Unpublished Disposition, 898 F.2d 157 (9th Cir. 1990)

MEMORANDUM^* 

Defendant-appellant James A. Patton ("Patton") was indicted with three codefendants and charged with five counts: (I) conspiracy to manufacture, distribute and possess with intent to distribute phencyclidine (PCP), 21 U.S.C. § 841(a) (1) (1988); (II) aiding and abetting the manufacture of PCP, 18 U.S.C. § 2 (1988); (III) possession with intent to distribute PCP, 21 U.S.C. § 841(a) (1) (1988); (IV) intent to distribute PCP, id.; and (V) possession with intent to distribute PCP, id. Pursuant to a plea bargain, Patton agreed to plead guilty to Counts I, III and IV, in exchange for the Government's (1) motion to dismiss Counts II and III at sentencing, and (2) withdrawal of the information it filed pursuant to 21 U.S.C. § 851 (1988) (written statement of prior convictions to be relied upon by the Government). Patton appeals the denial of his motion to withdraw his guilty plea and the district court's application of the Sentencing Guidelines. We affirm.

We conclude that none of four grounds asserted by Patton convinces us that the district court abused its discretion in denying his presentence motion to withdraw his guilty plea pursuant to Fed. R. Crim. P. 32(d). United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988).

First, Patton contends he was not properly apprised of the "maximum possible penalty," as required by Fed. R. Crim. P. 11(c) (1), when he was sentenced to 330 months in prison under the Guidelines after he had been originally advised of an estimated 267-to-327-month Guideline range at the earlier Rule 11 hearing. In ascertaining whether any improprieties occurred, we "look solely to the record of the plea proceeding." United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372-73 (9th Cir. 1988). At the Rule 11 hearing, after advising Patton of the maximum life imprisonment sentence under pre-Guidelines law, the district court alternatively informed Patton that the Guidelines "may apply to this case" depending upon the outcome of the then pending Supreme Court case. See Mistretta v. United States, 109 S. Ct. 647 (1989). The court expressly told Patton the Guideline calculation was a "best estimate based upon the facts" available and was "not binding." We agree with the Government that this case is controlled by United States v. Turner, 881 F.2d 684, 686-87 (9th Cir.), cert. denied, 110 S. Ct. 199 (1989).

Second, Patton asserts the terms of the plea agreement were at least misleading (and possibly violated) when his prior state court felony narcotics conviction was used in calculating his Guideline sentence, citing Santobello v. New York, 404 U.S. 257, 262 (1971). Whether a plea agreement has been breached is evaluated under contract law. United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985), cert. denied, 479 U.S. 835 (1986). The district court construed the plea bargain as enabling withdrawal of the prior conviction for purposes of any pre-Guidelines sentence but not precluding consideration of this conviction for a Guidelines sentence. There is no factual dispute that the Government agreed to withdraw its previously filed section 851 information concerning Patton's prior conviction.

Although the plea was entered when there was doubt concerning the constitutionality of the Guidelines, we conclude Patton received the benefit of the bargain struck. See, e.g., United States v. Wright, 873 F.2d 437, 441 (1st Cir. 1989). Patton was apprised during the plea hearing of the possibility of sentencing under the Guidelines. Importantly, the Government could not--and did not--promise that the district court would definitely impose a lower sentence by excluding any consideration of the prior felony. Under Rule 11, the court was not obligated to accept any plea agreement reached by the parties. In the absence of any demonstration of an unfulfilled promise under the plea agreement or that the plea was not intelligently and voluntarily made, we conclude the district court properly considered the prior state felony conviction in imposing Patton's sentence.

Third, Patton contends the district court failed to warn him before entry of his plea of the unavailability of parole as a direct consequence of a plea and conviction under the Sentencing Guidelines. The Government correctly notes that we have twice previously considered and rejected this issue. See United States v. Marco L., 868 F.2d 1121, 1125 (9th Cir.) (citing United States v. Sanclemente-Bejarano, 861 F.2d 206, 209 (9th Cir. 1988) (per curiam)), cert. denied, 110 S. Ct. 369 (1989). Patton's principal Ninth Circuit authority, Munich v. United States, 337 F.2d 356, 361 (9th Cir. 1964), overruled on other grounds, Heiden v. United States, 353 F.2d 53, 55 (9th Cir. 1965), construed Rule 11 as amended in 1961, which has now been superseded in relevant part by a 1974 amendment to Rule 11. See Sanclemente-Bejarano, 861 F.2d at 208.

Finally, Patton also asserts that his guilty plea was the product of an atmosphere of coercion created by the district court and the prosecutor. No authority is cited to support this contention. No suggestion of coercion was raised by Patton or his counsel at either the hearing on the motion to withdraw plea or the subsequent sentencing hearing. After conducting a full Rule 11 plea hearing, in which Patton testified under oath, the district court expressly found that "the defendant is free of any coercive influence" and the guilty pleas were made by Patton "voluntarily with understanding of the nature of the charges and consequences of the plea." After a review of the record, we conclude this finding has not been shown to be clearly erroneous. United States v. Castello, 724 F.2d 813, 815 (9th Cir.), cert. denied, 467 U.S. 1254 (1984).

Patton presents two challenges to the district court's application of the Sentencing Guidelines: (1) whether Patton's prior state conviction was properly considered and (2) whether Patton's offense level was erroneously increased upon the determination that Patton was an "organizer, leader, manager, or supervisor."

The Sentencing Guidelines clearly contemplate the consideration of a defendant's prior criminal history. U.S.S.G. Sec. 4A, 4.1-4.10 (Nov. 1989). The district court included Patton's prior state court felony narcotics conviction in calculating his sentence.

Patton contends that his prior conviction should not have been considered in light of the plea bargain. He relies again upon his Santobello argument that he did not allegedly receive the benefit of his plea bargain. Because Patton has not established a breach of his plea bargain, and because the Guidelines expressly permit consideration of prior convictions, we conclude the district court properly considered his prior state court conviction.

Finally, Patton argues the district court should not have increased his offense level by two levels, pursuant to U.S.S.G. Sec. 3B1.1(c), at 3.5 (Nov. 1989), upon finding that Patton was an "organizer, leader, manager, or supervisor." Patton contends, instead, that his role was merely as an aider and abettor. We apply a clearly erroneous standard of review to a section 3B1.1 aggravating role finding. See 18 U.S.C. § 3742(e) (1988); see also United States v. Clark, 889 F.2d 1056, 1057 (11th Cir. 1989) (section 3B1.1(c) finding); United States v. Silverman, 889 F.2d 1531, 1540 (6th Cir. 1989) (section 3B1.1(b)); United States v. Herrera, 878 F.2d 997, 1000, 1002 (7th Cir. 1989) (section 3B1.1(c)); United States v. Mejia-Orosco, 867 F.2d 216, 220-21, 222 (5th Cir.) (section 3B1.1(c)), amended, 868 F.2d 807 (5th Cir.) (per curiam), cert. denied, 109 S. Ct. 3257 (1989); cf. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989) (section 3B1.2 "minimal" or "minor" participant determination reviewed under clearly erroneous standard).

Our review of the factual basis for Patton's guilty plea to Counts I, III and IV at his Rule 11 hearing supports the district court's determination. Patton's counsel presented the factual basis for each count and indicated Patton assisted in the manufacture of PCP under a Pinkerton theory. See Pinkerton v. United States, 328 U.S. 640, 646-47 (1946). Patton's counsel stated and Patton admitted under oath that his role was to collect the $10,000 from the PCP sale and he assisted in concealing and storing the PCP at his sister's place. Patton further admitted knowingly cleaning and washing certain articles pertaining to the PCP operation and telephoning one of the codefendants to pick up the money from the PCP sale. Because these representations demonstrated Patton's control over the stored PCP and his role in collecting the money, we conclude the court's section 3B1.1 determination was not clearly erroneous.

AFFIRMED.