UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
NO. 00-10380
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT A. MACKAY, also known as Fatman, also known as Fat Boy
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas Cr. No. 3:97-CR-208-01
May 28, 2002 Before EMILIO M. GARZA and PARKER, Circuit Judges and HINOJOSA*, District Judge.
Per Curiam:**
Defendant-appellant, Robert A. Mackay (Mackay) appeals the
final judgment of the United States District Court, Northern
* District Judge of the Southern District of Texas, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. District of Texas, in his criminal case. Mackay presents four
points of error related to his plea agreement and the district
court’s refusal to allow him to withdraw his guilty plea, issues
related to the quantity of the controlled substance used to
determine the sentence imposed, the use of sentence enhancements
factors under the sentencing guidelines not mentioned in the
indictment, and the admission at Mackay’s sentencing of a
transcript of testimony used at a co-conspirator’s sentencing
hearing. For the reasons that follow, we affirm.
I. Background
On June 24, 1997, Mackay and 18 co-defendants were charged
in a single count indictment with conspiring to distribute and
possess with intent to distribute one thousand kilograms or more
of marijuana in violation of Title 21 U.S.C. §§ 841(a)(1),
841(b)(1)(vii) and 846. A twenty-two count superseding
indictment was filed on August 28, 1997 naming Mackay and 21 co-
defendants.
In the superseding indictment Mackay was charged in count
one with conspiracy to distribute and possess with intent to
distribute one thousand kilograms or more of marijuana in
violation of Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii) and
846. Counts two, four and twenty charged Mackay with the use of
a communication facility during the commission of a drug
2 trafficking crime in violation of Title 21 U.S.C. § 843(b) and in
count twenty-one, he was charged with conspiracy to commit money
laundering in violation of Title 18 U.S.C. §§ 1956(a)(1)(A)(i),
1956(a)(2)(A) and 1956(h).
On January 5, 1998, Mackay plead guilty to the marijuana
conspiracy alleged in count one of the superseding indictment
pursuant to a plea agreement with the Government. In the plea
agreement, among other matters, Mackay’s statutory sentencing
range was identified as between 10 years and life imprisonment.
Mackay agreed not to contest any forfeiture proceedings related
to three specific pieces of real property (constituting 475
acres, 350 acres, and 20 acres), a 1995 Lincoln Towncar, and
assorted jewelry. In return, the Government agreed to return to
Mackay all other property the Government had seized which was
subject to forfeiture action but not among the previously listed
items.
Unbeknownst to the Government’s trial attorneys, some of the
property that was to be returned to Mackay (which included two
Ford pick-up trucks, various weapons, and one Bel Aire Chevrolet)
had already been administratively forfeited by the Drug
Enforcement Administration (DEA) before the parties entered into
the plea agreement. Mackay had not filed a petition for
remission with the DEA and had not preserved his rights with
regards to said property under the DEA administrative process.
3 In March 1998, Mackay moved to withdraw his guilty plea,
alleging that the Government had not returned all the property
under the agreement, specifically the items that were
administratively forfeited by the DEA.1 In an evidentiary
hearing before the district court in April, Mackay requested
either specific performance under contract law, or that
adjustments to the plea agreement be made in order that Mackay
could be “made whole either with a replacement item or
compensating value,” or in the alternative, Mackay wanted to
withdraw his plea. Meanwhile, the Government had proceeded to
make available to Mackay the property listed in the agreement
except that which was administratively forfeited.
In August of 1998, the Government explained to the district
court that the DEA had now received a petition for remission from
Mackay and would conduct an expedited review of the forfeiture
proceedings. The Government also explained that in order for
Mackay to receive the administratively seized property he was
requesting, Mackay was required to pay $15,450.00 to the DEA. As
a result, the Government suggested that Mackay could stipulate to
the forfeiture of a real estate property he had agreed to forfeit
1 The court notes that the Government’s responses to Mackay’s attempts to withdraw his plea refer to an agreement made with his wife and co- defendant, Kris Mackay, who was represented by a different attorney, had a similar return-of-property clause in her plea agreement, and had requested specific performance only. While explaining the proceedings surrounding the performance of the plea agreement, this opinion will refer to dealings with the Mackays as dealings with Mackay as Mackay is the only defendant in this appeal
4 and that the court could make Mackay a lien holder for $15,450.00
on that property and, thus, the sale of the property would make
Mackay whole. The Government stated that said property was worth
about $500,000.00 and that pre-existing liens on the real
property totaled $185,000.00. Mackay, however, objected
asserting, among other things, that it was unlikely that any
money would be left after the sale of said property to satisfy
the lien.
After conducting hearings, the court found that although the
Government might have been negligent in its original promises in
the plea agreement, it had “taken action in good faith to bring
about substantial compliance with the plea agreement.” The court
concluded that the government complied with the agreement “for
all practical purposes” and that a withdrawal of the plea would
not be in the interest of justice. Mackay refused to sign a
stipulation agreement as to the forfeiture of the property he had
agreed to forfeit and moved for reconsideration of the denial of
his motion to withdraw his plea.
Mackay eventually did pay the DEA $15,450.00 for the release
of the administratively forfeited items, but Mackay told the
court that it did not constitute an admission that the plea
agreement had been met. The Government then requested that the
court impose a lien, including the $15,450.00 to reimburse Mackay
for the DEA administratively released property, on a property
5 which Mackay had agreed to forfeit. As an alternative, the
Government ended up agreeing to dismiss the forfeiture of a 475
acre piece of property which Mackay had agreed to forfeit. The
Government’s agreement would allow Mackay to recover his money in
lieu of a lien on the property and he would thus be reimbursed
for the $15,450.00. The court then denied the request to
reconsider the denial of the motion for withdrawal of the guilty
plea and the case was set for sentencing.
Mackay’s Pre-Sentence Report (PSR) calculated his offense
level at 40. This included a base offense level of 34 for
5,208.81 kilograms of marijuana, an increase of 2 for possession
of a firearm, an increase of 4 for Mackay’s role in the offense,
an increase of 2 for obstruction of justice, and a decrease of 2
for acceptance of responsibility. Mackay’s criminal history
category was calculated at III, and the resulting guideline level
was 360 months to life.
During the sentencing hearing, the Government moved to
introduce the transcript of co-defendant Jose Rosales’ sentencing
hearing, which included the testimony of a deceased unindicted
co-conspirator, Larry Mears (Mears). Mackay objected to the
introduction of Mears’ testimony stating there was no opportunity
for cross-examination. The court overruled the objection stating
that Mears’ testimony was given under oath and that the court was
allowed to hear hearsay evidence during sentencing.
6 The court adopted the PSR findings regarding Mackay’s base
offense level, firearm enhancement, and role enhancement. The
court rejected the enhancement for obstruction of justice and
also found that Mackay had not accepted responsibility. On March
30, 2000 the district court, using the resulting guideline
calculation of 40 and criminal history category of III,
sentenced Mackay to life imprisonment. Mackay’s sentence was
later reduced to 405 months because there was a miscalculation of
Mackay’s criminal history category.
As stated previously, Mackay raises four issues on appeal.
First, he argues that the Government failed to perform as it was
required under the plea agreement and that he was entitled to
withdraw his guilty plea. Second, Mackay maintains that the
factual resume at the time of the plea failed to list as an
element of the offense the drug quantity involved and that it
constitutes error under Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000). Third, Mackay argues that
sentencing guideline enhancements imposed for possession of a
firearm and his role in the offense were plainly erroneous
because neither were alleged in the indictment nor proved beyond
a reasonable doubt as required under Apprendi. Finally, Mackay
argues that the district court erred in admitting the transcript
of testimony presented at a related sentencing hearing because
Mackay was deprived of his right to cross-examine a witness.
7 II. Plea Agreement Claims
Mackay’s first argument on appeal is that the government
violated the terms of his plea agreement by the DEA requiring him
to pay $15,450.00 to return property he was entitled under the
agreement. This argument is made although the Government
subsequently released a forfeiture claim on a property which, in
effect, reimbursed Mackay for the $15,450.00.
When interpreting terms of a plea agreement, this court
applies general principles of contract law. United States v.
Cantu, 185 F.3d 298, 304 (5th Cir. 1999). In order “to assess
whether a plea agreement has been violated, this court considers
‘whether the government’s conduct is consistent with the
defendant’s reasonable understanding of the agreement.’” Cantu,
185 F.3d at 304 (quoting United States v. Valencia, 985 F.2d 758,
761 (5th Cir. 1993)). “[T]he government is not permitted to
breach its part of a plea agreement in such a way that frustrates
the defendant’s reasonable understanding of the agreement.”
United States v. Asset, 990 F.2d 208, 216 (5th Cir. 1993). The
defendant bears the burden to prove by a preponderance of the
evidence the underlying factors that establish the breach.
Cantu, 185 F.3d at 304-05. Whether the Government violated the
plea agreement is a question of law reviewed de novo. Id. at
305. The underlying facts showing whether a breach occurred are
8 reviewed for clear error. United States v. Gibson, 48 F.3d 876,
878 (5th Cir. 1995).
Mackay relies on Santobello v. New York, 404 U.S. 257, 262,
92 S.Ct. 495, 499, 30 L.Ed.2d 427,433 (1971) for the proposition
that the court erred in not allowing Mackay to withdraw his
guilty plea. In Santobello, the Supreme Court vacated and
remanded a case back to state court because the Court found that
the government breached its agreement with the defendant. Id. at
262-63. The government in Santobello agreed not to recommend a
sentence to the trial judge in exchange for a plea of guilty to a
lessor included offense. Id. At the time of sentencing six
months later, however, a different prosecutor recommended that
the trial judge impose the maximum sentence. Id.
Santobello applies to cases in which the court must decide
what remedy to apply when the government breaches a plea
agreement. United States v. Kurkculer, 918 F.2d 295, 299 (1st
Cir. 1990). “The Santobello Court did not hold that the
government must fulfill every agreement or offer it makes.
Rather, as we have consistently recognized, the Court was
concerned with enforcing governmental promises that had induced
the defendant to plead guilty.” United States v. Traynoff, 53
F.3d 168, 170-171 (7th Cir. 1995). In order to reach Santobello,
we must find that the Government materially breached the plea
agreement.
9 A breach is material if the non-breaching party is deprived
of the benefit of the bargain. United States v. Castaneda, 162
F.3d 832, 837 (5th Cir. 1998). “The less the non-breaching party
is deprived of the expected benefits, the less material the
breach.” Id. “[I]f a party's ‘nonperformance ... is innocent,
does not thwart the purpose of the bargain, and is wholly dwarfed
by that party's performance,’ the breaching party has
substantially performed under the contract, and the non-breaching
party is not entitled to rescission.” Id. at 838.
As stated previously, Mackay agreed to plead guilty to the
first count of his indictment and to not contest any forfeiture
proceedings related to three specific pieces of real property
(constituting 475 acres, 350 acres, and 20 acres), a 1995 Lincoln
Towncar, and assorted jewelry. In return, the Government
promised to return to Mackay all the property the Government had
seized which was subject to forfeiture action but not among the
listed items.
The alleged breach arose when the Government later
discovered that several items (including two Ford pick-up trucks,
various weapons, and one Bel Aire Chevrolet) had before the
parties entered into the plea agreement been administratively
forfeited by the DEA. In an attempt to resolve the situation,
the Government made offers to make Mackay whole on the $15,450.00
it would cost to release the items from the DEA. The Government
10 was diligent in returning all other property, and eventually
effectively reimbursed Mackay the $15,450.00 by not proceeding
with the forfeiture of a 475 acre piece of property which Mackay
was allowed to keep although he had agreed to forfeit said
property.
Although the Government was delayed in returning all the
property due Mackay, the Government substantially complied with
the plea agreement. Mackay bargained for the return of all his
property the Government had seized except for three specific
pieces of real property (constituting 475 acres, 350 acres, and
20 acres), a 1995 Lincoln Towncar, and assorted jewelry. The
only obstacle the Government encountered was the return of
several items that the DEA administratively forfeited due to
Mackay’s failure to preserve his rights under the administrative
process. Once the problem with returning the items was
discovered, the Government proposed a plan to the court in which
Mackay would receive the full benefit of his bargain. We hold
that the Government substantially performed the plea agreement.
III. Apprendi Claims
Mackay next contends that the court committed two errors
under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000). First, Mackay argues that the district court
committed error under Apprendi because the factual resume at the
11 time of his guilty plea did not list the drug quantity involved
as an element of the offense charged. Second, Mackay argues that
the district court’s sentencing enhancements imposed for
possession of a firearm and role in the offense constitute error
under Apprendi because they were not alleged in the indictment
nor proved beyond a reasonable doubt. Mackay makes these
objections for the first time on appeal.
An Apprendi issue raised for the first time on appeal is
reviewed for plain error. United States v. Virgen-Moreno, 265
F.3d 276, 297 (5th Cir. 2001), United States v. Barton, 257 F.3d
433, 440 (5th Cir. 2001). Plain error review requires Mackay to
show "(1) an error; (2) that is clear or plain; (3) that affects
the defendant's substantial rights; and (4) that seriously
affects the fairness, integrity or public reputation of judicial
proceedings." United States v. Vasquez-Zamora, 253 F.3d 211, 213
(5th Cir. 2001) (quoting United States v. Vasquez, 216 F.3d 456,
459 (5th Cir. 2000)).
Mackay first maintains that the district court erred under
Apprendi because it failed to list the drug quantity as an
element of the offense on the factual resume. In United States
v. Keith, we held in light of Apprendi that “to the extent that
the drug quantity increases a sentence beyond the statutory
maximum, it must be alleged in the indictment and proved to a
jury beyond a reasonable doubt.” United States v. Keith, 230
12 F.3d 784, 786-87(5th Cir. 2000). Furthermore, “Apprendi is
‘limited to facts which increase the penalty beyond the statutory
maximum, and does not invalidate a court’s factual finding for
the purposes of determining the applicable Sentencing
Guidelines.’” United States v. Keith, 230 F.3d 784, 787 (5th
Cir. 2000) (quoting United States v. Doggett, 230 F.3d 160, 166
(5th Cir. 2000)).
Mackay pled guilty to count one of the superseding
indictment which charges Mackay did “knowingly, intentionally,
and unlawfully, combine, conspire, confederate, and agree . . .
to distribute and possess with the intent to distribute one
thousand kilograms or more of substance containing a detectable
amount of marijuana, a Schedule I controlled substance, in
violation of Title 21, United States Code, Sections 841 (a)(1)
and 841 (b)(1)(A)(vii).” At the rearraignment, Mackay was read
the indictment and was informed of the range of punishment for
his offenses. Mackay then stated under oath that the facts set
forth in his factual resume were true. The signed factual resume
states that Mackay “knowingly, intentionally, and unlawfully, did
combine, conspire, confederate, and agree together. . . to
distribute and possess with the intent to distribute at least one
thousand kilograms of marijuana, a Schedule I controlled
substance.”
13 Mackay pled guilty to violation of Title 21 U.S.C. § 846
which carries a range of punishment prescribed in the underlying
offense (Title 21 U.S.C. §§ 841 (a)(1) and 841 (b)(1)(A)(vii)).
Pursuant to Title 21 U.S.C. 841 (b)(1)(A)(vii), the statutory
maximum punishment is life imprisonment for “1000 kilograms or
more of a mixture or substance containing a detectible amount of
marijuana.” Although Mackay was charged and pled guilty to more
than 1000 kilograms, the court found that Mackay was responsible
for 5,208.81 kilograms of marijuana for sentencing purposes. The
405 month sentence imposed was still within the statutory maximum
of life imprisonment. The district court committed no error
under Apprendi.
Mackay next argues that the increase in his sentence for
possession of a firearm and his role in the offense constitutes
error under Apprendi because neither were alleged in the
indictment nor proved beyond a reasonable doubt. In United
States v. Slaughter, 238 F.3d 580 (5th Cir. 2001), we held that
in light of Apprendi, “a fact used in sentencing that does not
increase the penalty beyond the statutory maximum for the crime
charged and proven need not be alleged in the indictment and
proved to a jury beyond a reasonable doubt.” Id. at 583. As
stated above, Apprendi is “limited to facts which increase the
penalty beyond the statutory maximum, and does not invalidate a
14 court’s factual finding for the purposes of determining the
applicable Sentencing Guidelines.” Keith, 230 F.3d at 787.
The court’s guideline sentencing enhancements for possession
of a firearm and role in the offense amounts to an upper limit
guideline sentence which did not exceed the statutory maximum of
life imprisonment. Thus, Mackay’s sentence increase due to
possession of a firearm and role in the offense does not violate
Apprendi because the resulting sentence was still within the
statutory maximum.
IV. Sentencing Hearing Claims
Mackay’s last argument on appeal is that the district court
erred in admitting the transcript testimony of co-defendant Jose
Rosales during Mackay’s sentencing hearing. Although the
testimony was given at a related sentencing hearing, Mackay’s
objection is that the transcript included the testimony of a
deceased co-conspirator who Mackay did not have the opportunity
to cross-examine. We review a district court’s ruling on the
admissibility of testimony for abuse of discretion. United
States v. Matthews, 178 F.3d 295, 303 (5th Cir. 1999).
“For sentencing purposes, the district court may consider
any relevant evidence ‘without regard to its admissibility under
the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
15 probable accuracy.’" United States v. Davis, 76 F.3d 82, 84 (5th
Cir. 1996) (quoting U.S. SENTENCING GUIDELINES MANUAL § 6A1.3(a)
(2000)). Facts, for sentencing purposes, have "some indicia of
reliability" where they are "reasonably reliable." Davis, 76
F.3d at 84 (citing U.S. v. Shacklett, 921 F.2d 580, 585 (5th Cir.
1991)). “Even uncorroborated hearsay evidence may be
sufficiently reliable.” United States v. Gaytan, 74 F.3d 545,
558 (5th Cir. 1996) (citing United States v. West, 58 F.3d 133,
138 (5th Cir. 1995)). "The defendant bears the burden of
demonstrating that information the district court relied on in
sentencing is 'materially untrue.'" Davis, 76 F.3d at 84
(quoting United States v. Vela, 927 F.2d 197, 201 (5th Cir.
1991)).
Although several portions of co-defendant Rosales’
sentencing hearing transcript were introduced by the Government
containing testimony of more that one witness, Mackay only
challenges the introduction of co-conspirator Mears’ testimony.
Mears testified about his relationship to Rosales and Mackay, the
method Rosales and Mackay used to transport marijuana, and the
estimated quantity of marijuana Rosales and Mackay transported.
The district court implicitly found that Mears’ testimony
provided sufficient indicia of reliability to be used at Mackay’s
sentencing hearing because it was permissible to consider hearsay
evidence and because it was given under oath at Rosales’
16 sentencing hearing. In addition, the record shows that Mears’
testimony was cumulative. Testimony by agents and examination of
Rosales’ ledgers at Mackay’s sentencing hearing also indicated
that Mackay and Rosales were leaders of the conspiracy and were
responsible for transporting more than 5,000 kilograms of
marijuana.
Mackay first argues that United States v. Jackson, 990 F.2d
251 (6th Cir. 1993), should control in Mackay’s situation. In
Jackson, the Sixth Circuit stated that “[t]o sentence a defendant
based on facts established at someone else’s trial . . . violates
due process.” Id. at 254. The Sixth Circuit, however, has
clarified Jackson by stating “Jackson simply emphasizes that a
district court must be clear as to the source of the evidence on
which it bases its factual finding, and that the source may not
be from an unrelated proceeding.” Logan v. United States, 208
F.3d 541, 544-45 (6th Cir. 2000). Jackson is not applicable to
Mackay’s case.
Mackay’s second argument is that under Apprendi and its
predecessor Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215,
143 L.Ed.2d 311 (1999), constitutional rights apply in sentencing
hearings and should require the right to confrontation and cross
examination of witnesses whose testimony is being used to
establish factual elements.
17 Apprendi and Jones do not apply in this case. As stated
previously, the Supreme Court in Apprendi held that “[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”
120 S.Ct. at 2362-63. “Apprendi is ‘limited to facts which
increase the penalty beyond the statutory maximum, and does not
invalidate a court’s factual finding for the purposes of
determining the applicable Sentencing Guidelines.’” United
States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000) (quoting
United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000)).
In Mackay’s case, Mackay was sentenced within the statutory
guideline for the offense charged. Apprendi and Jones are thus
not applicable to Mackay’s case.
V. Conclusion
For the foregoing reasons, we conclude that Mackay’s
conviction and sentence imposed by the United States District
Court for the Northern District of Texas should be AFFIRMED.