Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: January 14, 2009
Before MURPHY and SMITH, Circuit Judges, and LIMBAUGH, District Judge.*fn1
Tyler M. Leach, after entering into a written plea agreement with the government, pleaded guilty to knowingly using a facility of interstate commerce to attempt to entice a minor into engaging in illegal sexual conduct, in violation of 18 U.S.C. § 2422(b). During resentencing,*fn2 the district court*fn3 sentenced Leach to 120 months' imprisonment. Leach appeals, arguing that the government breached a "possible oral agreement" to recommend the low end of the Guidelines range at sentencing. According to Leach, the government's request for a sentence at the high end of the Guidelines range breached its negotiated duty under the plea agreement. Thus, he contends that he should be relieved from his reciprocal duty not to seek a sentence below the Guidelines range and have the opportunity on remand to ask for a sentence below ten years' imprisonment. We affirm.
The government charged Leach in a three-count indictment with knowingly using a facility of interstate commerce to attempt to entice a minor into engaging in illegal sexual conduct, in violation of 18 U.S.C. § 2422(b) ("Count One"); traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with another person, in violation of 18 U.S.C. § 2423(b) ("Count Two"); and criminal forfeiture, pursuant to 18 U.S.C. § 2253 ("Count Three"). Leach entered into a plea agreement, pleading guilty to Count One in return for the government dropping Count Two and Count Three. In the plea agreement, Leach acknowledged that he was subject to a five-year minimum sentence and a 60-year maximum sentence under 18 U.S.C. § 2426(a) because his "offense occurred after [Leach] had a prior sex offense conviction."
Relevant to the present appeal, ¶ 10(h) of the plea agreement provided that the United States agrees not to seek an upward departure from the Guidelines or a sentence outside the Guidelines range, and defendant agrees to not seek a downward departure from the Guidelines or a sentence outside the Guidelines range. The agreement by the parties to not seek a departure from the Guidelines is not binding upon the Court or the United States Probation Office and the Court may impose any sentence authorized by law, including any sentence outside the applicable Guidelines range that is not "unreasonable" . . . .
Additionally, ¶ 11 of the plea agreement specified that both Leach and the government acknowledged and agreed "that there are no agreements between the parties with respect to any Sentencing Guidelines issues other than those specifically listed in Paragraph 10, and its subsections. As to any other Guidelines issues, the parties are free to advocate their respective positions at the sentencing hearing."
In ¶ 15 of the plea agreement, Leach waived his appellate and post-conviction rights. In ¶ 19, Leach affirmed that "no threats or promises, other than the promises contained in this plea agreement, have been made by the United States, the Court, his attorneys or any other party to induce him to enter his plea of guilty." Finally, ¶ 20 provided:
No Undisclosed Terms. The United States and defendant acknowledge and agree that the above-stated terms and conditions constitute the entire plea agreement between the parties, and that any other terms and conditions not expressly set forth in this agreement do not constitute any part of the parties' agreement and will not be enforceable against either party.
At the change-of-plea hearing, Leach reaffirmed that there were no promises "other than the Plea Agreement itself" that caused him to plead guilty. At his original sentencing, the district court asked the government whether it was seeking a sentence in excess of 63 months-the top of what the district court believed was Leach's Guidelines range. In response, the government stated, "I believe [the government's] oral agreement with Mr. Moss [Leach's attorney] if not in writing somewhere along the line was to offer the bottom of the guideline range . . . after the final calculation." The government argued that the correct Guidelines range was 168 to 210 months' imprisonment pursuant to U.S.S.G. § 4B1.5(a), but the district court refused to apply the enhancement, finding that 60 to 63 months' imprisonment was the applicable Guidelines range. The government objected to the district court's ruling that the enhancement did not apply. The government then made three separate sentencing recommendations based on the three Guidelines ranges that might potentially have applied to Leach, each time recommending a sentence at the low end of the Guidelines range. In conjunction with these recommendations, the government stated:
Because the Court has ruled against the Government on both of these enhancements, we are left with, as already noted, the range of 60 to 63 months. And while there has been some discussion on the record and just with Mr. Moss on whether the Government orally agreed to recommend the bottom of the guideline range, essentially [neither]*fn4 Mr. Moss [n]or the Government can remember if there was an oral agreement to that.
The district court sentenced Leach to 72 months' imprisonment. The government appealed, contending that the district court erred in not applying § 4B1.5(a) or, in the alternative, § 4B1.5(b). Leach, 491 F.3d at 859. After holding that § 4B1.5(a) applied to Leach, this ...