Case: /27/2013 ID: DktEntry: 19 Page: 1 of 34 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT C.A. NO.

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1 Case: /27/2013 ID: DktEntry: 19 Page: 1 of 34 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT C.A. NO UNITED STATES OF AMERICA, ) CR. NO LEK ) (USDC-Hawaii) Plaintiff-Appellee, ) ) vs. ) ) ALVAR GANTE TOLEDO, ) ) Defendant-Appellant. ) ) ) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII APPELLEE S ANSWERING BRIEF FLORENCE T. NAKAKUNI United States Attorney District of Hawaii MARK A. INCIONG Assistant U.S. Attorney Room 6-100, PJKK Federal Bldg. 300 Ala Moana Boulevard Honolulu, Hawaii Telephone: (808) Mark.Inciong@usdoj.gov Attorneys for Plaintiff- Appellee UNITED STATES OF AMERICA

2 Case: /27/2013 ID: DktEntry: 19 Page: 2 of 34 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES...i-ii I. ISSUES PRESENTED FOR REVIEW...1 II. STATEMENT OF THE CASE...1 A. NATURE OF THE CASE Jurisdiction of the District Court Basis for Jurisdiction in the Court of Appeals Notice of Appeal was timely...2 B. PROCEEDINGS AND DISPOSITION OF THE DISTRICT COURT...2 C. BAIL STATUS...4 III. STATEMENT OF FACTS...4 IV. SUMMARY OF ARGUMENT...10 V. ARGUMENT...12 A. THE GOVERNMENT DID NOT PLAINLY BREACH THE DRUG QUANTITY STIPULATIONS OF THE PLEA AGREEMENT Standard of Review Discussion...13 B. EVEN IF THERE WAS A BREACH, DEFENDANT CANNOT SHOW THAT HIS SUBSTANTIAL RIGHTS AND THE FAINESS OF THE PROCEEDINGS WERE AFFECTED...19

3 Case: /27/2013 ID: DktEntry: 19 Page: 3 of 34 C. THAT PORTION OF APPELLANT S OPENING BRIEF ALLEGING A BREACH OF THE PROFFER AGREEMENT SHOULD BE STRICKEN AS IT IS BASED ON INFORMATION OUTSIDE THE COURT RECORD...21 D. THERE WAS NO BREACH OF THE DECEMBER 1, 2012 PROFFER AGREEMENT BY THE PSR S INCLUSION OF DRUG QUANTITIES ADMITTED BY DEFENDANTS IN HIS NOVEMBER 2, 2012 POST- ARREST STATEMENT AND NO ERROR BY THE DISTRICT COURT IN REACHING THAT CONCLUSION...23 VI. CONCLUSION

4 Case: /27/2013 ID: DktEntry: 19 Page: 4 of 34 TABLE OF AUTHORITIES Cases Page(s) Duran v. United States, 413 F.2d 596 (9th Cir. 1969) Puckett v. United States, 556 U.S. 129 (2009)...12, 19 Santobello v. New York, 404 U.S. 257 (1971) United States v. Benchimol, 471 U.S. 453 (1985) United States v. Cannel, 517 F.3d 1172 (9th Cir. 2008)... 12, 13 United States v. Ellis, 641 F.3d 411 (9th Cir. 2011) United States v. Gonzalez-Aguilar, F.3d, 2013 WL (9th Cir.) United States v. Lorenzo, 995 F.2d 1448 (9th Cir. 1993) United States v. Maldonado, 215 F.3d 1046 (9th Cir. 2000) United States v. Olano, 507 U.S. 725 (1993) United States v. Whitney, 673 F.3d 965 (9 th Cir. 2012) Statutes and Rules 18 U.S.C (2006) U.S.C (2006) U.S.C. 841(a)(1) (2006)... 2, 3, 6 i

5 Case: /27/2013 ID: DktEntry: 19 Page: 5 of U.S.C (2006)... 2 Fed. R. App. P Fed. R. Crim. P , 13 Fed. R. Crim. P. 52(b) Fed. R. Evid ii

6 Case: /27/2013 ID: DktEntry: 19 Page: 6 of 34 APPELLEE S ANSWERING BRIEF I. ISSUES PRESENTED FOR REVIEW A. WHETHER, UNDER PLAIN ERROR, THE GOVERNMENT CLEARLY BREACHED THE PLEA AGREEMENT S STIPULATIONS REGARDING DRUG QUANTITY OR BASE OFFENSE LEVEL WHEN IT ADOPTED THE RELEVANT CONDUCT FINDINGS OF THE PRESENTENCE REPORT. B. IF THE GOVERNMENT DID BREACH THE PLEA AGREEMENT, WHETHER DEFENDANT HAS DEMONSTRATED THAT THE BREACH AFFECTED HIS SUBSTANTIAL RIGHTS AND SERIOUSLY AFFECTED THE FAIRNESS, INTEGRITY OR PUBLIC REPUTATION OF THE JUDICIAL PROCEEDINGS WHERE THE RECORD SHOWS THAT THE DISTRICT COURT LIKELY WOULD HAVE INDEPENDENTLY FOLLOWED THE FINDINGS OF THE PRESENTENCE REPORT REGARDLESS OF THE GOVERNMENT S POSITION. C. WHETHER THAT PORTION OF APPELLANT S OPENING BRIEF ALLEGING A BREACH OF THE PROFFER AGREEMENT SHOULD BE STRICKEN AS IT IS BASED ON INFORMATION OUTSIDE THE COURT RECORD. D. IF PROPERLY BEFORE THIS COURT, WHETHER THE DISTRICT COURT ERRED IN FINDING THERE WAS NO BREACH OF THE DECEMBER 1, 2012 PROFFER AGREEMENT WHEN THE GOVERNMENT ARGUED THAT ADDITIONAL DRUG QUANTITIES ADMITTED TO BY DEFENDANT IN HIS NOVEMBER 2, 2012 POST-ARREST STATEMENT SHOULD BE CONSIDERED AS RELEVANT CONDUCT AS RECOMMENDED IN THE PRESENTENCE REPORT. II. STATEMENT OF THE CASE A. NATURE OF THE CASE 1. Jurisdiction of the District Court The defendant appeals the District Court s November 29, 2012 Judgment, filed on December 3, The District Court had 1

7 Case: /27/2013 ID: DktEntry: 19 Page: 7 of 34 jurisdiction under 18 U.S.C Basis for Jurisdiction in the Court of Appeals This Court has jurisdiction over appeals from final judgments of the district courts under 28 U.S.C and 18 U.S.C Notice of Appeal was timely The district court entered sentence and judgment against the defendant on November 29, [CR1 12; ER 4-6, 71.] 1 On December 6, 2012, the defendant filed his notice of appeal. [CR1 15; ER 1-2, 72.] B. PROCEEDINGS AND DISPOSITION OF THE DISTRICT COURT Defendant Alvar Gante Toledo appeals his 120-month sentence imposed by the district court following his plea of guilty to a one-count Information charging him with possession, with the intent to distribute, of 50 grams or more of methamphetamine, in violation of 21 U.S.C. Section 841(a)(1) and 841(b)(1)(A). Defendant argues for the first time on appeal that the government breached the parties plea agreement, made pursuant to Federal Rules of Criminal Procedure Rule 11, in which the parties stipulated to certain facts. Specifically, Defendant claims that by concurring with the recommendations of the Presentence Report 1 CR1 refers to the Clerk s Record in CR No LEK; ER refers to the defendant s Excerpts of Record. 2

8 Case: /27/2013 ID: DktEntry: 19 Page: 8 of 34 ( PSR ) 2 and arguing at sentencing that additional drug quantities should be attributable to Defendant, pursuant to Guidelines Section 1B1.3, the Government breached its agreement that Defendant was responsible for not less than grams of actual methamphetamine. On June 15, 2012, the government filed a one-count Information in CR No LEK charging the defendant with possessing, with intent to distribute, 50 grams or more of methamphetamine, in violation of 21 U.S.C. Section 841(a)(1) and 841(b)(1)(A). [CR1 1; ER 55-57, 70.] On June 18, 2012, Defendant waived indictment and plead guilty pursuant to a plea agreement. [CR1 6, 8; ER 71.] On August 31, 2012, the United States Probation Office filed the original Presentence Report. On September 11, 2012, the Defendant filed his sentencing statement stating he had no objections to the basic facts and Guideline computations contained in the Proposed Presentence Report. [PSR 18, attachment.] The Government filed its sentencing statement on September 13, 2012 which stated it had no objections to the Proposed Presentence Report. [PSR 17, attachment.] On November 29, 2012, the defendant was sentenced to PSR refers to the Presentence Report. Four copies of which have been forwarded, under seal, to this Court pursuant to Ninth Circuit Rule

9 Case: /27/2013 ID: DktEntry: 19 Page: 9 of 34 months imprisonment, 5 years supervised release and a $100 special assessment. [CR1 12; ER 4-6, 71.] The district court entered judgment and sentence on December 3, [CR1 13; ER 4-6, 71.] The defendant filed his notice of appeal on December 6, [CR1 15; ER 1-2, 72.] C. BAIL STATUS The defendant is presently in custody serving his 120- month sentence with a projected release date of July 18, III. STATEMENT OF FACTS The Arrest On November 1 and 2, 2011, Drug Enforcement Administration ( DEA ) Special Agents utilized a cooperating defendant ( CD ) to make consensually recorded phone calls to Defendant Alvar Gante Toledo ( Defendant ) to arrange the purchase of crystal methamphetamine from Defendant. [PSR 5.] During the recorded calls, the CD and Defendant discussed the CD making a payment to Defendant for methamphetamine that CD had previously obtained from Defendant as well as obtaining additional methamphetamine from Defendant. [Id.] CD and Defendant agreed to meet at the Target store in Honolulu, Hawaii to conduct the transaction. [Id.] 4

10 Case: /27/2013 ID: DktEntry: 19 Page: 10 of 34 On November 2, 2011, Defendant was arrested by DEA agents after he arrived at the Target store to meet with the CD. [Id.] A search incident to his arrest revealed two ziplock baggies containing methamphetamine. [Id.] A further search of Defendant's vehicle yielded additional amounts of "ice" totaling grams of crystal methamphetamine. [PSR 5-6.] Defendant s Post-Miranda Statement Also on November 2, 2011, Defendant was advised of his Miranda rights and agreed to waive them and speak with authorities. [PSR 6.] Defendant admitted that he was at Target to give the CD two ounces of methamphetamine. [Id.] Defendant further stated that the CD owed him $3900 for two ounces of methamphetamine that the CD had purchased from him the week before. [Id.] Defendant stated he purchased the drugs found in his vehicle approximately two weeks prior to his arrest for $22,000. [Id.] Defendant explained that he obtained methamphetamine from a supplier in Kalihi, Hawaii every three to four weeks and had purchased methamphetamine from that source in 2-pound increments for one and a half to two years. [Id.] Defendant said he normally paid $16,000 per pound for the drugs. [Id.] Defendant also admitted to distributing two ounces of methamphetamine per week to a customer in Waipahu, Hawaii. [Id.] 5

11 Case: /27/2013 ID: DktEntry: 19 Page: 11 of 34 Indictment On November 16, 2011, an Indictment was filed against Defendant in CR. No LEK charging Defendant with possession, with intent to distribute, 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. Section 841(a)(1) and 841(b)(1)(A). [CR2 3 8; ER ] The Information and Guilty Plea On June 15, 2012, the Government filed a one-count Information in CR No LEK charging the defendant with possessing, with intent to distribute, 50 grams or more of methamphetamine, in violation of 21 U.S.C. Section 841(a)(1) and 841(b)(1)(A). [CR1 1; ER 55-57, 70.] On June 18, 2012, Defendant waived indictment and plead guilty pursuant to a plea agreement. [CR1 6, 8; ER 40-54, 71.] In paragraph 10(b) of the plea agreement, the parties stipulated that, Defendant is responsible for not less than grams of actual methamphetamine. [ER 45.] Also in paragraph 10(b), the parties stipulated to the laboratory analysis and purity results of the methamphetamine seized in the case. [ER ] In paragraph 10(c), the parties then stipulated, The total weight of actual methamphetamine, 3 CR2 refers to Clerks Record in CR No LEK, the case number under which Defendant was originally indicted. 6

12 Case: /27/2013 ID: DktEntry: 19 Page: 12 of 34 described above, places the Defendant at a base offense level of 36 under the Sentencing Guidelines. [ER 46.] The Presentence Report On August 31, 2012, the United States Probation Office ( USPO ) filed its original Presentence Report ( PSR ). In The Offense Conduct section of the PSR, the USPO summarized the DEA investigation of Defendant. [PSR 5-6.] Paragraph 12 of the PSR detailed Defendant s November 2, 2011 post-miranda confession to DEA investigators in which Defendant admitted obtaining 2-pound quantities of methamphetamine for distribution over a one and a half to two year period. [PSR 6.] Based on Defendant post-arrest statements, and pursuant to United States Sentencing Guidelines Section 1B1.3, the PSR found Defendant accountable for 38 pounds and 2 ounces of generic methamphetamine in addition to the grams of actual methamphetamine recovered from his person and vehicle on November 2, [PSR 6, paragraph 19.] After conversion, the PSR correctly increased the applicable base offense level from 36 to 38. [PSR 7-8 at paragraphs ] The Parties Sentencing Statements On September 11, 2012, Defendant s counsel filed his sentencing statement, stating, Defendant has no objections to the basic facts and Guideline computations contained in the 7

13 Case: /27/2013 ID: DktEntry: 19 Page: 13 of 34 Proposed Presentence Report. [PSR 18, attachment.] On September 13, 2012, the Government filed its sentencing statement stating it had no objections to the Proposed Presentence Report. [PSR 17, attachment.] Defendant s Supplemental Sentencing Statement On the day of sentencing, Defendant filed a Supplemental Sentencing Statement wherein Defendant requested a time served sentence. 4 [CR2 36.] Nowhere in that supplemental statement did Defendant object to, or even mention, the base offense level calculations of the PSR. [Id.] Likewise, nowhere in the motion did Defendant assert or otherwise attempt to argue that his post- Miranda statements on the day of his arrest were covered by a subsequent proffer agreement. [Id.] Defendant s Sentencing Hearing At Defendant s November 29, 2012 sentencing hearing, the district court engaged in the following colloquy with counsel: THE COURT: I understand that neither the government or the defense has any objections to any of the factual findings or the application of the guidelines to the facts as set forth in the presentence investigation and report. Is that correct Mr. Inciong, on behalf of the government? 4 Four copies of Defendant s Supplemental Sentencing Statement, which was filed under seal, have been forwarded, under seal, along with the PSR to this Court. 8

14 Case: /27/2013 ID: DktEntry: 19 Page: 14 of 34 MR. INCIONG: THE COURT: MR. BREINER: Yes, Your Honor, it is. Is that correct, Mr. Breiner? That is correct, Your Honor. [GER 46.] Despite that affirmation, upon his turn to address the court, Defendant s counsel almost immediately began arguing contrary to the PSR by raising a proffer letter and debriefings that were outside the record. [GER 56.] Defendant s counsel went on to claim that Defendant s post-miranda statements regarding the additional drug amounts he obtained prior to his arrest were protected. [GER 58.] The Government responded by advising the district court that the statements made by Defendant, and relied upon in the PSR, to count additional drug quantities resulting in an increase from base offense level 36 to 38, were made immediately after Defendant s arrest and before he consulted with any attorney and were, thus, not protected. 5 [GER 67-68; PSR 6.] The district court went on to formally adopt the findings of the PSR and found, based on a total offense level of 33 and a criminal history category I, that the applicable guideline range was months imprisonment. [GER 72.] The court then varied downward and sentenced the Defendant to 120 months imprisonment. 5 If the Court desires, the Government is more than willing to supplement the record with discovery logs, declarations and other evidence of what was provided as discovery to Defendant at the district court level. 9

15 Case: /27/2013 ID: DktEntry: 19 Page: 15 of 34 [CR 12; ER 4-6, 71; GER 73.] IV. SUMMARY OF ARGUMENT For the first time on appeal, the Defendant alleges that the government breached stipulations in the plea agreement that the Defendant was responsible for not less than grams of actual methamphetamine and those drugs placed Defendant at a base offense level of 36 when it adopted the relevant conduct findings of the Presentence Report. Defendant has failed to establish that the Government s position was inconsistent with, much less a clear and obvious breach of, the plea agreement. On the day of his arrest, the Defendant made unprotected post-miranda statements admitting to obtaining and distributing pound quantities of methamphetamine over a 18 to 24 month period. The Presentence Report properly included those amounts in its base offense level calculations and correctly concluded Defendant s base offense level was 38. The Government s stipulation regarding drug amount was a floor and left any amount over grams an open question at sentencing. Adopting the PSR findings were clearly contemplated by, and allowed for, in the plea agreement. Likewise, the stipulation to a base offense level 36 was a guideline referring to the amount 10

16 Case: /27/2013 ID: DktEntry: 19 Page: 16 of 34 of methamphetamine seized - that not less than grams. Even if there was a breach of the plea agreement, defendant cannot demonstrate an effect on his substantial rights or a serious effect on the fairness, integrity or public reputation of the judicial proceedings. The facts and PSR calculation regarding the base offense level applicable to Defendant were clear and undisputed with neither party making any objection. The district court had a full and clear understanding of the drug quantity computation and would likely have independently reached the identical conclusion regardless of the Government s position. Thus, defendant cannot show, even if there were a breach, that it affected the outcome of his sentencing or the fairness of the proceedings. The proffer agreement included in Defendant s Excerpts of Record and his arguments alleging a breach of the proffer agreement should be stricken in its entirety from the Opening Brief as they are based on information outside the record. Even if the proffer agreement and Defendant s allegations were properly before this Court, the factual record documented in the Presentence Report unequivocally shows Defendant made post- Miranda admissions immediately after his arrest on November 2, 2011 prior to any appointment or retention of counsel and were, thus, clearly subject to relevant conduct consideration. 11

17 Case: /27/2013 ID: DktEntry: 19 Page: 17 of 34 With or without the proffer letter in the record, Defendant has not demonstrated any error by the district court. The facts and time line of the case show Defendant s post-arrest statement could not have been covered by an proffer letter. V. ARGUMENT A. THE GOVERNMENT DID NOT PLAINLY BREACH THE DRUG QUANTITY STIPULATIONS OF THE PLEA AGREEMENT 1. Standard of Review Defendant concedes that he failed to timely object to the alleged breach during the district court proceedings. (AOB 6 13.) In Puckett v. United States, 556 U.S. 129 (2009), the Supreme Court held that forfeited errors involving an alleged breach of the plea agreement are governed by the plain error test of Federal Rule of Criminal Procedure 52(b), just like other forfeited errors. Id. at Accordingly, we are limited to plain error review on appeal. United States v. Gonzalez- Aguilar, F.3d, 2013 WL (9 th Cir.); 13 Cal. Daily Op. Serv. 5976, citing United States v. Cannel, 517 F.3d 1172, (9 th Cir. 2008). Relief for plain error is [only] available if there has been (1) error; (2) that was plain; (3) that affected substantial 6 AOB refers to Appellant s Opening Brief. 12

18 Case: /27/2013 ID: DktEntry: 19 Page: 18 of 34 rights, and (4) that seriously affected the fairness, integrity or public reputation of the judicial proceedings. Cannel, at Discussion Plea agreements are measured by contract law standards, and this Court enforces the literal terms of a plea agreement. United States v. Ellis, 641 F.3d 411, 417 (9th Cir. 2011). See also Santobello v. New York, 404 U.S. 257, 262 (1971)(When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled). While the government is not required to explain its reasons for a particular recommendation, neither is it prohibited from doing so absent a specific provision in the plea agreement. States v. Benchimol, 471 U.S. 453, (1985). See United Moreover, despite a plea agreement to make certain recommendations, the government has a duty to ensure that the court has complete and accurate information, enabling the court to impose an appropriate sentence. United States v. Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000). Here, the relevant stipulations of the plea agreement 7 are 7 Defendant in his Opening Brief refers to the plea agreement as binding. [AOB 13.] In the Government s view, a binding plea agreement is one entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The plea agreement here was not 13

19 Case: /27/2013 ID: DktEntry: 19 Page: 19 of 34 as follows: In paragraph 10(b) of the plea agreement, the parties stipulated that: Defendant is responsible for not less than grams of actual methamphetamine. [ER 45.](Emphasis added.) Also in paragraph 10(b), the parties stipulated to the laboratory analysis and purity results of the methamphetamine seized in the case: DEA Ex.#: Controlled Substance: Net Wgt: Purity: Pure Wgt: 3 Methamphetamine 55.5 gm 99.2% 55.0 gm Hydrochloride 4 Methamphetamine gm 99.2% gm Hydrochloride 5 Methamphetamine 1.0 gm 99.2% 0.99 gm Hydrochloride 6 Methamphetamine 81.2 gm 99.4% 80.7 gm Hydrochloride 9 Methamphetamine 17.6 gm gm Hydrochloride [ER ] In paragraph 10(c), the parties then stipulated, The total weight of actual methamphetamine, described above, places the Defendant at a base offense level of 36 under the Sentencing Guidelines. [ER 46.] such a plea agreement and was not binding on the court. 14

20 Case: /27/2013 ID: DktEntry: 19 Page: 20 of 34 In regard to the amount of drugs stipulated to by the parties, the Defendant repeatedly and inaccurately argues in his Opening Brief that the plea agreement stipulated to a specific drug quantity or a specific drug quantity of grams. [AOB 11, 12, 14, 16, 17, 20.] That assertion skews the actual language of the plea agreement and is simply untrue. Here, the plain and common sense language of the paragraph 10(b) stipulation could not be more clear: Defendant is responsible for not less than grams of actual methamphetamine. [ER 45.] Not less than unequivocally indicates only a floor, or minimum amount, for which the Defendant would be accountable at sentencing. Thus, by definition, the plea agreement provided Defendant could be held accountable for any amount in excess of grams found to be appropriate by the PSR or the Court. As shown by the PSR s recitation of the facts of the case, it is uncontroverted that Defendant made damning admissions immediately after his arrest on November 2, 2012 [PSR 6.] and before any attorney was appointed to or retained by Defendant. [ER ] Admissions that even a novice to the Sentencing Guidelines would recognize would certainly be subject to an increased drug quantity and base offense level pursuant to relevant conduct under Section 1B1.3. Clearly, the Government 15

21 Case: /27/2013 ID: DktEntry: 19 Page: 21 of 34 stipulated only to a minimum amount so that the drugs admitted to by the Defendant in his post-miranda statement, and for which he was clearly responsible, could and would be considered by the district court. The inclusion of the additional drug quantities Defendant discussed in his post-arrest confession was fully expected by the Defendant as evidenced by the lack of any objection by the Defendant to any facts or drug quantities contained in the PSR. [PSR 18, attachment.] Defendant s counsel confirmed once again at the sentencing hearing, when asked by the district court, that Defendant had no objection to the facts or proposed guidelines: THE COURT: I understand that neither the government or the defense has any objections to any of the factual findings or the application of the guidelines to the facts as set forth in the presentence investigation and report. Is that correct Mr. Inciong, on behalf of the government? MR. INCIONG: THE COURT: MR. BREINER: Yes, Your Honor, it is. Is that correct, Mr. Breiner? That is correct, Your Honor. [GER 46.] Inexplicably, shortly after making that assurance to the district court, Defendant s counsel attempted to argue exactly 16

22 Case: /27/2013 ID: DktEntry: 19 Page: 22 of 34 the opposite position by raising matters not in the record just as Defendant has attempted to do in his Opening Brief. [GER 56-58, 61; AOB ] Even the district court appeared to be perplexed by Defendant attorney s sudden about-face, stating, So your argument is that I should calculate his guideline based on the grams of actual methamphetamine that he stipulated under the agreement...and not the 17,236.8 grams of methamphetamine that the Court sees in...paragraph 19, page 7? I am just trying to understand. I am not challenging your argument at this point... I am trying to understand what your argument is. [GER 58.] The record below does not reflect why Defendant s counsel chose to argue contrary to his prior position. But, the PSR, record and plea agreement are all crystal clear that Defendant s post-arrest statements could be used against him. [PSR 6; ER 45-46, ] The Government later clarified for the court the basis of the drug quantity calculation and reminded the court that the Defendant did not file any objections to the PSR and confirmed he had no objections earlier in the hearing. [GER ] Defendant s counsel had no response to those remarks. [GER 68.] In regard to the base offense level stipulation of paragraph 17

23 Case: /27/2013 ID: DktEntry: 19 Page: 23 of 34 10(c), Defendant again misrepresents the precise language of the plea agreement by omitting critical words, reporting that particular stipulation as stating: The parties further stipulate to a base offense level of 36 under the sentencing guidelines. [AOB 10.] In truth, the stipulation stated: The total weight of actual methamphetamine, described above, places the Defendant at a base offense level of 36 under the Sentencing Guidelines. [ER 46.] The difference is obvious and significant. The phrase, described above clearly refers to the laboratory analysis results which appear immediately in the subparagraph preceding paragraph 10(c), the same paragraph, 10(b), which stipulates to not less than grams. [ER ] While admittedly probably surplusage, the base offense level of 36" language in paragraph 10(c) was a guidepost as to where the Defendant stood as of that date based only on the amount of drugs seized in the case with the clear understanding that a relevant conduct analysis would almost certainly be made in the PSR increasing the quantity of drugs attributable to him. Defendant speaks of an obligation to present a united front to the court at sentencing. [AOB 10.] What Defendant apparently fails to recognize is that a united front was indeed 18

24 Case: /27/2013 ID: DktEntry: 19 Page: 24 of 34 presented to the district court when neither party objected to the base offense level or facts in the PSR in their sentencing statements or upon direct inquiry made by the sentencing judge at the outset of the sentencing hearing. [PSR 17-18; GER 46.] For Defendant to now attempt to object and allege a breach of the plea agreement reeks of buyers remorse as there was no breach. B. EVEN IF THERE WAS A BREACH, DEFENDANT CANNOT SHOW THAT HIS SUBSTANTIAL RIGHTS AND THE FAIRNESS OF THE PROCEEDINGS WERE AFFECTED. In addition to showing a clear breach of the plea agreement, to prevail on plain error review the defendant must show that the error affected his substantial rights, meaning there must be a reasonable probability that the error affected the outcome of the sentencing. Cir. 2012). United States v. Whitney, 673 F.3d 965, 972 (9 th As the Supreme Court noted in Puckett v. United States, 556 U.S. 129, 141 (2009), a defendant cannot show prejudice if he likely would not have obtained the benefits contemplated by the plea deal in any event. That is precisely the situation here. A review of the record reveals that the district court reached an independent determination that the appropriate base offense level was 38 as calculated in the PSR. Even if the 19

25 Case: /27/2013 ID: DktEntry: 19 Page: 25 of 34 Government had recommended a base offense level 36, as Defendant argues was required, the district court would have had to disregard the PSR and the overwhelming evidence contained therein indicating that level 38 was the appropriate starting point. The independence of the district court and the lack of persuasion on it by the government at sentencing in this matter is perfectly demonstrated in the government s disagreement with the downward variance recommended by the PSR for Defendant s sentence. [GER 52; PSR 19.] The Government argued at some length and engaged the court in a dialogue that the mitigating sentencing factors did not outweigh the aggravating factors. [GER ] The Government argued that, at most, the factors offset and, thus, 135 months, the low end of the applicable guideline range, was the appropriate sentence. [Id.] The district court did not agree with the Government s analysis on that issue. [GER ] Likewise, the district court, exercising its discretion, varied downward from the lowend of 135 months and sentenced the Defendant to 120 months again adopting the recommendations of the PSR. [GER 73; PSR 19.] This clearly shows the district court was destined to follow the PSR in every aspect in this matter. In sum, Defendant cannot show that he would have received a lower sentence even if the government had recommended that the 20

26 Case: /27/2013 ID: DktEntry: 19 Page: 26 of 34 appropriate base offense level was 36. Thus, Defendant has not carried his burden to show by a reasonable probability that any error either affected the outcome of the sentencing or the fairness of the proceedings. C. THAT PORTION OF APPELLANT S OPENING BRIEF ALLEGING A BREACH OF THE PROFFER AGREEMENT SHOULD BE STRICKEN AS IT IS BASED ON INFORMATION OUTSIDE THE COURT RECORD. Federal Rule of Appellate Procedure 10, states: (a) Composition of the Record on Appeal. The following items constitute the record on appeal: (1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared by the district clerk. Defendant has now inserted extrinsic information into the appellate record that does not fall under any of the above three categories. Specifically, Defendant has included in his Excerpts of Record a proffer letter signed by the parties. [ER ] That proffer letter was not filed in the district court, is not a transcript of any of the underlying proceedings and is not part of the docket prepared by the district clerk. [FRAP 10.] Defendant then argues not only the existence of a proffer agreement but goes on to argue numerous inaccurate and 21

27 Case: /27/2013 ID: DktEntry: 19 Page: 27 of 34 unsubstantiated assumptions throughout his Opening Brief. [AOB ] Because this issue was not properly raised before the district court, a complete factual response from the Government would also be outside the court record. As indicated previously, if the Court wishes, the Government is pleased to supplement the record to allow a complete discussion of this issue which is not part of the record in the district court. It is Hornbook law that neither party can rely on evidence outside the record of the case on appeal. We are limited on this appeal to the record made in the court below. Duran v. United States, 413 F.2d 596, 605 (1969). Defendant may attempt to argue that because Defendant s trial counsel raised the proffer agreement issue at the sentencing hearing -- despite filing no sentencing objections, despite arguing outside of the record and despite arguing contrary to the underlying facts that the issue is now part of the record solely because of those irresponsible comments at sentencing. To allow this issue to be part of the court record under those circumstances would be the appellate equivalent of double hearsay. Accordingly, pages of should be stricken from Defendant s Excerpts of Record and all portions and references to the proffer letter, including his second Issue Presented for 22

28 Case: /27/2013 ID: DktEntry: 19 Page: 28 of 34 Review should be stricken from Defendant s Opening Brief. D. THERE WAS NO BREACH OF THE DECEMBER 1, 2012 PROFFER AGREEMENT BY THE PSR S INCLUSION OF DRUG QUANTITIES ADMITTED BY DEFENDANT IN HIS NOVEMBER 2, 2012 POST- ARREST STATEMENT AND NO ERROR BY THE DISTRICT COURT IN REACHING THAT CONCLUSION. The PSR, unobjected to by the Defendant, lays out a clear time line of the events of this offense including that Defendant made a post-miranda statement immediately after his arrest on November 2, [PSR 5-6.] Rule 16 of the Federal Rules of Evidence requires the production of post-arrest statements made to law enforcement. There is nothing in the record to suggest that Defendant did not receive those statements as part of Rule 16 discovery. 8 Moreover, there is no claim by Defendant in the record below that the first time Defendant made those statements was during a proffer session. The record is equally clear that the Defendant was not represented by counsel until provided with a court appointed attorney on November 3, [CR2 4; ER 63.] That time line 8 Because the defendant bears the burden of establishing an effect on his substantial rights under the third prong of plain error review, United States v. Olano, 507 U.S. 725, 734 (1993), it is the Defendant, rather than the government, who must pay the price for any inadequacy of the record. See United States v. Lorenzo, 995 F.2d 1448, 1458 n.4 (9th Cir. 1993). 23

29 Case: /27/2013 ID: DktEntry: 19 Page: 29 of 34 establishes there could not have been any proffer agreement entered into between Defendant s counsel and the Government before November 3, Even if the proffer letter is considered by this Court, Defendant has failed to demonstrate how the statements made by Defendant on November 2, 2012 could be protected by an agreement which could not have originated before November 3, 2012 and which is dated December 1, [ER ] The lone reference in the entire record below to the proffer letter is Defendant s trial counsel s assertion of coverage by a document not before the district court and the Government s unrebutted contention that Defendant s statements were not made subject to a proffer letter and were, thus, not covered. [GER 56-58, 61, ] Thus, the district court did not err in concluding there was no breach of any proffer agreement and sentencing Defendant based on the drug quantities presented in the PSR. [GER ] // // // // // // // 24

30 Case: /27/2013 ID: DktEntry: 19 Page: 30 of 34 VI. CONCLUSION For all the reasons stated above, the Defendant s sentence should be affirmed. DATED: Honolulu, Hawaii, June 27, FLORENCE T. NAKAKUNI United States Attorney District of Hawaii By s/ Mark A. Inciong MARK A. INCIONG Assistant U.S. Attorney Attorneys for Plaintiff-Appellee UNITED STATES OF AMERICA 25

31 Case: /27/2013 ID: DktEntry: 19 Page: 31 of 34 CERTIFICATION OF RELATED CASES Pursuant to Rule , Rules of the United States Court of Appeals for the Ninth Circuit, Appellee United States of America, by and through its undersigned attorney, hereby certifies that it is unaware of any other pending cases related to this appeal. DATED: June 27, 2013, at Honolulu, Hawaii. By s/ Mark A. Inciong MARK A. INCIONG Assistant U.S. Attorney

32 Case: /27/2013 ID: DktEntry: 19 Page: 32 of 34 Certificate of Compliance Pursuant to Fed. R.App. 32(a)(7)(C)and Circuit Rule 32-1 for Case Number (see next page) Form Must Be Signed By Attorney or Unrepresented Litigant And Attached to the Back of Each Copy of the Brief I certify that: (check appropriate options(s)) X 1. Pursuant to Fed.R.App. P. 32 (a)(7)(c) and Ninth Circuit Rule 32-1, the attached opening/answering/reply/cross-appeal brief is Proportionately spaced, has a typeface of 14 points or more and contains words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words, reply briefs must not exceed 7,000 words), X or is Monospaced, has 10.5 or fewer characters per inch and contains 4,936 words or lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text). 2. The attached brief is not subject to the type-volume limitations of Fed.R.App.P. 32(a)(7)(B) because This brief complies with Fed.R.App.P. 32(a)(1)(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages; This brief complies with a page or size-volume limitation established by separate court order dated and is Proportionately spaced, has a typeface of 14 points or more and contains words, or is Monospaced, has 10.5 or fewer characters per inch and contains pages or words or lines of text. 3. Briefs in Capital Cases This brief is being filed in a capital case pursuant to the type-volume limitations set forth at Circuit Rule 32-4 and is Proportionately spaced, has a typeface of 14 points or more and contains words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must not exceed 9,800 words) or is Monospaced, has 10.5 or fewer characters per inch and contains words or lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).

33 Case: /27/2013 ID: DktEntry: 19 Page: 33 of Amicus Briefs Pursuant to Fed.R.App.P. 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7,000 words or less, or is Monospaced, has 10.5 or fewer characters per inch and contains not more than either 7,000 words or 650 lines of text, or is Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed.R.App.P. 32(a)(1)(5). June 27, 2013 s/ Mark A. Inciong Date Signature of Attorney or Unrepresented Litigant 2

34 Case: /27/2013 ID: DktEntry: 19 Page: 34 of 34 CERTIFICATE OF SERVICE I hereby certify on June 27, 2013, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/ Tammie L. Gawronski