United States v. VanDam

493 F.3d 1194, 2007 U.S. App. LEXIS 16271, 2007 WL 1982155
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 10, 2007
Docket06-4104
StatusPublished
Cited by55 cases

This text of 493 F.3d 1194 (United States v. VanDam) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. VanDam, 493 F.3d 1194, 2007 U.S. App. LEXIS 16271, 2007 WL 1982155 (10th Cir. 2007).

Opinions

HOLMES, Circuit Judge.

Defendant Leonard Dale VanDam argues that the government breached its duty under his plea agreement by failing to recommend a term of imprisonment at the bottom of the applicable range under the United States Sentencing Guidelines (the “Guidelines”). As a remedy, Mr, Van-Dam seeks specific performance before the same judge.

We agree that the government breached the plea agreement. We also agree on these facts that Mr. VanDam should receive his requested remedy. Accordingly, exercising our jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291, we VACATE Mr. VanDam’s sentence and REMAND to the same sentencing judge for resentencing.

I. BACKGROUND

On December 19, 2001, Mr. VanDam was charged with one count of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and with one count of possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(2).

The government filed a superseding indictment on April 24, 2002. The superseding indictment' added a second drug trafficking charge. The two drug trafficking charges stemmed, respectively, from incidents on October 17, 2001 and February 25, 2002. The state police arrested Mr. VanDam on each occasion. The firearm charge was linked only to the October 17, 2001 incident.

A. Plea Agreement

After Mr. VanDam unsuccessfully moved to suppress the evidence seized in connection with the October 17, 2001 incident, he entered into a conditional plea agreement with the government. Mr. VanDam pleaded guilty to the October 17, 2001 drug trafficking charge and to the felon-in-possession charge, although he reserved his right to appeal the suppression ruling. In exchange, the government dropped the February 25, 2002 drug-trafficking charge and, inter alia, agreed to “recommend sentencing at the low end of the guideline range found applicable.” R., Supp. Vol. II, Doc. No. 48, ¶ 11(C), at 4. The district court accepted Mr. VanDanfs guilty plea on December 13, 2002.

B. First Sentencing

The Presentence Investigation Report (“PSR”) recommended a Guidelines range of 188 to 235 months of imprisonment, based upon a total offense level of 33. In calculating the base offense level pursuant to Guidelines § 2D1.1, the PSR converted the cash found in Mr. VanDam’s- possession on October 17, 2001 into a quantity of methamphetamine and then into a marijuana equivalent.

At sentencing, the district court chose not to convert the cash attributed to Mr. VanDam into a drug equivalent for purposes of calculating his base offense level. Without the conversion, the district court found Mr. VanDam’s total offense level to be 31, rather than 33. This yielded a Guidelines range of 151 to 188 months. The district court then chose to sentence Mr. VanDam in the middle of that range, to a- 168-month period of incarceration.

C.First Appeal

Mr. VanDam appealed the denial of his motion to suppress. On appeal, the government conceded that the district court [1197]*1197should have suppressed a firearm found in Mr. VanDam’s vehicle. This Court agreed that the firearm was illegally obtained.1 See United States v. VanDam, No. 03-4137, slip op. at 1 (10th Cir. Sept. 15, 2005). We therefore vacated Mr. Van-Dam’s original sentence and remanded for additional proceedings. Id. at 2.

D. Second Sentencing

On remand, the parties chose to honor the original plea agreement, without the felon-in-possession charge.

Prior to resentencing, the government filed a sentencing memorandum. The government argued that the offense level— and, therefore, the Guidelines range — should be higher than that found applicable during the original sentencing. The government contended that possession of the firearm still triggered an enhancement under Guidelines § 2Dl.l(b)(l), since the exclusionary rule is generally inapplicable to sentencing proceedings. The government also argued that the district court erred during the first sentencing proceeding in not converting the cash in Mr. Van-Dam’s possession at the time of his October 17, 2001 arrest into a drug quantity. Asking the district court to consider the firearm and the cash, the government pushed for a Guidelines range of 188 to 235 months. The government advocated for the “low end of that guideline range.” R., Supp. Vol. II, Doc. 84, at 4 (emphasis added).

The government’s sentencing memorandum did recognize, however, that the district court previously rejected this offense-level calculation. Faced with this reality, but stressing that the applicable Guidelines range should be 188 to 235 months, the government conceded that the district court’s original sentence of 168 months was still a “reasonable sentence.” Id.

A sentencing hearing was conducted on April 25, 2006. At the outset, the district court summarized the government’s position as to the appropriate sentence:

The government claims that ... all of this effort by Mr. VanDam and all that reading and you successfully getting this remanded does not make any difference. They still want the 168 months. In fact, they think it really should be 188 months, but they are willing to live with 168.
Right?

R., Vol. II, Tr. at 5. The government responded, “That is exactly our position, yes.” Id. (emphasis added).

Later, the government elaborated upon this position:

If the Court had counted that money, we would end up with a final offense level of 33 and a criminal history of four for a range of 188 to 235 months. Discounting the money, his final offense level is down to a level 31 with a range of 151 to 188. The 168 is within that guideline range. The government initially agreed to recommend the low end of the guideline range as a part of the sentencing considerations in this case. However, the government is of the opinion that the appropriate guideline range would be that 188 to 235, and the low end of that would be 188.

Id. at 7-8 (emphasis added). At the end of its colloquy, the government presented its “bottom line”: it was “still recommending the 168 month sentence be imposed at this resentence.” Id. at 9.

Following the government’s ultimate recommendation of 168 months, Mr. Van-[1198]*1198Dam personally addressed the district court. He described his personal progress since his first sentencing. In particular, Mr. VanDam noted that, due to the absence of any disciplinary problems, he was transferred from a medium-security facility to a low-security facility; that he was promoted in his prison job; and that he was taking yoga and Spanish classes. Mr. VanDam also took responsibility and expressed contrition for his past offenses.

After these statements, the district court announced Mr. VanDam’s new sentence.

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Cite This Page — Counsel Stack

Bluebook (online)
493 F.3d 1194, 2007 U.S. App. LEXIS 16271, 2007 WL 1982155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vandam-ca10-2007.