RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0173p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

ISAIAS QUESADA,

 Defendant-Appellant.

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No. 08-2183

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 07-20222-001—David M. Lawson, District Judge.

Decided and Filed: June 15, 2010 

Before: DAUGHTREY, GILMAN, and SUTTON, Circuit Judges.

_________________

COUNSEL

ON BRIEF: John Minock, CRAMER & MINOCK, PLC, Ann Arbor, Michigan, for

Appellant. Leonid Feller, ASSISTANT UNITED STATES ATTORNEY, Detroit,

Michigan, for Appellee. 

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Isaias Quesada pled guilty to a number

of criminal charges revolving around a drug-distribution conspiracy. He was sentenced to

240 months of imprisonment. Quesada now appeals his conviction and sentence, arguing

that the government breached the plea agreement by using Quesada’s proffer statement to

prove the applicability of certain sentencing enhancements. For the reasons set forth below,

we AFFIRM the judgment of the district court.

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No. 08-2183 United States v. Quesada Page 2

I. BACKGROUND

In April 2007, Quesada was charged with one count of conspiracy to distribute

controlled substances (count one), one count of distribution of controlled substances (count

ten), one count of being a felon in possession of ammunition (count fifteen), and one count

of possession of controlled substances with the intent to distribute the same (count sixteen).

He was one of nine defendants charged in the indictment. And like his codefendants,

Quesada entered into plea negotiations with the government.

As a part of these negotiations, Quesada agreed to meet with the government for a

proffer. The government set forth the terms of the proffer in a letter to Quesada’s attorney.

This letter provided that Quesada was “to make a complete and truthful statement of his

knowledge of (and role in) the matters under investigation, and to fully and truthfully answer

all questions.” The letter further stated that, “[e]xcept as otherwise specified in this letter,

no statement made by [Quesada] during this proffer discussion will be offered against

[Quesada] in the government’s case-in-chief in any criminal prosecution of [Quesada] for

the matters currently under investigation.” One permissible use of the proffer by the

government, however, was “to rebut any evidence offered by [Quesada] that is inconsistent

with the statements made during this discussion.” Quesada provided a proffer to the

government under the terms of the letter, but the parties were unable to reach a plea

agreement at that time.

The court set Quesada’s case for trial on January 8, 2008. On that date, Quesada

pled guilty to counts ten, fifteen, and sixteen of the indictment without the benefit of a plea

agreement. The court warned Quesada that, because there was no plea agreement, “[t]he

Government is promising nothing” and “the sentencing is up to [the court] in the case.”

Quesada acknowledged this state of affairs and further testified that he had not been

promised or assured anything in exchange for his plea of guilty. The court then accepted

Quesada’s pleas of guilty on counts ten, fifteen, and sixteen of the indictment. A trial on the

sole remaining count—conspiracy to distribute controlled substances (count one)—was

postponed.

In March 2008, Quesada pled guilty to count one of the indictment, this time with

a written plea agreement. The plea agreement included a provision stating that the
No. 08-2183 United States v. Quesada Page 3

agreement superseded all other understandings between the parties and that no prior oral or

written promises were binding except as explicitly incorporated into the agreement. No

mention of the proffer letter was made in the agreement, nor were its terms incorporated

therein.

In exchange for Quesada’s plea of guilty, the government agreed to withdraw its

notice to enhance his sentence pursuant to 21 U.S.C. § 851, which would have had the effect

of increasing the mandatory minimum sentence that Quesada was facing to 240 months of

imprisonment in light of his prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(A).

The withdrawal of the § 851 notice reduced Quesada’s mandatory minimum sentence to 120

months of imprisonment. See 21 U.S.C. § 841(b)(1)(A).

During his plea hearing on count one, Quesada testified that he had not been offered

anything other than the terms set forth in the plea agreement in exchange for his plea of

guilty. The court further asked: “Has anyone promised you anything else about sentencing

in this case?” Quesada responded: “No.” The court then accepted Quesada’s plea of guilty

on count one of the indictment.

Before sentencing, Quesada objected to his Presentence Report (PSR), arguing that

the Probation Office improperly applied sentencing enhancements for his possession of a

dangerous weapon, for his being the organizer or leader of a criminal activity involving five

or more persons, and for his use of minors to commit the offense. The government

responded that these enhancements were appropriate and, because Quesada’s objections

included factual statements contradicting those made during his earlier proffer, the

government would be using his proffer statement to establish the facts underlying the

enhancements. Quesada replied that his objections were intended to hold the government

to its burden of proof and were not intended to be affirmative factual representations. Based

on this argument, Quesada contended that the information obtained from his proffer could

not be used to prove the sentencing enhancements.

The district court ruled against Quesada, concluding that his objections to the PSR

opened the door to allow the government to introduce his proffer statement as evidence at

sentencing. In addition, the court noted that Quesada’s proffer “effectively summarizes
No. 08-2183 United States v. Quesada Page 4

information that came from co-defendants in the case.” The court then concluded that this

evidence proved the propriety of the sentencing enhancements listed in Quesada’s PSR.

After determining that the appropriate criminal history category for Quesada was III,

the court calculated Quesada’s U.S. Sentencing Guidelines (U.S.S.G.) range as 235 to 293

months of imprisonment. The court then accepted the plea agreement and granted the

government’s motion to withdraw its 21 U.S.C. § 851 notice. Finally, the court sentenced

Quesada to 240 months of imprisonment on counts one, ten, and sixteen of the indictment,

and a concurrent 120 months of imprisonment on count fifteen. Quesada now appeals his

conviction and sentence.

II. ANALYSIS

“The construction of a plea agreement presents a question of law,” and is thus subject

to de novo review. United States v. Moncivais, 492 F.3d 652, 662 (6th Cir. 2007) (citation

and internal quotation marks omitted). Similarly, “whether the government’s conduct

violated the agreement is a question of law that we review de novo.” United States v. Wells,

211 F.3d 988, 995 (6th Cir. 2000). The district court’s findings of fact, on the other hand,

such as whether there was an agreement and the substance of that agreement, are reviewed

under the clear-error standard. United States v. Lukse, 286 F.3d 906, 909 (6th Cir. 2002).

Quesada argues on appeal that the district court used statements made by him during

his proffer to increase his sentence, and that this violated the terms of the proffer letter as

well as U.S.S.G. § 1B1.8. Section 1B1.8 provides that the government may not use the

statements made by a defendant during his or her proffer to determine the defendant’s

applicable Guidelines range where the government previously agreed “that self-incriminating

information provided pursuant to the agreement w[ould] not be used against the defendant

. . . except to the extent provided in the agreement.” Because of this alleged error, Quesada

contends that the government breached the plea agreement. He therefore asks us to remand

the case to the district court with instructions to give him the option of either withdrawing

his guilty pleas or being resentenced without the use of the proffer.

In response, the government asserts that the plea agreement superseded the proffer

letter and, because the terms of the proffer letter were not included in the plea agreement,
No. 08-2183 United States v. Quesada Page 5

such terms are no longer binding on the parties. And even if this were not the case, the

government contends that Quesada contradicted various statements made during his proffer

in his objections to the PSR, thereby permitting the introduction of these statements under

the terms of the proffer letter. The government also argues that the district court acted within

its authority under 18 U.S.C. § 3661 in considering the proffer, and that any error was

harmless because the information contained in the proffer was also provided in the

statements of Quesada’s codefendants. Section 3661 provides that “[n]o limitation shall be

placed on the information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.” Finally, the government notes that the only

relief available to Quesada if he is victorious on appeal is a resentencing, not the withdrawal

of his pleas of guilty.

Quesada responds by arguing that the purported breach of the proffer letter

constitutes a breach of the plea agreement. But he fails to acknowledge the integration

clause contained in the plea agreement, which provides:

This agreement, which includes all documents that it explicitly incorporates,

is the complete agreement between the parties. It supersedes all other

promises, representations, understandings, and agreements between the

parties concerning the subject matter of this plea agreement that are made at

any time before the guilty plea is entered in court. Thus, no oral or written

promises made by the government to defendant or to the attorney for

defendant at any time before defendant pleads guilty are binding except to

the extent they have been explicitly incorporated into this agreement.

This court has previously held that “[a]n integration clause normally prevents a

criminal defendant, who has entered into a plea agreement, from asserting that the

government made oral promises to him not contained in the plea agreement itself.” United

States v. Hunt, 205 F.3d 931, 935 (6th Cir. 2000). We discern no reason why this rule

should not also apply to prior written proffer agreements. Indeed, several of our sister

circuits have held that a plea agreement that does not incorporate the terms of a proffer

agreement supersedes the proffer agreement and renders its terms void. See United States

v. Santisteban, 501 F.3d 873, 880 (8th Cir. 2007) (“Once the plea agreement was signed, the

terms of that agreement superseded the terms of the preliminary proffer letters concerning

the use of [the defendant’s] statements.”); United States v. Davis, 393 F.3d 540, 546 (5th Cir.
No. 08-2183 United States v. Quesada Page 6

2004) (“Thus, where [the defendant’s] plea agreement plainly provided that it superseded

any other agreements reached between the parties and where [the defendant] specifically

represented to the trial court . . . that there were no other promises made to him other than

those contained in the plea agreement, it follows that [the defendant’s] plea agreement

superseded the proffer letter.”); United States v. Thornton, 197 F.3d 241, 253 (7th Cir. 1999)

(describing “proffer letters, which memorialize the framework under which the codefendants

agreed to talk in the first place,” as being “of scant relevance at trial when a subsequent,

superseding plea agreement has been reached”); United States v. Fagge, 101 F.3d 232, 234

(2d Cir. 1996) (concluding that “[t]he plea agreement superseded the proffer agreement”).

The reasoning of our sister circuits is persuasive. We therefore hold that Quesada’s

plea agreement rendered the terms of the earlier proffer letter no longer binding on the

parties. And because the government made no promises concerning the use of Quesada’s

proffer in the plea agreement, Quesada’s claim that the government breached the plea

agreement is without merit. This leaves us with no need to consider the government’s

alternative arguments in support of the district court’s consideration of Quesada’s proffer

statement during sentencing.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.