The district court did not
mention drug weight as an element of the defendant’s crime.
After enumerating the elements of the defendant’s crime as
charged, the court stated, “Now, I understand [the defendant is]
pleading guilty to something else . . .” J.A. 70. The court then
addressed the term “lesser included offense” as used in the
defendant’s plea agreement:
THE COURT: Now, you all indicate that he’s pleading
guilty to what we call a lesser included offense. I’m
not really sure it’s a lesser included offense. I think
it has more to do with drug weights more than anything
else, because if the government proffers to the Court
that it can’t prove the thousand or more kilograms of
1
Catala was one of seven defendants charged in this
indictment.
4
marijuana but can only prove a hundred or more kilograms
of marijuana, then I’m going to tell him what the maximum
punishment is for that offense, and that’s what he’s
going to be subject to. So I don’t know anything more
about the case other than, you know, what [the
Government] knows and what [defendant’s counsel knows].
But I understand that what he’s going to do is he’s
going to be pleading guilty to the same offense, but in
lieu of it being a thousand or more kilograms, it’s going
to be a hundred or more kilograms. And if that’s the
case, then he would be facing a maximum of 40 years in
prison and a mandatory minimum of five years in prison
and a fine not to exceed $2 million. Is that you-all’s
understanding?
MR. NUNNALLY (Defendant’s Counsel): Yes, sir, Your
Honor. With the further understanding that we are going
to be able to argue the amount of weight at sentencing.
THE COURT: Well, you can always do that. But the point
is, and, Mr. Hurt, you understand that obviously if for
some reason the presentence report comes back and it’s
more than a hundred kilograms of -– in other words, more
than a thousand grams –- kilograms of marijuana, then
he’s only pleading guilty to the lesser charge, correct?
MR. HURT (Government): Yes, sir. That’s the
government’s understanding.
J.A. at 71-72 (emphasis added).
Later in the plea hearing, the defendant admitted that he had
“transported and conspired to transport” to the Virginia peninsula
in excess of 100 kilograms of marijuana, but less than 1000
kilograms of that substance. J.A. 87.
Following the plea hearing, a presentence report was submitted
to the court in which the probation officer described seven cross-
country trips by Catala for the purpose of transporting marijuana
and an additional trip to transport methamphetamine. J.A. 166-68.
5
The probation officer stated that 638 telephone calls were made
between the defendant and several co-defendants. J.A. 166. The
probation officer determined that the scope of the defendant’s
criminal activity included 219.9 kilograms of marijuana and a pound
of methamphetamine, which converted to 1,127.196 kilograms of
marijuana. J.A. 168.
Accordingly, the probation officer recommended a base offense
level of 32. J.A. 184. The probation officer also recommended the
defendant receive three levels for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1. In addition, the probation officer
found that the defendant qualified for the two-level safety valve
reduction pursuant to U.S.S.G. § 2D1.1(b)(6).
The defendant filed written objections to the presentence
report denying certain trips described in paragraphs 33 though 37
of the presentence report, denying that he transported
methamphetamine, and objecting to any finding that the defendant
participated in transporting more than 335 pounds of marijuana.
J.A. 98-100. The defendant also argued that the probation officer
had misconstrued several phone calls as related to the conspiracy,
but which he alleged were only made to family members. J.A. 97.
Several days after his initial objections, the defendant filed
corrections to his objections, the most significant of which
lowered attributable marijuana drug weight from 335 pounds to 175
pounds. J.A. 103.
6
Following the defendant’s objections, the probation officer
amended the presentence report by removing the three-level
adjustment for acceptance of responsibility. However, a two-level
safety valve reduction remained, apparently in error. J.A. 107-08.
Consequently, the probation officer recommended an offense level of
30 and a Guideline range of 97 to 120 months.
At the sentencing hearing, the district court addressed the
plaintiff’s objections to the presentence report and determined
that the government had the burden of proving drug weight by a
preponderance of evidence. J.A. 118. The United States responded
that the defendant had entered into his plea agreement admitting to
conspiracy to possess with intent to distribute more than 100
kilograms of marijuana and that the defendant had repeated this
admission in open court at his change of plea hearing. The
government argued that the defendant’s July 8 letter putting forth
a weight below 100 kilograms should be construed as an abandonment
of acceptance of responsibility because the defendant had abandoned
the drug weight upon which the plea agreement was premised.
The defendant responded that he had raised the issue of drug
weight at the time of the hearing, and that the Court had indicated
that drug weights could always be argued at sentencing. The
defendant argued that challenging drug weight at the sentencing
stage was not the equivalent of abandoning his acceptance of
responsibility.
7
The district court recognized that the defendant pleaded
guilty to a conspiracy involving 100 kilograms or more of
marijuana. However, the Court found that the defendant raised the
issue of drug weight at his plea hearing, and was therefore not
bound by the 100 kilogram base during the sentencing phase. J.A.
140.
Ultimately, the district court found that only 83.9 kilograms
of marijuana could be attributed to the defendant by a
preponderance of the evidence, and concluded that this resulted in
a base offense level of 24. The court rejected the government’s
argument that the defendant failed to accept responsibility by
filing objections to drug weights after pleading guilty to an
offense that included a base-level drug amount. The court found
that the defendant qualified for the safety-valve reduction and
calculated his offense level to be a 19. The district court then
determined that the safety valve reduction allowed the court to
sentence below the statutory minimum and imposed a sentence of 13-
months imprisonment and a term of three years supervised release.
The government objected to the court’s ruling on the grounds
that the court had, in effect, set aside the defendant’s guilty
plea as well as his admission at the plea hearing to participating
in a conspiracy to distribute 100 kilograms or more of marijuana.
The United States filed a timely notice of appeal.
8
II.
This Court reviews a district court’s drug quantity
determination for purposes of sentencing for clear error. United
States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). Where a
challenge to a defendant’s sentence implicates questions of both
law and fact, questions of law are reviewed de novo, questions of
fact are reviewed for clear error, and mixed questions of law and
fact are reviewed under a standard that gives due deference to the
district court. United States v. Nale, 101 F.3d 1000, 1003 (4th
Cir. 1996).
On appeal, the government argues that the district court
erred by disregarding the drug amount included in the indictment to
which the defendant pleaded guilty at his Rule 11 colloquy. In
addition, the government contends that the district court erred
when it found that the defendant had accepted responsibility and
qualified for a three-level adjustment for timely acceptance of
responsibility. We address each of the government’s arguments in
turn.
III.
Disputed facts relevant to a defendant’s sentence are properly
presented to the district court for an independent resolution. See
U.S.S.G. § 6A1.3(b). Where drug weights are justifiably disputed,
the government bears the burden of proving by a preponderance of
9
the evidence the quantity of drugs for which a defendant should be
held accountable at sentencing. United States v. Goff, 907 F.2d
1441, 1444 (4th Cir. 1990)(overruled by statutory amendment on
other grounds). In essence, the government contends that drug
weights were not justifiably disputed in this action because the
defendant admitted to a felony that included as an essential
element a minimum drug quantity. See Apprendi v. New Jersey, 530
U.S. 466 (2000)(finding drug quantities to be an element of an
offense that must be alleged in an indictment and proved beyond a
reasonable doubt in order to subject a defendant to a period of
imprisonment longer than the maximum sentence provided by the
statute).
Following Apprendi, indictments charging conspiracy to commit
a § 841 offense under § 846 commonly specify drug quantities for
which individual members of a conspiracy are responsible. However,
a defendant’s guilty plea to a conspiracy indictment alleging
quantity, but not ascribing any specified quantity to the
individual defendant, does not automatically render the defendant’s
guilty plea an admission of the quantity charged in the conspiracy
count. United States v. Gilliam, 987 F.2d 1009, 1014 (4th Cir.
1993). Further, a defendant’s reservation of his right to
challenge drug weight for sentencing purposes is not necessarily
inconsistent with a guilty plea or a valid plea agreement. See
Gilliam at 1013-14.
10
In Count 1 of the indictment charged against defendant Catala,
the government included six separate offenses of conspiracy with
intent to possess or distribute various quantities of marijuana,
cocaine and methamphetamine. Count 1 also contained a section
titled “Overt Acts” in which the United States listed specific drug
amounts attributable to each defendant in the conspiracy.2
However, the attributable drug weight listed in the overt acts
section is vague at best, stating certain amounts generally as
“quantities” rather than giving specific weights in some instances,
failing at times to specify between amounts attributable to Catala
and his co-conspirators, and giving overlapping dates that could
represent a single trip made by the defendant from Albuquerque to
the Virginia peninsula (e.g., Fall of 2001, November 2001, and
November 28, 2001). J.A. 38-39.
The plea agreement is more specific, charging the defendant
with the “lesser included offense” of “conspiracy to possess with
intent to distribute more than 100 kilograms of marijuana.” J.A.
2
Victor Catala is connected with quantities of illegal
substances in seven paragraphs of the indictment as follows: (1)
paragraph 69 states Catala transported 75 pounds of marijuana in
the “Fall of 2001;” (2) paragraph 73 states Catala transported 60
pounds of marijuana in “November 2001;” (3) paragraph 76 states
Catala and co-conspirator Anthony Pacheco transported a “quantity
of marihuana [sic] in separate vehicles” on November 28, 2001; (4)
paragraph 79 states Catala transported one pound of methamphetamine
in January 2002; (5) paragraph 81 states Catala transported “a
quantity of marihuana [sic]” on January 16, 2002; (6) paragraph 83
states Catala transported 50 pounds of marijuana in February 2002;
and (7) Catala transported a “quantity of marihuana [sic]” on
February 21, 2002.
11
54. The plea agreement further states that the defendant “admits
the facts announced at the Rule 11 proceeding and agrees that those
facts establish guilt of the offense charged beyond a reasonable
doubt.” J.A. 55. However, the plea agreement does not identify or
ascribe any specific amount of marijuana attributable to Catala,
nor does the agreement reference the overt act section of the
indictment.
As stated earlier, the defendant at his Rule 11 colloquy
specifically reserved his right to contest drug weight at his
sentencing. At that time, the United States did not object. The
defendant later filed written objections to drug amounts listed in
his presentence report, thus preserving his earlier reservation
regarding drug weight. Accordingly, the district court was within
its discretion when it considered drug weight at the defendant’s
sentencing hearing to find that only 83.9 kilograms of marijuana
were attributable to the defendant for sentencing purposes.
Accordingly, we disagree with the government’s contention that
the district court erred by allowing a three-level decrease for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. To the
contrary, we believe that the district court’s decision to award a
downward departure was justified. For instance, the presentence
report stated that Catala had been truthful and cooperative with
the government after his arrest and this was not contested by the
government. Moreover, the government endorsed the defendant’s
12
position at the plea conference, stating that the defendant “has
been cooperative in all regards.” J.A. 66.
The government’s only ground for denying the defendant his
acceptance of responsibility is that Catala filed objections to the
presentence report and argued drug weights at his sentencing, thus
allegedly abandoning his plea agreement. See J.A. 118-20. As
Gilliam makes clear, even where a defendant has signed a plea
agreement that contemplates a minimum sentence and refers to an
indictment alleging his involvement in a conspiracy for a base-
level drug amount, a defendant may argue at sentencing that
attributable drug weight is less than the statutory minimum.
Gilliam, 987 F.2d at 1014. Accordingly, we cannot say that the
court clearly erred in concluding that Catala accepted
responsibility by admitting he had knowingly transported 83.9
kilograms of marijuana, see United States v. Pauley, 289 F.3d 254,
261 (4th Cir. 2002)(standard of review), modified, 304 F.3d 335,
cert. denied, 537 U.S. 1178 (2003), or by finding that he met the
criteria for the safety valve reduction.
Once the district court found that the defendant satisfied the
criteria for the safety valve reduction under § 5C1.2, the district
court was free to impose a sentence without reference to the
mandatory minimum term of imprisonment and supervised release of
§ 841(b)(1)(B). Accordingly, the sentence imposed by the court was
within its authority.
13
IV.
As a final matter, this Court must consider whether the
district court abused its discretion by awarding a third-level
adjustment pursuant to U.S.S.G. § 3E1.1(b) absent a government
motion. Under the Feeney Amendment, Pub. L. No. 108-21, § 401
(Apr. 30, 2003), a district court may grant a third-level
adjustment “upon a motion of the government.” See U.S.S.G.
§ 3E1.1(b). Because Catala’s sentence was determined after the
Feeney Amendment, the district court was bound by the plain
language of the Guidelines, and should not have awarded a third-
level adjustment for timely acceptance of responsibility without a
motion from the government.
However, in the period between the district court’s sentencing
of Catala and this Circuit’s review on appeal, the Supreme Court
decided United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005),
severing and excising the “mandatory” provision from the
Guidelines, and making the Guidelines “essentially advisory.”
Booker at 756-57. Further, Booker dictates that lower courts “must
apply . . . the remedial interpretation of the Sentencing Act . . .
to all cases on direct review.” Id. at 769. Accordingly, we no
longer construe § 3E1.1(b) to require a government motion before a
district court can award a third-level adjustment, and must review
the district court’s determination under this new remedial
interpretation of the Guidelines. By this we mean that a district
14
court may, in effect, grant a third level without a government
motion by imposing a non-Guidelines sentence after following the
steps set forth in Hughes. This is the same as a Guidelines
sentence one level lower than the advisory Guidelines range based
upon a factor listed in 18 U.S.C. § 3553(a).
Even after Booker, whether a government motion (or lack of
motion) for a third-level adjustment remains an important factor
when determining whether to award the third-level adjustment. See
id. at 767 (sentencing court still required to consult the
Guidelines and take them into account when sentencing). However,
a district court may also make an independent determination based
on whether the defendant has sufficiently assisted “by timely
notifying authorities of his intention to enter a plea of guilty,
thereby permitting the government to avoid preparing for trial and
permitting the government and the court to allocate their resources
efficiently.” See U.S.S.G. § 3E1.1(b). In certain circumstances,
a court should consider the rationale behind the government’s
refusal to make a motion for the third-level adjustment to
determine whether such rationale falls within the parameters of
§ 3E1.1(b). See United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005)(court must consider the Guideline range as well as other
relevant factors set forth in the Guidelines and 18 U.S.C. §
3553(a)).
In this case, we are satisfied that the district court
15
considered the defendant’s timely acceptance of responsibility in
light of § 3E1.1(b) when awarding the third-level adjustment.
Because the advisory nature of the Guidelines would apply on
remand, this Court finds that the lack of a government motion does
not invalidate the district court’s pre-Booker decision to award
the third-level adjustment. See Booker at 769 (Booker applies to
all cases on direct review). Accordingly, this Court will not
remand this action based on the lack of a government motion. See
United States v. Young, 470 U.S. 1, 15 (1985)(discretionary remand
should not be exercised unless it seriously affects the fairness,
integrity or public reputation of the judicial process).
V.
For the reasons stated above, the judgment of the district
court is
AFFIRMED.
16
WILKINSON, Circuit Judge, dissenting:
The district court evidently sentenced Catala as if he had
admitted responsibility for only an unspecified quantity of
marijuana. See 21 U.S.C. §§ 841(b)(1)(C), 846 (2000). Thus the
district court ignored the sentencing range specified in the plea
document, which was based on “more than 100 kilograms of
marijuana,” see § 841(b)(1)(B)(vii), and attributed only 83.9
kilograms of marijuana to appellee as the predicate for his
sentence.
The job of a district court during the plea hearing is to
explain to the defendant the meaning of the terms in the plea
agreement, not to alter those terms. See Fed. R. Crim. P.
11(b)(1). The district court has no authority to depart from the
plain meaning of the agreement negotiated between the parties and
memorialized in the plea document. See United States v. Howle, 166
F.3d 1166, 1168-69 (11th Cir. 1999). Unfortunately, the district
court embarked on just such misadventure here when it assured the
defendant that he could “always” dispute “the amount of weight” at
a later stage, notwithstanding the specific drug quantity mentioned
in the plea. The defendant was thus misled, through no fault of
his own, into believing that he had reserved an unfettered right to
challenge the drug weight on which his sentence would be based.
The majority is quite right to suggest that the defendant was
misled. The majority is entirely wrong, however, to enforce the
17
terms of the misrepresentation. For it is clear from the record
that the government never intended to offer defendant an unfettered
right to challenge drug weight, only the limited ability to contest
weight between 100 and 1,000 kilograms, in exchange for his guilty
plea. The plea document, after all, specified the lower end of
this weight range, and the government confirmed at the plea hearing
its “understanding” that if “the presentence report [indicates]
more than [1,000 kilograms] of marijuana, then [appellee is] only
pleading guilty to the lesser charge” of more than 100 kilograms.
Moreover, the district court did nothing to disparage this
interpretation of the plea when it noted that the sentence would be
“based on the hundred kilograms or more of marijuana and not the
thousand kilograms or more,” and when it described the offense
during the colloquy as “conspiracy to possess with intent to
distribute more than a hundred kilograms of marijuana.” Based on
such statements, the government’s belief that Catala was admitting
responsibility for more than 100 kilograms, and reserving only the
right to dispute just how much more, was entirely reasonable.
Appellee and the government were thus proceeding at cross
purposes; appellee believed that his acceptance of the plea deal
did not waive his right to contest drug weight generally, while the
government believed that only amounts above 100 kilograms were fair
18
game after the plea was entered. In these circumstances, no valid
agreement could have been created in the first place.1
Plea bargains are a species of contract. See United States v.
Bownes, No. 03-3016, 2005 U.S. App. LEXIS 7103, at *3 (7th Cir.
2005); United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).
Courts have therefore applied a variety of contract law doctrines
to void or modify plea agreements. See, e.g., United States v.
Williams, 198 F.3d 988, 993-94 (7th Cir. 1999); United States v.
Lewis, 138 F.3d 840, 841-43 (10th Cir. 1998) (permitting rescission
of plea on the basis of “mutual mistake”); United States v. Wood,
378 F.3d 342, 349 and n.3, 350 (4th Cir. 2004) (ordering “specific
performance” of constructively amended plea agreement). One
commonplace of contract law is that there must be a meeting of the
minds as to all essential terms for a valid agreement to be
created. See 2 Murray on Contracts § 48 (Lexis 2001). Here there
was no such meeting of the minds concerning the weight of drugs
admitted in the plea; quite the opposite, the parties’
understandings of that issue were mutually exclusive.
1
Catala argues that the government should be held to his
understanding of the plea agreement, which he says the district
court endorsed with statements such as “you can always” argue the
amount of weight. When the terms of a plea agreement have been
orally modified during plea proceedings, we have sometimes enforced
the modifications. To do so, however, we have required either
ambiguity in the plea document, see United States v. Gilliam, 987
F.2d 1009, 1011 (4th Cir. 1993), or acquiescence by the government
in the substance of the modification, see United States v. Wood,
378 F.3d 342, 350 (4th Cir. 2004). Neither of these circumstances
is present here.
19
Plea agreements have been invalidated when there is “doubt
whether any ‘meeting of the minds’ ever resulted from plea
negotiations.” Houmis v. United States, 558 F.2d 182, 183 (3d Cir.
1977); see also United States v. Bradley, 381 F.3d 641, 648 (7th
Cir. 2004). Applying this principle here, I see no option but to
hold the plea agreement void ab initio. Although the plea document
is clear on its face, the district court led the defendant to
believe that he had an absolute right to dispute drug weight. I
would therefore vacate the judgment and remand accordingly.2
2
Because I would dispose of the case in this manner, I express
no opinion on whether the district court was correct to grant
appellee a third level decrease in the absence of a government
motion.
20