Federal Criminal Appeals Lawyer call 1-800-APPEALS (1-800-277-3257)
U.S. v E.V.
550 F.3d 747
Eighth Circuit Court of Appeals
Decided on September 14, 2007
Issue:
Agreement Stipulated a Dangerous Weapons Increase Did Not Apply
Whether the Government’s introduction of testimony about defendant’s being armed constituted a breach of plea agreement, where the agreement stipulated that those specific offense characteristics did not apply to defendant’s case.
Holding:
Government Breached Agreement with Testimony as to Firearms
The Eighth Circuit held that the Government breached the agreement by introducing the testimony, but that the breach did not warrant resentencing.
Federal Criminal Appeals Lawyer call 1-800-APPEALS (1-800-277-3257)
Facts:
Defendant E.V. was arrested in 2001 while crossing the U.S. border from Mexico with 40 pounds of marijuana. In custody, defendant ascertained information from a fellow inmate and major trafficker that he was seeking to hire hit men to kill two witnesses who would testify against him in court. E.V. began working with the F.B.I. and acted as a cooperating witness. During this work, defendant formed an association with Special Agent Rich Schneider, with whom he spoke with on a daily basis and met with at least three to four times per week. After two years in the Witness Protection Program, E.V. reached out to Schneider expressing intent to resume his role as a cooperating witness for the F.B.I. However, defendant was still under supervision of the Parole Commission, so Schneider instructed E.V. to refrain from any operations until his parole expired.
Nevertheless, E.V. continued to relay information to Schneider, who followed up on that information on two occasions. The third time, defendant conveyed information concerning a drug dealer named “Gato” who offered E.V. the opportunity to travel to Minnesota to collect a drug debt of $400,000. Schneider could not obtain the authorization necessary for E.V. to engage in this activity, so Schneider told E.V. not to move forward. E.V. did so anyway, and proceeded to Minnesota where he collection a portion of the drug money and was arrested by the F.B.I and D.E.A. Defendant was indicted for conspiracy to distribute in excess of 1,000 kilograms of marijuana.
Before sentencing, E.V. attempted to obtain evidence as to his relationship with Schneider, and he filed a memorandum addressing his cooperation with the authorities and the “encouragement he received from the Government to act on their behalf.” In response, the Government announced its position that defendant’s sentencing arguments forced it to offer the firearm evidence in rebuttal. After an evidentiary hearing, the district court imposed a sentence of 46 months’ imprisonment followed by four years of supervised release. Defendant appealed his sentencing, contending that the Government breached the agreement by introducing evidence that he possessed a firearm during the commission of the offense, and for arguing against his motion for a downward departure.
Analysis:
Testimony Regarding Firearms Breached ‘Enforceable, Bargained-For’ Agreement
Defendant’s plea agreement specified that “the parties agree that none of the specific offense characteristics listed under Guideline Section 2D1.1(b) is applicable in this case.” This clause encompasses subsection 2D1.1(b)(1), which requires a two-level increase to the base offense level “if a dangerous weapon was possessed” during the commission of the charged offense. The Eighth Circuit held that this agreement was an “enforceable, bargained-for term of the plea agreement” (United States v Thompson, 403 F.3d 1037, 1040 (8th Cir.2005)), and that the prosecutor’s introduction of the testimony regarding the firearms constituted a breach of that agreement.
The Eighth Circuit has previously held that the introduction of evidence contradicting a specific stipulation amounts to a breach of the agreement. In United States v. Dewitt, 366 F.3d 667, 669-70 (8th Cir.2004), the parties stipulated to an applicable drug quantity and base offense level, but the Government introduced evidence at sentencing in support of a higher drug quantity, and the Eighth Circuit held that the prosecutor breached the plea agreement. Likewise in this case, the stipulation that the dangerous weapon offense characteristics did not apply precluded the Government from introducing evidence to the contrary, either as purported rebuttal evidence or pursuant to the more general agreements that the parties could seek departures from the applicable guidelines range.
However, the Eighth Circuit found that the Government’s breach did not impact defendant’s sentence. The court adhered to its assurance that “there’s not going to be a gun enhancement.” The Eighth Circuit therefore denied defendant’s request to remand the case for resentencing, and affirmed the judgment despite the Government’s breach.