*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 7 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. PATRICK GARRETT HEAPS, Defendant-Appellant. No. 98-4063 (D. Utah) (D.Ct. No. 97-CR-188)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , KELLY and MURPHY , Circuit Judges.

Defendant Appellant Patrick Heaps challenges the di strict court’s ruling that the government did not breach its obligation u nder a plea agreement. He claims the prosecutor failed to recommend an adjustment for acceptance of responsibility as promised, and requests that we re mand with instructions to comply with the plea agreement or allow him to with draw his guilty plea. We exercise jurisdiction under 18 U.S.C. § 1291 and af firm.-2-

On June 11, 1997, a grand jury indicted Mr. Heaps f or bank robbery and related firearm offenses. Mr. Heaps negotiated an agreement to plead guilty to three of the counts against him in return for the d ismissal of the remaining charges. However, before the court could sentence him, Mr. Heaps escaped from custody. Several months later, authorities arreste d him again and a grand jury indicted him for felony escape and other related firearm offenses. Mr. Heaps negotiated a second plea agreement with the governm ent in which he agreed to plead guilty to the escape charges in return for th e government’s promise to request dismissal of several other counts and recom mend an adjustment for acceptance of responsibility. The district court c onsolidated the robbery case and the escape case based on a joint motion by the part ies.

At the consolidated sentencing hearing April 21, 19 98, Mr. Heaps argued the court could not sentence him for the robbery an d escape individually, but must group the two convictions as required under Un ited States Sentencing Guidelines §§ 3D1.2 and 5G1.2, and then adjust for acceptance of responsibility on the overall offense level. In response, the gov ernment maintained its posture of treating the crimes separately, arguing against a reduction for acceptance of responsibility for the robbery conviction, but not opposing a reduction for the escape conviction. Mr. Heaps objected when the pro secutor argued against an-3-

adjustment claiming the government had agreed to re commend a three-level reduction for acceptance of responsibility as part of the plea agreement. The government responded that it had only agreed to the adjustment in the escape case, not for the robbery, and that at the time the parties made the plea agreement they anticipated the court would sentence each offe nse separately. At the conclusion of the hearing, the district court did, in fact, sentence the offenses separately, imposing 270 months for the bank robbery and related firearm conviction, and forty-six months for the escape charges, with the sentences to run concurrently. The court expressly denied an adjustment for the robbery case, but the escape sentence included an adjustment for acce ptance of responsibility as recommended by the government.

Not long after the sentencing hearing, the districtcourt issued a Memorandum and Order correcting a technical error i t made during the calculation of Mr. Heaps’ sentence. The court reco gnized, as Mr. Heaps had contended at the sentencing hearing, it should group the multiple counts to produce a single sentence as required under the U.S .S.G. § 3D1.2(c). After grouping the offenses, the district court reassesse d whether to grant the adjustment for acceptance of responsibility for the overall offense based on the totality of Mr. Heaps’ conduct. Finding Mr. Heaps’ escape from custody-4-

“inconsistent with any acceptance of responsibility ,” the court declined to adjust the sentence. Ultimately, however, the court’s dec ision to group and restructure the sentence did not change the previously determin ed term of confinement.

On appeal, Mr. Heaps reasserts his claim that the g overnment breached the plea agreement when it argued against an adjustmentfor acceptance of responsibility. He contends he reasonably interpre ted the government’s promise during the second plea negotiation for the escape c ase to mean it would recommend an adjustment for acceptance of responsib ility at sentencing for the “overall conduct” of both consolidated cases. He b ases this interpretation of the agreement on the assumption that the prosecutor kne w before agreeing to recommend an adjustment that the court had consolid ated the cases and would have to group them for sentencing. Because the gui delines require courts to apply any adjustment for acceptance of responsibili ty for grouped offenses to the total combined counts and not each count individual ly, Mr. Heaps contends he understood the escape case plea agreement to mean that, by agreeing, the government would recommend an adjustment overall – not just for the escape charge alone. Therefore, Mr. Heaps asserts when th e government did not argue for a reduction for the overall conduct, and instea d argued against the adjustment for the robbery case, it breached its obligation an d thwarted his expectations-5-

under the plea agreement.

Whether government conduct violates a plea agreemen t is a question of law we review de novo. United States v. Hawley , 93 F.3d 682, 690 (10th Cir. 1996). As an initial matter, we note that when a defendantenters into a plea agreement, the court must ensure he receives what he is reason ably entitled to under the agreement. Hawley , 93 F.3d at 692. In other words, the government m ay not breach the terms of the plea agreement that caused a defendant to plead guilty. See Santobello v. New York , 404 U.S. 257, 262 (1971); United States v. Brye , 146 F.3d 1207, 1209 (10th Cir. 1998). In addition, even if the district court indicates the government's conduct or comments alle gedly breaching the agreement had no influence on the ultimate sentence , we must still grant the defendant a remedy if a breach occurred. Santobello , 404 U.S. at 262-63.

In order to determine if a breach has occurred, we apply a two-step process. We first “examine the nature of the govern ment’s promise;” and then “evaluate this promise in light of the defendant’s reasonable understanding of the promise at the time the guilty plea was entered.” Brye , 146 F.3d at 1210 (internal citations omitted). General contract principles go vern our analysis, and if any ambiguities are present, we resolve them against the drafter. Hawley, 93 F.3d at-6-

690.

We review the express language used in the agreemen t in order to determine the nature of the government's promise. Brye , 146 F.3d at 1210. The plea agreement negotiated in the context of the esc ape charges plainly states “[t]he government agrees to recommend acceptance of responsibility, assuming, of course, that the defendant continues to accept r esponsibility.” In this instance, the words of the agreement alone are insufficient t o determine whether the government promised to recommend adjustment only fo r the escape case or for the overall conduct. Consequently, in order to con strue the agreement “to comport with the parties’ reasonable understanding ... at the time the guilty plea was entered,” we must review it in light of the surrounding circumstances and the context of the sentencing proceedings. Id . at 1212. We find that even though the escape case had been consolidated with the bank rob bery case for sentencing, the court and the parties were still dealing with the o ffenses as though they would receive separate sentences. In fact, as the distri ct court noted: separate presentence reports were prepared, Mr. Heaps respon ded to the reports individually, the cases continued to maintain separ ate docket numbers, and the court did not consolidate the cases into a joint in dictment or information. Moreover, the district court continued to treat the offenses on an individual basis-7-

at every step in the process until it issued its fi nal Memorandum and Order acknowledging the need to group the offenses. The plain language of the agreement coupled with the separate treatment of th e robbery and escape cases persuades us the government’s promise to recommend an adjustment for acceptance of responsibility extended only to the escape charge, not the overall conduct.

The second prong of our inquiry requires us to eval uate the government’s obligation in light of the defendant’s reasonable u nderstanding of the promise at the time of the guilty plea. Brye , 146 F.3d at 1210. Mr. Heaps claims he interpreted the escape case plea agreement to mean the government was promising to recommend an adjustment for acceptance of responsibility with regard to his overall conduct – not just the escape charge. However, examining the reasonableness of Mr. Heaps’ interpretation in light of the surrounding circumstances, we find he had to have known, or at least suspected, the government did not share his subjective interpretat ion of the plea agreement. As mentioned above, even though the robbery and escape offenses had been consolidated for sentencing, the parties and the co urt continued to treat the cases separately. Even without complete knowledge of the negotiations between the government and Mr. Heaps, we can fairly infer from the express language of the1 Although we do not imply that the defendant bears the responsibility of

clarifying the plea agreement, if Mr. Heaps was in fact aware of the ramifications of the guideline grouping requirements before he entered the plea agreement, he should have made some effort to ensure the government shared his understanding.

-8- written plea agreement and the attending circumstan ces that the scope of the agreement was limited to the escape case and had no bearing on the previous robbery conviction for which he had already entereda plea and was still awaiting sentencing. Moreover, if Mr. Heaps was aware at th e time of making his plea in the escape case that the grouping requirements woul d force the court to decide whether to adjust for acceptance of responsibility for the overall offense and not the escape case alone, he should have informed the government and insisted the plea agreement clearly reflect the overall applicability of its obligation. 1 In short, although we must give deference to what a defendantreasonably understands at the time he enters the plea, we find Mr. Heaps’ int erpretation plainly unreasonable when viewed in the overall context of the sentencing proceedings. See United States v. Rourke , 74 F.3d 802, 806 (7th Cir.) (interpreting plea agreement under objective standards rather than rel ying solely on defendant's belief as to the scope of the plea agreement), cert. denied , 517 U.S. 1215 (1996).

Finally, we must decide whether the government fulf illed its promise under the agreement to recommend adjustment for acceptanc e of responsibility for the-9-

escape offense. Although Mr. Heaps argues the gove rnment failed to specifically “recommend” an adjustment as promised, we find the government met its obligation. Even though the prosecutor only statedat the sentencing hearing that it did not “take exception to [Mr. Heaps’] acceptan ce of responsibility” with respect to the escape and firearm possession charge ; we hold that statement, combined with the specific adjustment recommendatio ns acknowledged in the presentence report, is sufficient to meet the government’s obligation. See United States v. Smith , 140 F.3d 1325, 1327 (10th Cir. 1998) (holding “th e term ‘recommendation’ in a plea agreement does not requi re the prosecutor to allocute in favor of specific adjustments in the defendant’s sentence if the recommendations are contained in the [presentence r eport] and the prosecutor does not allocute against an agreed-upon adjustment ”).

In this case Mr. Heaps seized on the opportunity pr esented by the grouping requirement under the guidelines to try and bind th e government to a promise it never actually made, and get in through the back do or an overall adjustment the government would probably never have agreed to othe rwise. We find this approach inventive but ultimately unpersuasive. Be cause the plain language of the agreement and the context in which it was made does not reflect any promise by the government to recommend adjustment for accep tance of responsibility-10-

overall, we decline to accommodate Mr. Heaps’ attempt to parlay the government’s initial, limited promise into an oblig ation to recommend adjustment for acceptance of responsibility for the overall of fense. The district court correctly ruled that the government “undoubtedly li ved up to its bargain” by not opposing an adjustment for acceptance of responsibi lity for the escape charge, and that the government was perfectly within its ri ghts to argue against the adjustment in the robbery case without violating th e plea agreements. Although subsequent unilateral acts by the district court inrestructuring Mr. Heaps’ sentence effectively denied him the benefit of the adjustment for acceptance of responsibility he had bargained for, those decision s are not the subject of this appeal. Only the government’s compliance with the plea agreement is at issue here, and for the reasons stated above, we hold the government did exactly what it promised. Accordingly, we AFFIRM

.

Entered by the Court:
WADE BRORBY United States Circuit Judge