United States v. Wilson , 268 F. App'x 804 ( 2008 )


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  •                                                                            FILED
    United States Court of Appeals
    Tenth Circuit
    March 11, 2008
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                   No. 07-3342
    (D.C. No. 5:06-CR-40091-JAR)
    SHERYL L. WILSON,                                      (D. Kan.)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before KELLY, MURPHY, and HOLMES, Circuit Judges.
    Sheryl L. Wilson pleaded guilty to one count of bank fraud in violation
    of 
    18 U.S.C. § 1344
    . She was sentenced to fifty-seven months’ imprisonment.
    She pleaded guilty pursuant to a plea agreement that contained a waiver of her
    appellate rights. Nonetheless, Ms. Wilson filed an appeal alleging that the
    government breached the plea agreement and that the district court erred in
    *
    This panel has determined unanimously that oral argument would not
    materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
    10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
    argument. This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
    10th Cir. R. 32.1.
    determining her sentence. The government has now moved to enforce the appeal
    waiver under United States v. Hahn, 
    359 F.3d 1315
     (10th Cir. 2004) (en banc)
    (per curiam). Ms. Wilson responds that the government breached the terms of the
    plea agreement by not recommending a reduction for acceptance of responsibility,
    and, therefore, her right to appeal should not be precluded by the plea
    agreement’s appeal waiver. Having considered the motion and response, we grant
    the motion to enforce and dismiss the appeal.
    Ms. Wilson agreed to waive “any right to appeal or collaterally attack any
    matter in connection with [her] prosecution, conviction and sentence,” “except to
    the extent, if any, the court departs upwards from the applicable sentencing
    guideline range determined by the court.” Plea Agreement, at 7-8, ¶ 10. “This
    circuit has held, however, that a[n appeal] waiver provision may be unenforceable
    if the government breaches the terms of the Plea Agreement.” United States v.
    Guzman, 
    318 F.3d 1191
    , 1195 (10th Cir. 2003).
    “This Court reviews de novo the question of whether the government has
    breached a plea agreement, even when the defendant fails to preserve this
    objection below.” United States v. VanDam, 
    493 F.3d 1194
    , 1199 (10th Cir.
    2007), cert. denied, 
    128 S. Ct. 945
     (2008). “General principles of contract law
    define the content and scope of the government’s obligations under a plea
    agreement.” 
    Id.
     “We thus look to the express language in the agreement to
    identify both the nature of the government’s promise and the defendant’s
    -2-
    reasonable understanding of this promise at the time of the entry of the guilty
    plea.” 
    Id.
     We must “construe all ambiguities against the government, to the
    extent it is the drafting party.” 
    Id.
     Finally, “[w]e evaluate the record as a whole
    to ascertain whether the government complied with its promise.” 
    Id.
    Ms. Wilson contends that the government agreed in the plea agreement to
    recommend a sentence reduction for acceptance of responsibility, as provided for
    by U.S.S.G. § 3E1.1, and agreed that Ms. Wilson was free to litigate the amount
    of loss involved as part of her sentencing process, yet refused to recommend a
    reduction for acceptance of responsibility when she exercised her right to contest
    the loss amounts at sentencing. For the following reasons, we conclude the
    government did not breach the plea agreement.
    Ms. Wilson admitted in her plea agreement that for three years, she devised
    and executed a scheme to defraud her employer, an eye surgery center, by
    fraudulently using the eye center’s bank accounts for her personal benefit. More
    specifically, she admitted that she purchased items for her personal use, and then
    submitted false expense reimbursements claiming these items were for business
    purposes. The parties did agree in the plea agreement “that the loss involved in
    [Ms. Wilson’s] crime is not an element of the offense, and both parties will be
    free to litigate the issue of loss as part of the sentencing process.” Plea
    Agreement, at 4, ¶ 3.
    -3-
    The government also agreed:
    To recommend the defendant receive a two (2) level reduction in the
    applicable offense level under U.S.S.G. § 3E1.1 for acceptance of
    responsibility. In addition, the United States will move at the time of
    sentencing for the defendant to receive an additional one (1) level
    reduction for acceptance of responsibility because the defendant
    timely notified the government of her intention to enter a plea of
    guilty. However, the government’s obligation concerning acceptance
    of responsibility is contingent upon the defendant’s continuing
    manifestation of acceptance of responsibility as determined by the
    United States. If the defendant denies or gives conflicting
    statements as to her involvement, falsely denies or frivolously
    contests relevant conduct that the court determines to be true,
    willfully obstructs or impedes the administration of justice as defined
    in U.S.S.G. § 3C1.1 (or willfully attempts to do so), or engages in
    additional criminal conduct, the United States reserves the right to
    withdraw this recommendation without breaching this
    agreement.
    Plea Agreement, at 5, ¶ 5.c (emphasis added).
    Thus, according to the express terms of the plea agreement, the
    government’s obligation to recommend an acceptance-of-responsibility reduction
    was contingent upon its determination that Ms. Wilson continued to accept
    responsibility and did not testify falsely or give conflicting statements at her
    sentencing hearing. Here, the district court found that Ms. Wilson did just that:
    she perjured herself by giving false and conflicting testimony at the sentencing
    hearing and did not accept responsibility for her conduct.
    The government contended at sentencing that the amount of loss related to
    Ms. Wilson’s crime of conviction and related conduct exceeded $400,000.
    Ms. Wilson testified at the sentencing hearing for two days, attempting to deny
    -4-
    the government’s loss amount by denying, item-by-item, that her reimbursement
    claims were false. She was unable to provide receipts or other evidentiary
    support for her assertions. On cross-examination, she had to admit that many of
    the expense items that she had just testified were business expenses, were in fact,
    sham entries to cover personal expenses. At the conclusion of the hearing, the
    government noted that Ms. Wilson denied and contested items that were easily
    proven to be for her personal benefit, and argued to the court that it should
    consider whether she had actually accepted responsibility and whether she had
    falsely denied relevant conduct. It did not recommend a sentence reduction for
    acceptance of responsibility and, when questioned by the court, took the position
    that Ms. Wilson had defeated any claim to an acceptance-of-responsibility
    reduction.
    The district court agreed, finding that Ms. Wilson “blatantly perjured
    herself before this court,” “acted in bad faith, . . . and . . . in effect denied
    acceptance of responsibility for any” of her actions. Tr. Sentencing Hr’g, Vol. 3,
    at 404, 405. The court described in detail many of the inconsistencies and
    implausibilities in her testimony, as well as instances in which her testimony was
    directly contradicted by the government’s evidence. Id. at 368-407. The court
    noted some examples of her perjured testimony, but commented that it would take
    “six or eight hours” to go through all of the instances of her perjury. Id. at 406.
    The court also noted that when Ms. Wilson was confronted on cross-examination
    -5-
    with evidence that her reimbursement claims were for her personal expenses, she
    repeatedly characterized them as simply mistakes, and it concluded that
    Ms. Wilson was essentially denying that she had engaged in a scheme to defraud,
    though she had previously admitted to such when she pleaded guilty. Id. at 405.
    It denied any reduction for acceptance of responsibility and found that the total
    loss from Ms. Wilson’s scheme to defraud was, conservatively, $429,645.98. Id.
    at 396. The court concluded that Ms. Wilson had “no real remorse for stealing
    almost half a million dollars” from her employer, and that in six years of
    sentencing hundreds, even thousands, of defendants, it had “never seen a
    defendant who was less remorseful or less sorry for her actions” than Ms. Wilson.
    Id. at 412.
    The plea agreement expressly stated that the government’s promise to
    recommend an acceptance-of-responsibility reduction was contingent on
    Ms. Wilson testifying truthfully, not falsely or frivolously contesting relevant
    conduct, and actually accepting responsibility for her conduct. Further, it
    expressly stated that if Ms. Wilson did testify falsely, give inconsistent
    statements, or falsely and frivolously deny relevant conduct, it would not
    constitute a breach of the agreement if the government withdrew a § 3E1.1
    acceptance-of-responsibility recommendation. We conclude based on the nature
    of the agreement, Ms. Wilson’s reasonable understanding of those terms, and the
    record as a whole – including the district court’s finding that she perjured herself
    -6-
    at the sentencing hearing, falsely denied relevant conduct, and did not actually
    accept responsibility for her scheme to defraud – that the government did not
    breach the plea agreement by not recommending a § 3E1.1 reduction. See United
    States v. Moreno-Trevino, 
    432 F.3d 1181
    , 1187 (10th Cir. 2005) (finding
    government did not breach plea agreement when it declined to recommend
    § 3E1.1 reduction after reasonably exercising its discretion under the agreement
    to conclude defendant no longer warranted a reduction).
    Ms. Wilson does not argue that her waiver of appellate rights is otherwise
    invalid under the framework set forth in Hahn, 
    359 F.3d at 1325
    . Accordingly,
    the government’s motion to enforce the appeal waiver is GRANTED, and the
    appeal is DISMISSED.
    ENTERED FOR THE COURT
    PER CURIAM
    -7-
    

Document Info

Docket Number: 07-3342

Citation Numbers: 268 F. App'x 804

Judges: Holmes, Kelly, Murphy, Per Curiam

Filed Date: 3/11/2008

Precedential Status: Non-Precedential

Modified Date: 8/3/2023