United States v. David Brannum

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30126
Plaintiff-Appellee, D.C. No.
1:18-cr-00116-BLW-1
v.
DAVID LEE BRANNUM, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted May 8, 2020**
Portland, Oregon
Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA, *** District
Judge.
David Brannum pleaded guilty to violating 26 U.S.C. § 7206(2) by assisting
in the preparation of a fraudulent tax return. The plea agreement stipulated that “the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
total tax loss to the Government . . . was $101,555.00.”1 The presentence report
(“PSR”), relying on this figure, recommended a below-Guidelines sentence of
probation only, with a special condition of home confinement.
The government’s sentencing memorandum, however, contended “that [Mr.
Brannum] actually caused a tax loss of approximately $3.3 million” and sought a
sentence of 21 months of imprisonment. After Brannum objected, the district court
found that the government did not breach the plea agreement by citing the higher
loss figure but stated it would not consider that amount in sentencing. The court
then sentenced Brannum to a below-Guidelines term of 12 months and one day of
incarceration. Brannum timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291.
Because “the only issue is whether the prosecutor’s statements as a matter of
law constituted” a breach of the plea agreement, our “review is de novo.” United
States v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). “Plea agreements are
contractual by nature and are measured by contract law standards.” United States v.
Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002). We “enforce the literal terms of
the plea agreement, but construe ambiguities in favor of the defendant.” Id. (cleaned
up).
1
The $101,555.00 figure was also included in the “Factual Basis” for the
“Nature of the Charges,” a subsection that provided general background information
about Brannum’s accounting work.
2
The tax-loss stipulation in the plea agreement is unambiguous. The
government’s reliance on a higher figure at sentencing was a breach of that
agreement. We reject the government’s contention that the stipulation about “total
tax loss” referred only to so-called “criminal” losses for Guidelines purposes, not
the actual total “civil” loss of tax revenue, which the government contends could be
used in applying the 18 U.S.C. § 3553(a) factors. The plea agreement, however,
makes no such distinction, referring to the stipulated figure as the “total tax loss to
the Government.” Nor did the government’s reservation in the plea agreement of a
right to allocute in favor of a Guidelines sentence allow it to do so in a manner at
odds with other express stipulations. See Franco-Lopez, 312 F.3d at 986–88, 991–
92.
The government did not cure the problem by asking the district court to
disregard the larger tax-loss figure if it found breach. Only “some breaches may be
curable upon timely objection,” such as a “mere slip of the tongue or typographical
error.” United States v. Heredia, 768 F.3d 1220, 1235 (9th Cir. 2014) (first quoting
Puckett v. United States, 556 U.S. 129, 140 (2009)) (second quoting United States
v. Alcala-Sanchez, 666 F.3d 571, 576 (9th Cir. 2012)). This case involved a more
serious breach. Although the government’s sentencing memorandum noted “the
agreed-to restitution figure of $101,550.00,” it also cited the $3.3 million figure in
support of its recommendation of a sentence harsher than that recommended in the
3
PSR. At the sentencing hearing, the government repeatedly sought to defend its use
of both figures. “These equivocations left room for doubt about the government’s
position on the issue.” Alcala-Sanchez, 666 F.3d at 576.
“[E]ven if the government had acknowledged its error in its supplemental
memorandum, doing so would not have cured the breach.” Heredia, 768 F.3d at
1235. “What the defendant wants and is entitled to is the added persuasiveness of
the government’s support regardless of outcome.” United States v. Camarillo-Tello,
236 F.3d 1024, 1028 (9th Cir. 2001). “[O]ne really cannot calculate how the
government’s error and breach may have affected the perceptions of the sentencing
judge.” Alcala-Sanchez, 666 F.3d at 577. “That the district court claimed not to
have been influenced by the government’s sentencing memorandum is simply
‘irrelevant.’” Heredia, 768 F.3d at 1235 (quoting Camarillo-Tello, 236 F.3d at
1028).
“Considering the government’s breach of the plea agreement, we vacate
appellant’s sentence and remand for resentencing. As we are required to do, we
remand for resentencing before a different judge.” Mondragon, 228 F.3d at 981.
We “emphasize that this is in no sense to question the fairness of the sentencing
judge; the fault here rests on the prosecutor, not on the sentencing judge.” Id.
(quoting Santobello v. New York, 404 U.S. 257, 263 (1971)). We “intend no
criticism of the district judge by this action, and none should be inferred.” Alcala-
4
Sanchez, 666 F.3d at 577 n.2 (quoting United States v. Johnson, 187 F.3d 1129, 1136
n.7 (9th Cir. 1999)).
We note that on appeal, Brannum seeks not simply a resentencing, but also
that his conviction be vacated. We express no opinion regarding whether the
appropriate remedy in this case is “rescission” of the plea agreement or “a
resentencing at which the Government would fully comply with the agreement—in
effect, specific performance of the contract.” Puckett, 556 U.S. at 137. We leave
that issue to the new judge on remand.
We vacate the sentence and remand for further proceedings before a different
district judge.
5