United States v. Rounsaville, David , 243 F. App'x 176 ( 2007 )

NONPRECEDENTIAL DISPOSITION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
Submitted June 28, 2007
Decided July 3, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 07-1320
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 04 CR 993
DAVID ROUNSAVILLE,
Defendant-Appellant. Samuel Der-Yeghiyan,
Judge.
ORDER
David Rounsaville pleaded guilty to bank robbery, 18 U.S.C. § 2113(a), and
using and carrying a firearm in furtherance of a crime of violence, id.§ 924(c)(1)(A)(i). The district court sentenced him within the guidelines range to
110 months’ imprisonment for the bank robbery and to a mandatory consecutive
term of 60 months’ imprisonment for using the firearm. Rounsaville filed a notice of
appeal, but his appointed counsel moves to withdraw because he cannot discern a
nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). We
invited Rounsaville to comment on counsel’s motion, see Cir. R. 51(b), and he has
responded that he wants to challenge his sentence but does not add to the potential
grounds evaluated by counsel. Our review is thus limited to the potential issues
No. 07-1320 Page 2
identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d
968, 973-74 (7th Cir. 2002).
As part of its written plea agreement with Rounsaville, the government
stipulated that a two-level reduction under U.S.S.G. § 3E1.1(a) was “appropriate” if
Rounsaville continued to accept responsibility. The government also agreed to
move for an additional one-level reduction under § 3E1.1(b) if his offense level was
high enough to make him eligible for that further reduction. Rounsaville, however,
failed to appear for his sentencing, and when he was caught the government, not
surprisingly, opposed any reduction for acceptance of responsibility and instead
recommended a three-level increase under U.S.S.G. § 3C1.1 for obstruction of
justice. Rounsaville conceded that he had obstructed justice and thus lost his
chance for the first two acceptance points under § 3E1.1(a). But counsel argued
that the plea agreement still obligated the government to recommend one
acceptance point under § 3E1.1(b). Counsel pointed out that, while the plea
agreement expressly conditioned a reduction under § 3E1.1(a) on Rounsaville’s
continued acceptance of responsibility, the provision involving § 3E1.1(b),
paragraph 6(g), includes no similar language. In counsel’s view, paragraph 6(g)
conditioned the government’s duty solely on Rounsaville’s pleading guilty; that
paragraph reads:
Defendant has timely notified the government of his intention to
enter a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the Court to allocate its resources
efficiently, within the meaning of Guideline § 3E1.1(b). Accordingly, at
the time of the defendant’s sentencing hearing, the government will
move for an additional 1-level reduction in the offense level, provided
the Court determines the offense level to be 16 or greater prior to the
operation of Guideline § 3E1.1(a).
The district court rejected Rounsaville’s argument and adopted the government’s
position in full. The judge then considered but was unpersuaded by several
submissions Rounsaville offered in support of a sentence below the guidelines
range.
In his Anders submission, counsel first considers reiterating his argument
that the government breached the plea agreement by refusing to recommend one
acceptance point under § 3E1.1(b). Counsel concludes that it would be frivolous to
raise this argument on appeal because the district court ultimately imposed a
reasonable sentence.
Counsel’s reasoning is off the mark; although advisory, the guidelines still
must be properly calculated. United States v. Robinson, 435 F.3d 699, 700-01 (7th
No. 07-1320 Page 3
Cir. 2006). We would thus review Rounsaville’s interpretation of the plea
agreement, and do so de novo. United States v. Sowemino, 335 F.3d 567, 571 (7th
Cir. 2003). Nonetheless, we agree with counsel’s conclusion that an argument
premised on the plea agreement and § 3E1.1(b) would be frivolous because we could
not conclude that the government breached the agreement. Since plea agreements
are contracts, their content and meaning are determined according to ordinary
contract principles. See United States v. Pappas, 409 F.3d 828, 830 (7th Cir. 2005).
The terms of promises must be read according to their natural meaning, United
States v. Salazar, 453 F.3d 911, 914 (7th Cir. 2006), and in light of the parties’
reasonable expectations, United States v. Atkinson, 259 F.3d 648, 654 (7th Cir.
2001); United States v. Matchopatow, 259 F.3d 847, 852 (7th Cir. 2001). The
“natural meaning” of paragraph 6(g) is that the government would move for a third
acceptance point under § 3E1.1(b) only if Rounsaville qualified for the first two
points under § 3E1.1(a). This meaning is easily gleaned from the paragraph’s plain
language, which refers to an “additional one point reduction” (emphasis added).
Plus, according to the guidelines, the one-point reduction in § 3E1.1(b) is available
only “[i]f the defendant qualifies for a decrease under subsection (a).” U.S.S.G.
§ 3E1.1(b); see id. cmt. n.6; United States. v. Davila-Rodriguez, 468 F.3d 1012, 1014
(7th Cir. 2006). Rounsaville therefore could not have “reasonably expected” the
government to move for an acceptance point under § 3E1.1(b) after he conceded,
rightfully, that his flight ended any claim to the first two acceptance points
available under § 3E1.1(a). See United States v. Buckley, 192 F.3d 708, 711 (7th
Cir. 1999) (“[We] do not see how obstruction of justice at the sentencing hearing can
be thought consistent with acceptance of responsibility.”).
Counsel also considers challenging the reasonableness of Rounsaville’s
overall prison sentence. We agree with counsel that such a challenge would be
frivolous. Rounsaville’s guidelines-range sentence is presumed reasonable, see
United States v. Gama-Gonzales, 469 F.3d 1109, 1110 (7th Cir. 2006), but we would
find Rounsaville’s sentence reasonable even without that presumption. See United
States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted,
75 U.S.L.W 3246 (U.S. Nov. 3, 2006) (No. 06-5754). The district court gave
meaningful consideration to the relevant factors under 18 U.S.C. § 3553(a), see
United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006), and counsel is unable to
articulate any basis for arguing that the sentence imposed is unreasonable.
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.