Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

MEMORANDUM^* 

Peter Gordon Howe appeals his pre-guidelines sentence on charges relating to illegal drug manufacture and money laundering.¹  He contends that the government did not comply with the initial plea agreement and that the district court failed to make findings on or delete disputed facts from the presentence report.

The parties agreed to a $75,000 fine, to the dismissal of Count II, charging the conspiracy to manufacture methequalone, and that "the question of assets and/or monetary gain are not to be a part of sentencing proceedings but are to be reserved by Govt for possible grand jury." Defense counsel added the latter handwritten phrase to the typed plea agreement, and the government agreed. The district court questioned both defense counsel and the government about the meaning of the added language, and then accepted Howe's guilty plea to conspiracy to manufacture methamphetamine in violation of 18 U.S.C. § 846, Count I of the indictment, and to conspiracy to defraud the United States by impeding the collection of income taxes in violation of 18 U.S.C. § 371, Count III.

At the sentencing hearing, the parties disputed the meaning of the handwritten portion of the plea agreement. The defendant argued that portions of the presentence report were in violation of the plea agreement, inaccurate, and should be deleted. The primary dispute centered on statements that Howe received $1.6 million as proceeds from the methamphetamine lab referred to in Count I and that he paid to have over $400,000 taken out of the country as referred to in Count III. The government argued that the statements were correct, and that it was free to inform the probation office of all relevant facts. In the government's view, the plea agreement bound it not to urge a stiffer sentence in compensation for the defendant's illegal gains.

The district court offered to proceed with the sentencing pursuant to its own interpretation of the plea agreement, which was that the court could not consider the profits or assets accumulated by the defendant, but could consider "the amounts of methamphetamine marketed or which could have been marketed as a result of the conspiracy, the sales value, if known, of that amount of methamphetamine, the amounts paid to the defendant or by the defendant in carrying out the conspiracy." The court explained that it would consider the $1.6 million paid to the defendant. The government found the court's interpretation satisfactory, but the defendant did not.

The district court found that the parties were acting in good faith but that they had "no meeting of the minds" with regard to an ambiguous and hastily written provision of the plea agreement. The district court expressed an intent to reject the plea agreement. The defendant did not wish to withdraw his plea and noted health problems as his reason for not wanting to go to trial. The district court said that he would be "delighted" if the parties presented him with a stipulation.

The defendant and the government reached a compromise during a recess, that the court could not consider the $1.6 million allegedly earned by the defendant, but could consider the $400,000 he sought to send out of the country. The district court accepted the modification. The defendant agreed that "if the sentencing goes forward on the basis of the plea agreement, as modified, that the Government will have complied with the plea agreement in that respect...."

After an evidentiary hearing on the disputed facts, the district court imposed a nine-year sentence on Count I, a concurrent five-year sentence on Count III, a $75,000 fine, and dismissed Count II. Howe appeals.

Plea Agreement

The defendant contends that the government improperly sought to avoid compliance with the plea agreement and that the district court's action improperly pressured him into renegotiating the plea agreement. We disagree.

In United States v. Partida-Parra, 859 F.2d 629, 634 (9th Cir. 1988), this circuit held that a district court cannot grant a government motion to rescind a plea agreement because of mistake and the lack of a "meeting of the minds." Federal Rule of Criminal Procedure 11(f) requires the district court to inquire whether there is a "factual basis for the plea," but this does not "authorize the court to vacate a plea on the basis of a discrepancy in the parties' understanding of the plea agreement."²  Id. at 631. In Partida-Parra, we would not permit the government to renege on a promise it had made in error.

Here, the government was willing to proceed pursuant to the court's interpretation of the plea agreement. It was the defendant who found the court's interpretation unacceptable. The district court was presented with two very different interpretations of the government's promise, and the court interpreted the promise in yet a third way. After the defendant objected to the court's interpretation of the plea agreement, the district court considered, sua sponte, rejecting the plea. Under these facts, the district court did not err. The defendant had three options: to be sentenced pursuant to the court's interpretation of the plea agreement, to proceed to trial, or to provide the court with a stipulated agreement between the parties.

The defendant chose to modify the agreement. He made only one concession, that the court could consider the $400,000 he conspired to send out of the country. Some discussion of this money may have been inevitable because it constituted the overt act in furtherance of the conspiracy to avoid taxes for Count III.

The purposes of the handwritten provision of the plea agreement were to limit the fine to $75,000, to prevent any further asset forfeiture in these criminal proceedings, and to delay determination of the amount of illegally obtained assets, if any, that Howe possessed.³  Although the defendant objects that the plea agreement was violated by the discussion of his alleged profits at the sentencing hearing, the primary objectives of the original plea agreement were served. The government did not seek forfeiture above the $75,000 fine and the district court decided to disregard the alleged $1.6 million profit.

The irregularity, if any, is harmless because the parties stipulated to a not unreasonable interpretation of the plea agreement, and the compromise was more favorable to the defendant than the district court's interpretation. Additionally, the defendant agreed that "if the sentencing goes forward on the basis of the plea agreement, as modified, that the Government will have complied with the Plea Agreement...." We conclude that the district court did not err in sentencing the defendant pursuant to the plea agreement, as modified.

Disputed Statements in the Presentence Report

Federal Rule of Criminal Procedure 32(c) (3) (D) requires that when the defendant alleges any factual inaccuracy in the presentence report, the court shall make "a finding as to the allegation, or ... a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing." "If the district court fails to make the required [Rule 32] findings or determinations, the sentence must be vacated and the defendant resentenced." United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc).

The defendant contends that the district court should have either made a finding or stricken from the presentence report the assertions that 1) the defendant received $1.6 million from Madlener as his share of profits from the methamphetamine lab, 2) the defendant supplied chemicals to Guariloff for one-third of the profits from a methaqualone lab, and 3) the defendant was involved in Madlener's first clandestine lab.⁴ 

After an evidentiary hearing, the district court decided to disregard the first two disputed statements regarding the defendant's alleged profits. Neither Rule 32 nor due process required that he strike them from the presentence report.⁵  See United States v. Robertson, 901 F.2d 733, 735 (9th Cir.), cert. denied, 111 S. Ct. 395 (1990); see also United States v. Turner, 898 F.2d 705, 710 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990). Nor did anything in the plea agreement obligate the government to withhold information from the probation department.

After Madlener testified, defense counsel orally moved to strike the third assertion from the presentence report. Defense counsel objected to the third paragraph on page 3 of the presentence report, which stated:

According to Madlener, beginning in late 1983, he purchased from defendant a 55 gallon drum of methylamine, a precursor chemical necessary for the manufacture of methamphetamine using the phenyl-2-propanone method. At that time, the defendant owned ChemWest, a chemical and laboratory supply corporation in Seattle. At the time that Howe sold the methylamine to Madlener, he told Madlener that he knew Madlener intended to use the methylamine for the manufacture of methamphetamine and thereafter, arranged for a surreptitious delivery of chemicals to Madlener. Madlener advised that from the 55 gallons of methylamine, he produced 50 to 100 pounds of methamphetamine.

Defense counsel commented that the sale was legal and that Madlener testified that the defendant was not involved with his first lab other than the sale. The district court denied the motion to strike and commented that "the transcript of the hearing will reflect the witness's testimony here."⁶  At the end of the hearing, the district court made findings of fact or determined to disregard each written objection to the presentence report, and said, "Now with that supplement, I do find as facts the facts stated in the presentence report with the exceptions that I have noted."

The government argues that the third assertion was not truly disputed because defense counsel acknowledged the unrefuted testimony that the defendant provided methylamine for Madlener's first lab. Also we note that the district court found that when the defendant sold methylamine to Madlener he knew that Madlener intended to use it to manufacture methamphetamine. Although it is difficult to specify what remained of the defendant's objection after this defense acknowledgement and court finding, the objection was never withdrawn, and some finding was necessary.

In United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990), neither the guidelines nor Rule 32 were violated when the district court heard the defendant's objections to the presentence report and then said "that the probation report and addendum correctly computes the guidelines range...." In Rigby, the defense objections were vigorously argued and there was no confusion about the court's ruling. The record reveals no confusion here either. The district court denied the defendant's motion to delete the disputed statement from the presentence report and expressly adopted the presentence report findings as his own. Under these circumstances, we conclude that there was no Rule 32 violation.

Conclusion

The district court did not err in sentencing the defendant pursuant to the plea agreement, as modified. The district court made findings or indicated that it was disregarding all disputed statements in the presentence report. We AFFIRM.