NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 11, 2012
Decided December 20, 2012
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS , Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐1505 Appeal from the
United States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff‐Appellee, Eastern Division.
v. No. 08 CR 530
DWAYNE E. WILLIAMS, Ronald A. Guzmán,
Defendant‐Appellant. Judge.
O R D E R
Dwayne Williams challenges his 125‐month prison sentence for possession of heroin.
He argues that the district court permitted the government to violate his plea agreement by
presenting evidence at his sentencing hearing beyond the facts stipulated in the agreement.
At that hearing the government introduced testimony from one of Williams’s drug
suppliers that substantially increased the amount of drugs attributed to him. We conclude
that the court did not err in allowing the evidence because the government never agreed to
limit the evidence of relevant conduct presented at sentencing to that stipulated in the plea
agreement.
Williams pleaded guilty to possession of heroin with intent to distribute,
see
21 U.S.C. § 841(a)(1). He admitted to purchasing 500 grams of heroin, selling most of it,
No. 12‐1505 Page 2
and storing the rest in the trunk of his car for later sale. He also admitted that he hid crack
cocaine in the same trunk and had sold more than 600 grams of cocaine to an informant. In
a written plea agreement, the parties agreed that based on then‐known facts, he was
accountable for the equivalent of between 400 and 700 kilograms of marijuana, yielding a
base offense level of 28. The parties also reserved the right to dispute a 2‐level increase
based on the government’s contention that Williams possessed a firearm in connection with
his offense. And the government agreed to recommend up to a 3‐level reduction for
Williams’s acceptance of responsibility. With these adjustments in mind, the parties
anticipated an adjusted offense level of 27, which combined with Williams’s zero criminal‐
history points would provisionally result in a guidelines range of 70 to 87 months’
imprisonment.
Both parties agreed that the guidelines calculations were “preliminary in nature.”
Williams also acknowledged that the calculations were “non‐binding predictions upon
which neither party is entitled to rely,” that they were based on “facts now known to the
government,” and that after “further review of the facts,” the government may conclude
that different or additional guidelines provisions applied. The parties remained free to
recommend whatever sentence they deemed appropriate, and either party could correct
errors in applying any of the guidelines by stipulation or by statement to the Probation
Office or the district court.
Four months later, when the government submitted its version of the offense to the
probation office, it revised its calculations. It stated that based on an upcoming cooperation
agreement with one of Williams’s suppliers Emmeterio Gutierrez, it intended to present
evidence at sentencing of additional drug quantities attributable to Williams. Then, a few
days before the scheduled sentencing hearing, the government estimated in its sentencing
memorandum that this new evidence would raise the amount of cocaine attributable to
Williams to the equivalent of 19,000 kilograms of marijuana. By raising the attribution of
marijuana from 700 to 19,000 kilograms of marijuana, the government’s calculations
increased his base offense level from 28 to 36. Williams complained that this evidence
should not be considered because it constituted an unfair surprise. He emphasized that the
government knew about Gutierrez’s evidentiary proffer as long as two years before it
reached its plea agreements with Williams and Gutierrez. He also insisted that the new
evidence was not sufficiently credible or relevant to his offense.
At the sentencing hearing held five months later, the government called Gutierrez to
testify to additional drug quantities. Williams renewed his objection to the testimony as
irrelevant. He also argued that if the government had believed Gutierrez when, two years
earlier, he first proffered his account of the larger amount of drugs attributable to Williams,
it should have indicted Williams for those quantities then.
No. 12‐1505 Page 3
The district court overruled Williams’s objections because, the court reasoned, the
government could not fully rely on Gutierrez’s testimony until after it had reached its
cooperation agreement with him. The court further found Gutierrez’s testimony credible
and that Williams could not argue unfair surprise because he knew about the events to
which Gutierrez testified. The court calculated a guidelines range of 108 to 135 months’
imprisonment and sentenced Williams to 125 months.
The sole issue on appeal is whether the government breached its plea agreement
with Williams by having Gutierrez testify to additional relevant conduct beyond the facts
discussed in the plea agreement. Because the agreement states that Williams was
responsible for at most the equivalent of 700 kilograms of marijuana, yielding a base offense
level of 28, Williams contends that the government could not present further evidence
yielding a higher base offense level.
As a preliminary matter, the parties debate whether Williams forfeited this
contention by failing to object in the district court that the government had breached the
plea agreement. “Forfeiture occurs when a defendant negligently fails to assert a right in a
timely fashion.” United States v. Brodie,
507 F.3d 527, 530 (7th Cir. 2007). An objection to a
particular guidelines calculation does not necessarily preserve for appeal a claim that, by
proposing the calculation, the government breached a plea agreement. See Puckett v. United
States,
556 U.S. 129, 133 (2009) (distinguishing defendant’s preserved argument that he
should receive a reduction for acceptance of responsibility from an unpreserved argument
that the government had breached their plea agreement by opposing the reduction); United
States v. Winters,
695 F.3d 686, 689 (7th Cir. 2012) (finding defendant had not objected to
alleged breach of plea agreement where he only objected to application of career‐offender
status that raised his base offense level above agreed level).
Williams maintains that he adequately preserved his contention, but he is mistaken.
Although Williams did twice object to the government’s attempt to introduce further
evidence of relevant conduct, the government is correct that he never contended that the
government’s proffer breached its plea agreement. In fact, Williams never even mentioned
any particular provisions of the agreement, let alone maintained that a provision was
breached. Rather, he complained only that the evidence should be precluded because it
should have been produced earlier and was not credible. True, Williams’s sentencing
memorandum cites United States v. Artley,
489 F.3d 813 (7th Cir. 2007)—a decision that
addresses the alleged breach of a plea agreement; he cited it again at the sentencing hearing.
But Williams’s reliance on Artley was insufficient to preserve the alleged error because he
cited only that decision’s discussion of the reasonableness of the defendants’ sentences.
No. 12‐1505 Page 4
See
489 F.3d at 824. Williams therefore forfeited this argument, so we review it only for plain
error. Puckett,
556 U.S. at 143; Winters, 695 F.3d at 689; Artley,
489 F.3d at 824.
But even if we were to give the matter plenary review, our conclusion would be the
same: The district court acted properly because the government did not breach its plea
agreement. Williams correctly observes that the government is strictly bound to fulfill any
promise offered in consideration of a guilty plea. See Santobello v. New York,
404 U.S. 257, 262
(1971); United States v. OʹDoherty,
643 F.3d 209, 217 (7th Cir. 2011). We interpret the terms of
a plea agreement “according to the parties’ reasonable expectations,” construe any
ambiguities against the government, and hold the government to the literal terms of the
plea agreement construed as a whole. O’Doherty,
643 F.3d at 217 (citing United States v.
Monroe,
580 F.3d 552, 556 (7th Cir. 2009); United States v. Woods,
581 F.3d 531, 534 (7th Cir.
2009)); United States v. Schilling,
142 F.3d 388, 395 (7th Cir. 1998).
Williams could not, however, have reasonably expected the government to be bound
by the agreement’s calculations of a base offense level of 28 given the other terms of the
agreement. See O’Doherty,
643 F.3d at 217–18; Schilling,
142 F.3d at 396; United States v.
Billington,
844 F.2d 445, 450 (7th Cir. 1988). Williams acknowledged that the agreement’s
calculations were “preliminary in nature,” that they were “non‐binding predictions upon
which neither party is entitled to rely,” and that the government could change its
recommended range based on “further review of the facts.” Emphasizing its provisional
nature, the agreement also states that the calculated guidelines range was “based on the
facts now known to the government,” thereby connoting that a different range might be
calculated if additional facts arose. And the agreement further alerted Williams that the
government was not limited to the relevant conduct that Williams admitted because it also
provides that the government would “fully apprise” the district court about Williams’s
conduct related to the charges against him, as it did in its presentencing submissions. Under
these provisions, the government was free to provide additional evidence of relevant
conduct. See O’Doherty,
643 F.3d at 217–18 (concluding that the government was not limited
to the relevant conduct recounted in a plea agreement containing nearly identical terms to
Williams’s).
Williams responds that because the plea agreement was based on “facts now known
to the government” and the government had “known” about Gutierrez’s proffer two years
earlier, the government could not base additional relevant conduct on that proffer. But
because he bears the burden of proving breach, Puckett,
556 U.S. at 141; Artley,
489 F.3d at
824, Williams must show that the government had enough confidence in Gutierrez’s earlier
assertions to constitute “facts now known” to it. The district court found no evidence that
the government treated those earlier assertions as “facts,” and nothing in the record
suggests that its finding was clearly erroneous. See United States v. Diaz,
922 F.2d 998, 1007
No. 12‐1505 Page 5
(2d Cir. 1990) (affirming as not clearly erroneous district court’s finding that government
did not have earlier knowledge of misconduct, even if it had “suspicions”). To the contrary,
the record suggests a lack of confidence because, as Williams agrees, the government did not
indict Williams for the additional conduct back when it first learned of it.
Williams next relies on United States v. Dewitt,
366 F.3d 667 (8th Cir. 2004), and
United States v. Tobon‐Hernandez,
845 F.2d 277 (11th Cir. 1988), to argue that the plea
agreement barred further evidence of relevant conduct, but both cases are distinguishable.
The government in Dewitt and Tobon‐Hernandez stipulated to specific drug quantities for
which the defendant was responsible. See Dewitt,
366 F.3d at 668; Tobon‐Hernandez,
845 F.2d
at 278. By contrast, the government here only agreed to “preliminary” calculations and drug
quantities based on Williams’s admitted conduct. Moreover, the plea agreements in Dewitt
and Tobon‐Hernandez do not appear to have contained the provisions found in the plea
agreement here that negate the reasonable expectation that the government would be bound
by specific offense quantities or offense levels. See O’Doherty,
643 F.3d at 218.
Finally, Williams argues that if the government wanted to reserve the right to
present evidence of additional relevant conduct, it should have negotiated the right
expressly, just as the parties reserved the right to dispute the firearm enhancement. But the
government did reserve the right to present additional evidence when Williams agreed that
the base offense calculation of 28 was “preliminary,” subject to change based on “further
review of the facts,” and “non‐binding.” Williams replies that if those terms give the
government the freedom to seek a higher base offense level, they render the parties’
reservation about the firearm enhancement superfluous. But the firearm reservation simply
shows that the parties were already engaged in a contest about that enhancement. It did not
prohibit the parties from disputing other issues.
Because the district court did not err, plainly or otherwise, in admitting the evidence
of additional relevant conduct, we AFFIRM the district court’s judgment.