United States v. Tuimala

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Swanberg et al. Nos. 02-1659/1836 ELECTRONIC CITATION: 2004 FED App. 0164P (6th Cir.) File Name: 04a0164p.06 Appellee. ON BRIEF: Eva A. Kipper, McDONALD, MARIN & KIPPER, Marquette, Michigan, Jane E. Lee, Portland, Maine, for Appellants. Joan E. Meyer, UNITED STATES COURT OF APPEALS ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________

UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - Nos. 02-1659/1836 RONALD LEE GILMAN, Circuit Judge. Craig Swanberg v. - and Adam Tuimala were part of a drug distribution ring > operating in Illinois and Michigan. Tuimala sold cocaine and , marijuana to Terri Sanderson of Marquette, Michigan. CRAIG ALAN SWANBERG - (02-1659) and ADAM ELWIN Sanderson in turn distributed the drugs to various individuals, - including Swanberg, who would then sell the drugs and share TUIMALA (02-1836), - the profits with Sanderson. Swanberg was convicted by a Defendants-Appellants. - jury of conspiring to distribute cocaine and of possessing - cocaine with the intent to distribute, all in violation of N 21 U.S.C. §§ 846 and 841(a)(1). He was sentenced to 63 Appeal from the United States District Court months in prison. Tuimala pled guilty to one count of for the Western District of Michigan at Marquette. conspiring to distribute cocaine, also in violation of 21 U.S.C. No. 01-00033—Robert Holmes Bell, Chief District Judge. §§ 846 and 841(a)(1), and was sentenced to 84 months in prison. Argued: April 29, 2004 Swanberg contends on appeal that the district court Decided and Filed: June 3, 2004 committed clear error in determining the drug quantity that was attributable to him for sentencing purposes. Tuimala Before: GUY, GILMAN, and COOK, Circuit Judges. argues that his waiver of the right to appeal his sentence was invalid because his plea agreement with the government was _________________ breached when the district court unwittingly relied on information from Tuimala’s guilty-plea proffer to enhance his COUNSEL sentence for a leadership role in the offense. For the reasons set forth below, we AFFIRM Swanberg’s sentence but ARGUED: Eva A. Kipper, McDONALD, MARIN & VACATE Tuimala’s sentence and REMAND his case for KIPPER, Marquette, Michigan, Jane E. Lee, Portland, Maine, the limited purpose of resentencing without the sentence for Appellants. Joan E. Meyer, ASSISTANT UNITED enhancement. STATES ATTORNEY, Grand Rapids, Michigan, for

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I. ANALYSIS transactions of the minimum amount Ms. Sanderson reported she would purchase/receive from Mr. Tuimala). A. The quantity of drugs attributable to Swanberg Ms. Sanderson testified [that] Mr. Swanberg received 75 Swanberg contends that the district court erred in percent of the cocaine she purchased from Mr. Tuimala. attributing 18.75 ounces of cocaine and 9 grams of marijuana Taking into account the conservative quantity of cocaine to him in calculating his sentence. “We review a district attributed to Mr. Sanderson, receipt of this percentage of court's drug quantity determination for clear error. The the total amount distributed or intended for distribution government must prove the amount to be attributed to a provides a culpability attributable to Mr. Swanberg of defendant by a preponderance of the evidence.” United States 18.75 ounces (531.5 grams). v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000) (citations omitted). This court has also held that “[t]estimonial Although Swanberg objected to the Presentence Report’s evidence from a coconspirator may be sufficient to determine calculation of the drug quantity attributable to him, he the amount of drugs for which another coconspirator should produced no contradictory evidence at the hearing. This court be held accountable.” Id. has held that “[i]n most instances, a sentencing court may rely on undisputed facts that are recited in a presentence report to At sentencing, the district court relied on the following conclude that the defendant committed acts offered as statement of facts set forth in the Presentence Report: relevant conduct.” United States v. Shafer, 199 F.3d 826, 830 n1. (6th Cir. 1999); see also Fed. R. Crim. P. 32(i)(3) (“At Using the most conservative estimate of the quantity of sentencing, the court . . . may accept any undisputed portion drugs received by Ms. Sanderson from Mr. Tuimala, she of the presentence report as a finding of fact . . . .”). In the is culpable for 25 ounces (708.75 grams) of cocaine and present case, the facts set forth in the Presentence Report were 8 pounds (3,628.8 grams) of marijuana. This quantity consistent with the other evidence presented in Swanberg’s was arrived at by taking into account Ms. Sanderson’s case. The district court therefore did not clearly err by relying report of her frequency and quantity of purchases from on the Report in determining the quantity of drugs attributable Mr. Tuimala, along with Mr. Tuimala’s report of his to Swanberg. sales to Ms. Sanderson and her boyfriend when the two traveled to Chicago for said transactions. Using a two- B. Tuimala’s waiver of his right to appeal week interval between purchases beginning on February 1, and ending on May 19, 2001, it was Criminal defendants may waive their right to appeal as part estimated a total of eight transactions can be attributed to of a plea agreement so long as the waiver is made knowingly Ms. Sanderson. The evidence at hand reflects four 2- and voluntarily. United States v. Fleming, 239 F.3d 761, 763- pound purchases of marijuana, and the following cocaine 64 (6th Cir. 2001). In the present case, Tuimala waived his purchases: four at 4 ounces each (based [upon] Mr. right to appeal his sentence in his plea agreement, but now Tuimala’s report and Ms. Sanderson’s acknowledgment contends that the waiver was not knowingly made because the of transactions of up to 4 ounces), one at 3 ounces (based district court erroneously informed him at the sentencing on Ms. Sanderson’s report of transactions of 2 to 3 hearing that he had the right to appeal. “This Court reviews ounces), and three at 2 ounces each (based on the question of whether a defendant waived his right to appeal conservative application, to the remaining number of Nos. 02-1659/1836 United States v. Swanberg et al. 5 6 United States v. Swanberg et al. Nos. 02-1659/1836

his sentence in a valid plea agreement de novo.” United defendant that “you do have the right to appeal this matter to States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003). the United States Court of Appeals for the 6th Circuit.” Id. On appeal, this court held that “[t]he record here clearly The plea agreement between Tuimala and the government demonstrates that Fleming understood the waiver contained states that “[t]he defendant and the United States knowingly in the plea agreement[,]” id. at 764, and that the district and expressly waive all rights conferred by 18 U.S.C. § 3742 court’s subsequent statement to Fleming did not restore his to appeal whatever sentence is imposed, including any issues right to appeal. Id. at 765. This court therefore dismissed the that relate to the establishment of the guideline range . . . .” appeal. Id. at 765-66. At the plea colloquy, Tuimala answered “yes” when the district court asked if he “had an adequate opportunity to read As in Fleming, the waiver provision in the present case was and review this entire plea agreement with [his] attorney[.]” contained in a written plea agreement, Tuimala was informed The prosecutor then read into the record various parts of the in open court that he had given up his right to appeal plea agreement. He also explained that the agreement whatever sentence he received, and the district court expressly “specifically states that there is no appeal—Mr. Tuimala found that Tuimala made the waiver knowingly. Tuimala waives the right to appeal the calculation of the guideline also “had an adequate opportunity to read and review this range and . . . he can only appeal a departure upward or entire plea agreement with [his] attorney[,]” a factor not downward from the guideline range or a sentence that exceeds mentioned in Fleming, but which also suggests that Tuimala the maximum set by law.” Finally, the district court expressly knowingly waived his appellate rights. We therefore found that “the plea is made knowingly and with full conclude that Tuimala knowingly waived the right to appeal understanding of the rights that I’ve explained to the whatever sentence he received, despite the district court’s defendant.” At the subsequent sentencing proceeding, incorrect statement to the contrary at Tuimala’s sentencing however, the district court erroneously informed Tuimala that hearing. “[y]ou have a right of appeal from the sentence in this matter.” Tuimala contends that, as a result of the district C. The government’s alleged breach of its plea court’s incorrect statement at sentencing, he did not agreement with Tuimala knowingly give up his right to appeal. 1. Standard of review This court faced a nearly identical situation in United States v. Fleming, 239 F.3d 761 (6th Cir. 2001), where the defendant Tuimala’s alternative position is that even if he would have waived his right to appeal his sentence as part of a written normally been barred from appealing due to his waiver, he is plea agreement. At the plea colloquy, the district court orally not so bound in the present case because the plea agreement informed the defendant that “the Government has the right to was breached when information from his guilty-plea proffer appeal any sentence that I might impose. You, on the other was used to enhance his sentence. This use was contrary to hand, have given up your right to appeal any sentence that I the government’s express promise that the proffer information might impose, even though you don’t know what the sentence would not be used “in a subsequent prosecution or at is going to be.” Id. at 763. The court also found “that sentencing in this case.” Fleming’s guilty pleas had been knowingly and voluntarily entered.” Id. At the subsequent sentencing proceeding, Whether the plea agreement was breached is an issue that however, the district court erroneously informed the we would presumptively review de novo. United States v. Nos. 02-1659/1836 United States v. Swanberg et al. 7 8 United States v. Swanberg et al. Nos. 02-1659/1836

Barnes, 278 F.3d 644, 646 (6th Cir. 2002). In the present Id. This court’s decisions after Koeberlein have consistently case, however, Tuimala objected at sentencing to the district applied plain-error review where a defendant fails to claim court’s application of the sentence enhancement, but did not during sentencing that the government has breached the plea argue that the plea agreement had been breached. The agreement. Barnes, 278 F.3d at 646; Teeple v. United States, government therefore contends that Tuimala has forfeited this No. 00-1389, 2001 WL 873644, at *1 (6th Cir. July 26, 2001) argument on appeal. See United States v. Olano, 507 U.S. (unpublished opinion). 725, 733 (1993) (explaining that “forfeiture is the failure to make the timely assertion of a right”). In light of Olano and the authorities cited above, we will apply the plain-error standard of review to this issue. “When In support of its position, the government relies on the case reviewing a claim under a plain error standard, this Court may of United States v. Cullens, 67 F.3d 123, 124 (6th Cir. 1995) only reverse if it is found that (1) there is an error; (2) that is (per curiam), where the argument that the prosecution had plain; (3) which affected the defendant’s substantial rights; breached the plea agreement was deemed forfeited because and (4) that seriously affected the fairness, integrity or public the defendant had failed to raise the issue at sentencing. The reputation of the judicial proceedings.” Barnes, 278 F.3d at Cullens court, however, did not consider Rule 52(b) of the 646. Plain error may be committed by the government as Federal Rules of Criminal Procedure, which provides that “[a] well as by the district court. Id. at 649 (reversing a conviction plain error that affects substantial rights may be considered because the government failed to make a certain sentencing even though it was not brought to the court’s attention.” This recommendation as promised in the plea agreement). was an oversight in light of the fact that in Olano, decided two years prior to Cullens, the Supreme Court explained that 2. Alleged breach of the plea agreement “forfeiture . . . does not extinguish an ‘error’ under Rule 52(b).” 507 U.S. at 733. Moreover, in United States v. The government promised in the written plea agreement Koeberlein, 161 F.3d 946 (6th Cir.1998), this court noted that that the information from Tuimala’s guilty-plea proffer would some prior panels, including the one that decided Cullens, had not be used against him at sentencing. In his proffer, Tuimala “declined to review objections that were not raised below[,]” stated that he id. at 948, while other panels had applied plain-error review where defendants failed to raise a sentencing issue in the supplied multiple individuals with cocaine and marijuana district court. Id. at 949. The Koeberlein court went on to for distribution in Marquette County, Michigan. These state: distributors would receive their supply of illegal drugs from the defendant through a rendevous with him at As these cases indicate, our opinions have not made predetermined locations in Chicago, Illinois or crystal clear whether failure to raise a timely objection to Marquette. a sentencing decision in the district court precludes us from conducting review for plain error on appeal. We This information was repeated in Paragraph 55 of the hold that it does not. Where, as here, a criminal Presentence Report. Significantly different information was defendant has failed to object below, he or she must contained in the statement of facts to which the parties demonstrate that the error was plain as defined by Fed. stipulated as part of the plea agreement. The stipulation R. Crim. P. 52(b) before we may exercise our discretion provides in relevant part that “[f]rom February to May, 2001, to correct the error. Adam Elwin Tuimala supplied Terr[i] Sanderson with cocaine Nos. 02-1659/1836 United States v. Swanberg et al. 9 10 United States v. Swanberg et al. Nos. 02-1659/1836

. . . . Sanderson, in turn, sold the cocaine to Craig Swanberg, that’s leadership. Not organizing, but it’s leadership, and Richard Feathers, and others.” The material difference the two-point calculation for leadership this Court between the proffer and the stipulation is that the proffer believes is appropriate in this case. states that Tuimala supplied drugs to “multiple individuals[,]” whereas the stipulation names only Sanderson as the recipient (Emphasis added.) of drugs from Tuimala. The district court’s statement indicates reliance on both the At sentencing, the district court enhanced Tuimala’s plea agreement stipulation and Paragraph 55 of the offense levels by two levels for his alleged leadership role in Presentence Report (which contains the information from the the offense. The court made the following statement in proffer) in enhancing Tuimala’s sentence. After describing connection with the enhancement: Paragraph 55, the court incorrectly stated: “That’s accurate. That’s what the parties agreed to. . . . I think this is totally [A page of the plea agreement] contains the parties’ pertinent.” In fact, however, the parties agreed only to the stipulation to the following statement of facts. . . . facts as set forth in the stipulation, not as stated in Paragraph 55. The plea agreement was therefore violated when the [F]rom February to May of 2001, Adam Elwin Tuimala district court unwittingly relied upon the information from supplied Terri Sanderson with cocaine, which Sanderson Tuimala’s guilty-plea proffer in imposing the sentence distributed to others in and around Marquette, enhancement, and the prosecutor said nothing to correct this Michigan. . . . error. This breach adversely “affected [Tuimala’s] substantial rights[,]” Barnes, 278 F.3d at 646, because it caused Tuimala Is that accurately what was entered? to receive a more severe sentence. [Defense counsel]: That’s accurate, Your Honor. The only remaining question is whether the breach “seriously affected the fairness, integrity or public reputation [The prosecutor]: Yes, Your Honor. of the judicial proceedings.” Id. This court has held that “violations of the plea agreements on the part of the THE COURT: Okay. Paragraph 55 [of the Presentence government serve not only to violate the constitutional rights Report] as to role in the offense, I believe, which the of the defendant, but directly involve the honor of the objection specifically addresses is that Mr. Tuimala government, public confidence in the fair administration of supplied multiple individuals with cocaine and marijuana justice, and the effective administration of justice in a federal for distribution in Marquette County, Michigan. These scheme of government . . . .” Id. at 648 (quoting United distributors would receive their supply of illegal drugs States v. McQueen, 108 F.3d 64, 66 (4th Cir.1997) (quotation from the defendant through a rendezvous with him at marks omitted)). The breach of the plea agreement in the predetermined locations in Chicago, Illinois or present case, moreover, particularly affected the fairness of Marquette. That’s accurate. That’s what the parties the proceedings because Tuimala’s sentence was increased as agreed to. . . . a direct result. We therefore conclude that plain error I think this is totally pertinent. This paragraph that I’ve occurred. read, the Court has read here that has been signed by the defendant and his lawyer and the government’s lawyer, Nos. 02-1659/1836 United States v. Swanberg et al. 11 12 United States v. Swanberg et al. Nos. 02-1659/1836

D. Tuimala’s sentence enhancement for a leadership district court should resentence Tuimala without applying the role leadership enhancement. The district court imposed a two-level sentence II. CONCLUSION enhancement, pursuant to United States Sentencing Guidelines § 3B1.1, for Tuimala’s alleged leadership role in For all of the reasons set forth above, we AFFIRM the offense. “The proper standard of review to employ in Swanberg’s sentence but VACATE Tuimala’s sentence and evaluating the district court’s imposition of this enhancement REMAND his case for the limited purpose of resentencing is subject to some debate.” United States v. Henley, 360 F.3d without the sentence enhancement. 509, 516 (6th Cir. 2004). Prior to 2001, this court “reviewed a district court’s factual findings for clear error and legal conclusions de novo.” United States v. Solorio, 337 F.3d 580, 600 (6th Cir.2003). Then, in Buford v. United States, 532 U.S. 59, 66 (2001), the Supreme Court held that a district court’s application of the guidelines’ section there under consideration should be reviewed deferentially rather than de novo “in light of the fact-bound nature of the legal decision.” This court has not yet decided on the appropriate standard of review of a § 3B1.1 enhancement in any post-Buford case. See Henley, 360 F.3d at 516 (declining to decide whether the enhancement should be reviewed deferentially or de novo because the court would have affirmed the district court under either standard). In the present case, we again have no need to decide which standard of review applies because the district court’s decision was incorrect under either standard. This court has held that a sentence enhancement is appropriate under § 3B1.1 where a defendant has “exerted control over at least one individual within a criminal organization,” but not where the defendant has “merely exercised control over the property, assets or activities of the enterprise.” United States v. Gort-DiDonato, 109 F.3d 318, 321 (6th Cir. 1997). In the present case, the record at most demonstrates only that Tuimala sold drugs to multiple individuals. He had no control over what they did with the drugs after the purchases. This does not meet the degree of control required by Gort-DiDonato. On remand, therefore, the