Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1990)

MEMORANDUM^* 

OVERVIEW

Defendant/appellant Bart Madison was named in one count, conspiracy to distribute cocaine, of a 41 count indictment charging a cocaine conspiracy against fourteen defendants between August 1985 and February 1989. In a plea agreement with the government Madison agreed to cooperate with authorities, to testify if necessary and to plead guilty to a Superseding Information charging a single count of Interstate Travel in Aid of Racketeering. The government agreed, inter alia, to dismiss the conspiracy to distribute cocaine charge against Madison and to recommend that the district court sentence him to the lowest period of incarceration in the applicable guideline range.

At the hearing where appellant entered his guilty plea, the government stated aloud the facts which it believed it could establish at trial including the 1988 trip by appellant and a co-conspirator, Shane Lewis, from Seattle, Washington to Redondo Beach, California which was the basis of the Interstate Travel count against Madison. The government claimed that in the 1988 trip Madison and Shane Lewis had acquired one kilogram of cocaine which was transported back to Seattle for redistribution. At the hearing appellant agreed that he had performed the acts described by the government and committed the charged offense.

The pre-sentence report indicated that the guideline level applicable to Madison was at a base offense level 6. The government objected to the calculation prior to sentencing and at the sentencing hearing; the government believed that the proper base level was 28. In response to the government's objections, the probation officer sent a memorandum to the court and to counsel describing the government's and the defendant's position as to the proper base offense level. After hearing argument from both counsel, the Court found a base offense level of 26 with a two level reduction for acceptance of responsibility and a criminal history category of three. It calculated the guideline range as between 63 to 78 months. However, because the maximum statutory limit on Madison's charge was 60 months, the district judge imposed a sentence of forty-eight months, to be followed by three years' supervision.

On appeal Madison argues that the district court misapplied the sentencing guidelines by including the amount of cocaine of the original 41 count conspiracy rather than the amount bought in the charged offense. Madison also contends that the court was required to hold a hearing to resolve the amount of cocaine that could be used to determine the proper base offense level. Finally Madison asserts that the government violated its plea agreement. We find these claims meritless and affirm the district court's sentence.

DISCUSSION

Appellant argues that the court misapplied the guidelines by including an incorrect amount of cocaine in its calculation of a base offense level. We find that the district court did not err in its application of the Guidelines.

Under the Sentencing Guidelines, the offense of interstate travel in aid of a racketeering enterprise offense has a base offense level of 6 or "the offense level applicable to the underlying ... unlawful activity in respect to which the travel was undertaken." U.S.S.G. Sec. 2E1.2 at 2.55. The underlying unlawful activity in the instant case is conspiracy to distribute cocaine.

At the sentencing hearing appellant claimed that the 1988 trip to Redondo Beach was part of a different conspiracy from the conspiracy outlined in the 41-count indictment and involved only small amounts of cocaine. The government argued that the trip was part of the larger conspiracy which involved well over 2 kilograms of cocaine.¹ 

We need not decide whether the trip to Redondo Beach was part of a separate conspiracy because Madison pled that he and Shane Lewis had acquired one kilogram of cocaine on the trip to Redondo Beach.²  Under the guidelines, conspiracy to distribute one kilogram of cocaine carries a base offense level of 26. With the two point reduction for responsibility and a criminal history category three, the proper sentence is between 63 and 78 months. Thus, the district court correctly applied the guidelines and found that the sentence under the guidelines was greater than the statutory maximum of 5 years.

Madison argues that the district court judge was required to hold a hearing resolving the factual dispute surrounding the amount of cocaine. This court reviews the denial of an evidentiary hearing for an abuse of discretion.³  United States v. Packwood, 848 F.2d 1009-1010 (9th Cir. 1988).

" [I]t is not an abuse of discretion to sentence a defendant without an evidentiary hearing if the trial court gives the defendant an opportunity to rebut allegations in the presentence report by allowing defendant and his counsel to comment on the report or to submit affidavits or other documents." United States v. Baker, 894 F.2d 1083, 1084-85 (9th Cir. 1990) (internal quotations omitted). In the instant case Madison was on notice as to the government's objections to the probation department's initial base offense level determination; Madison submitted documents in support of a lenient sentence; and Madison strenuously argued his position at the sentencing hearing. Madison had an adequate opportunity to refute the government's and the probation department's sentencing recommendations.

More importantly, a hearing is not necessary because no factual dispute exists. Madison has offered no evidence to contradict his sworn statement that his trip to Redondo Beach involved one kilogram of cocaine.⁴  Therefore, we find that the district court was not required to hold a Rule 32 evidentiary hearing on the amount of cocaine included in the pled charge.⁵ 

Madison argues that the government violated its plea agreement. We disagree.

In the instant case, the plea agreement states that " [t]he United States also agrees to recommend that the Court sentence the defendant to the lowest period of incarceration in the guidelines range applicable to the defendant." The agreement also includes a clause stating that there are "no other agreements or promises, expressed or implied."

Madison claims that the government led him to believe that the lowest end of the sentencing guidelines range would be below 60 months, the statutory maximum. Plea agreements are considered contracts and interpreted as such. Packwood, 848 F.2d at 1012; United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979). In this case the terms of the plea agreement are unambiguous and the agreement states that it is a complete rendition of all agreements between Madison and the government. Madison has provided no proof of a government promise that the lowest end of the sentencing guidelines' range would be less than 60 months. For Madison the applicable sentencing guidelines range is 63 to 78 months; the statutory maximum sentence for his offense is 60 months. The government fulfilled the plea agreement when it recommended a 60 month sentence.

Madison also argues that the government acted in bad faith because it knew that the sentence calculated under the guidelines would be greater than the statutory maximum and, therefore, the government was agreeing to nothing when it agreed to recommend the lowest end of the sentencing range. Madison's attorney admits that during the plea negotiations the government stated that it did not know what the sentencing guidelines' range would be. There simply is no evidence that the government knew and intentionally deceived the defendant.

Madison claims, however, that the government should have known the guidelines' range. We encourage the government to calculate sentencing guidelines' ranges during plea negotiations so that defendants can enter such agreements with full knowledge of the alternatives; however, we have held that the government is not obligated to calculate the applicable guidelines' range during plea negotiations. See United States v. Selfa, No. 89-10309, slip op. at 6082 (9th Cir., June 14, 1990). Therefore, we find no breach of the plea agreement.

CONCLUSION

For the foregoing reasons, the sentence of the district court is AFFIRMED.