United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief District Judge.
Pending before the court is defendant Clayton High Wolf's oral motion to enforce the plea agreement with the United States and to sustain the defendant's objection to a portion of the presentence investigation report ("PSR"). Mr. High Wolf's motion seeks to prohibit the government from putting on any evidence to support paragraph 20 of the PSR which includes a specific offense characteristic that the defendant possessed a firearm in relation to the offense to which he pled guilty (the "firearm characteristic"). (Docket 79). Pursuant to U.S.S.G. § 2D1.1(b)(1), inclusion of the firearm characteristic adds two levels to the offense level computation. See PSR ¶ 20. The government resists defendant's motion. (Docket 78).
The government and defendant entered into a plea agreement. (Docket 64). This is a non-binding plea agreement under which the defendant is not allowed to withdraw his guilty plea if the court rejects the parties' sentencing recommendations. Id. at ¶ B; see also Fed. R. Crim. P. 11(c)(1)(A) and (B) (referenced in paragraph B of the plea agreement). Mr. High Wolf agreed to plead guilty to count 1 of the indictment which charged him with participating in a conspiracy to distribute a controlled substance, methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a) and 841(b)(1(B). Id . ¶ C. Upon the court's acceptance of Mr. High Wolf's guilty plea and sentencing, the government agreed to dismiss the remaining count and the forfeiture allegation of the indictment. Id.
On May 22, 2014, Mr. High Wolf appeared before United States Magistrate Judge Veronica L. Duffy for a change of plea hearing. (Docket 70). Following the advisement of rights, Mr. High Wolf entered a plea of guilty to count 1 of the indictment. Id . Magistrate Judge Duffy recommended the court accept Mr. High Wolf's guilty plea and that he be adjudged guilty of the offense of conspiracy to distribute a controlled substance. Id. at p. 2. On June 3, 2014, the court adopted the report and recommendation of the magistrate judge and Mr. High Wolf was "adjudged guilty of conspiracy to distribute a controlled substance as charged in count I of the indictment." (Docket 73 at p. 1). A PSR was ordered and a sentencing hearing scheduled. Id. at p. 2.
Senior United States Probation Officer Rick Holloway prepared a PSR dated September 15, 2014, which included the firearm characteristic. "[U.S.S.G.] Section 2D1.1(b)(1) mandates a two-level enhancement if the Government can prove by a preponderance of the evidence that the defendant possessed a dangerous weapon (including a firearm) while violating 21 U.S.C. § 841(b)." United States v. Savage, 414 F.3d 964, 966 (8th Cir. 2005) (citing U.S.S.G. § 2D1.1(b)(1); internal quotation marks and other citation omitted).
Mr. High Wolf timely objected to the firearm characteristic and all facts stated in the PSR which supported the firearm enhancement. See addendum to PSR, objection #1. For the firearm characteristic to apply over the defendant's objection, the government must prove by a preponderance of the evidence that the firearm was possessed by the defendant, either actually or constructively, and that it is was not "clearly improbable that the weapon was connected to the offense." United States v. Anderson, 618 F.3d 873, 880 (8th Cir. 2010). See also Fed. R. Crim. P. 32(i)(3)(B) (the court "must-for any disputed portion of the presentence report or other controverted matter-rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing....").
Because the firearm characteristic was not included in the plea agreement or the factual basis statement,  Mr. High Wolf argues the government is prohibited from presenting evidence in support of the enhancement. (Docket 79 at p. 3). Mr. High Wolf asserts the plea agreement was detailed in all respects encompassing the agreement of the parties. Id . Mr. High Wolf points out the plea agreement included stipulations regarding an offense level based on drug quantity, identifying Mr. High Wolf as an average participant in the offense, and regarding a specific adjustment for acceptance of responsibility. Id . Mr. High Wolf argues the plea agreement is unambiguous and the government should be bound to its terms. Id.
Mr. High Wolf argues by paragraph F of the plea agreement the government agreed to make no sentencing recommendation and is precluded from presenting evidence in support of the firearm enhancement. Id. at p. 5. He argues "[b]y putting on evidence to support this enhancement the government is in fact [arguing for] a higher sentence then [sic] what would have otherwise been given had [the government] not presented the evidence." Id . By his line of reasoning, if the government presents evidence in support of the firearm enhancement, it would be violating paragraph F of the plea agreement. Id.
Mr. High Wolf seeks an order requiring specific performance of the terms of the plea agreement. He argues allowing the government to do otherwise would create a significant and prejudicial consequence to the defendant. He submits the government should be precluded from presenting evidence on the firearm enhancement because his "detrimental reliance has been great" as he relied on the plea agreement and "sat down with probation and made numerous admissions to the offense to which he pled guilty." Id.
The government argues there has been no breach of the terms of the plea agreement. (Docket 78 at p. 5). The government asserts "[t]he issue of the application of U.S.S.G § 2D1.1(b)(1) is rarely addressed in drug offense plea agreements in this District." Id. at p. 4. The government represents that in only one case in the past four and one-half years has the firearm enhancement been included in the plea agreement. See United States v. Gossell, CR. 11-50035-02-JLV (D.S.D. 2011) (Docket 75 at ¶ G) ("it is further stipulated that pursuant to U.S.S.G. § 2D 1.1(b)(1), the offense level should be increased by 2, in that the offense involved the possession of a firearm....").
In the only other case identified by the government, the firearm enhancement was specifically excluded. (Docket 78 at p. 4). See United States v. Ojeda, CR. 11-50023-02-JLV (D.S.D. 2011) (Docket 99 at ¶ H) ("It is further stipulated between the United States and the Defendant that the offense level should not be adjusted pursuant to U.S.S.G. § 2D1.1(b)(1) in that the Defendant's offense conduct readily provable by the United States does not expose him to an increase in his offense level for possession of a dangerous weapon.").
The government cites to other two cases in which the firearm enhancement was not discussed in the plea agreement, yet the two-level enhancement was included in the defendants' PSRs. (Docket 78 at pp. 4-5). In one case, there was no objection and in the other case, the objection to the firearm enhancement was withdrawn. Id. at p. 5.
The provisions of the plea agreement relevant to the issue before the court are paragraphs F, G, H, K, and P. Paragraph F provides "[t[he United States and the Defendant agree that the United States will make no recommendation with respect to sentencing in this case. The United States reserves the right to rebut or clarify matters raised by the Defendant in mitigation of his sentence." (Docket 64 ¶ F). Paragraph G states:
It is understood and stipulated between the United States and the Defendant that the base offense level upon which the Defendant's sentence is to be initially calculated, pursuant to U.S.S.G. § 2D1.1(c))6), is 28, in that the Defendant's offense conduct and relevant conduct readily provable by the United States involved at least 200 grams but less than 350 grams of methamphetamine. It is further understood that the Defendant will move for, and the United States will not oppose, a two level downward variance based on the 2014 proposed amendments to the Drug Quantity Table. The Defendant agrees that if he makes a request for a two-level downward variance based on the proposed rules and the Court grants his request, he will not seek a further reduction pursuant to 18 U.S.C. § 3582(c) on the basis of the two-level reduction in the event the two-level reduction is adopted and made retroactive by the Sentencing Commission. If the Defendant is sentenced after the proposed amendments become effective, it is ...