UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

LYLE MICHAEL SPENCER,

Defendant–Appellant.

No. 09-2289

(D.C. No. 1:07-CR-01767-LH-1)

(D. N.M.)

ORDER AND JUDGMENT*

Before KELLY, McWILLIAMS, and LUCERO, Circuit Judges. 

 

 Lyle Michael Spencer appeals his conviction and sentence for involuntary 

manslaughter and assault resulting in serious bodily injury. Exercising jurisdiction under 

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm. 

I

 On August 5, 2007, Spencer was driving while intoxicated in Indian Country. 

 

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. This 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. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 14, 2010

Elisabeth A. Shumaker 

Clerk of Court

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Speeding in excess of 100 miles per hour, he crashed into the rear of another vehicle, 

killing one passenger and seriously injuring another. 

 Pursuant to a written plea agreement, Spencer pled guilty to involuntary 

manslaughter in violation of 18 U.S.C. § 1112 and assault resulting in serious bodily 

injury in violation of 18 U.S.C. § 113(a)(6). In exchange, the government promised that 

it would not bring additional charges and stipulated that Spencer was entitled to a two- to 

three-level reduction for acceptance of responsibility. However, the plea agreement was 

expressly limited as follows: 

a. The United States has made, and will make, NO AGREEMENT 

pursuant to Rule 11(c)(1)(C), Fed. R. Crim. P., that a specific sentence is 

the appropriate disposition of this case. 

b. The United States has made, and will make, NO AGREEMENT to 

approve, to oppose, or not to oppose pursuant to Rule 11(c)(1)(B), Fed. R. 

Crim. P., any request made by the defendant or on behalf of the defendant 

for a particular sentence in this case. 

c. The United States hereby expressly reserves the right to make 

known to the United States Probation Office, for inclusion in the 

presentence report prepared pursuant to Rule 32(c)(2), Fed. R. Crim. P., 

any information that the United States believes may be helpful to the Court. 

 A Presentence Investigation Report (“PSR”) prepared the Unites States Probation 

Office calculated a total offense level of twenty-one after deducting three levels for 

acceptance of responsibility. It further assessed Spencer five criminal history points 

based on three prior driving under the influence (“DUI”) convictions and the fact that the 

instant offense was committed while Spencer was on probation, leading to a criminal 

history category of III. Using these values, and identifying no reason to depart from the 

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advisory Guidelines range, the PSR recommended a sentence of forty-six to fifty-seven 

months’ imprisonment. 

Following preparation of the PSR, the government moved for an upward departure 

or variance. It sought a sentence of 120 months. Spencer moved to strike the motion, 

arguing that the government’s actions violated the plea agreement. 

The district court conducted three sentencing hearings. During these hearings, the 

court heard argument on Spencer’s motion to strike and evidence from two accident 

reconstruction experts. At the first hearing, the court denied Spencer’s motion to strike 

and announced that it was inclined to vary upward. Before imposing a sentence, the 

court provided Spencer an opportunity to withdraw his plea. Spencer declined. 

 At the final sentencing hearing, the court concluded that the PSR properly 

calculated the advisory Guidelines range as forty-six to fifty-seven months. However, the 

court determined that several 18 U.S.C. § 3553(a) factors warranted a sentence above that 

range. It noted that Spencer’s actions resulted in the death of a woman and serious 

injuries to a twelve-year-old girl, that Spencer refused a breathalyzer but admitted he was 

drunk, that Spencer was travelling more than 100 miles per hour, and that Spencer had 

three prior DUI convictions. Citing the nature and circumstances of the offense and the 

characteristics of the defendant, along with the need to promote respect for the rule of law 

and impose just punishment, the court settled on a sentence of seventy-two months on the 

manslaughter count and ninety-six months on the assault count, with the sentences to run 

concurrently. Spencer timely appealed. 

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II

 We first consider Spencer’s contention that the government violated the plea 

agreement by filing a motion for an upward departure or variance, and by presenting 

evidence directly to the court. “Whether the government violated a plea agreement is . . . 

a question of law subject to de novo review. We review a sentencing court’s factual 

determinations under a clearly erroneous standard.” United States v. Johnson, 973 F.2d 

857, 859 (10th Cir. 1992) (quotations and citations omitted). 

“Where the Government obtains a guilty plea which is predicated in any 

significant degree on a promise or agreement with the U.S. Attorney, such promise or 

agreement must be fulfilled to maintain the integrity of the plea.” United States v. 

Stemm, 847 F.2d 636, 637 (10th Cir. 1988). “This Circuit uses a two-step analysis to 

determine whether the United States violated a plea agreement: the sentencing court 

should 1) examine the nature of the promise; and 2) evaluate the promise in light of the 

defendant’s reasonable understanding of the promise at the time of the guilty plea.” 

United States v. Guzman, 318 F.3d 1191, 1195-96 (10th Cir. 2003). “General principles 

of contract law define the government’s obligations under the agreement, looking to the 

express language and construing any ambiguities against the government as the drafter of 

the agreement.” Id. at 1195. “We will not allow the government to resort to a rigidly 

literal construction of the language of the plea agreement to frustrate a defendant’s 

reasonable expectations. However, the government’s obligations to the defendant do not 

arise from mere silence.” United States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199 

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(10th Cir. 1997) (quotation omitted). 

Spencer claims that two provisions of the plea agreement, paragraphs 7c and 9, 

demonstrate an implicit promise that the government would not present facts directly to 

the court. Paragraph 7c provides: “The United States hereby expressly reserves the right 

to make known to the United States Probation Office, for inclusion in the presentence 

report prepared pursuant to Rule 32(c)(2), Fed. R. Crim. P., any information that the 

United States believes may be helpful to the Court.” Paragraph 9 states: “By signing this 

agreement . . . [t]he defendant agrees that the Court may rely on any of these facts, as 

well as facts in the presentence report, to determine the defendant’s sentence, including, 

but not limited to, the advisory guideline level.” 

Spencer claims that he reasonably understood these provisions as requiring the 

government to present any and all evidence to the Probation Office rather than the court. 

He analogizes his case to United States v. Cachucha, 484 F.3d 1266 (10th Cir. 2007). In 

Cachucha, the government agreed to recommend a sentence within the advisory 

Guidelines range and stipulated to a specific offense level. Id. at 1270. Although the 

prosecutor technically recommended a within-Guidelines sentence, he preceded his 

official recommendation with complaints that the Guidelines range was “way too low” 

and “incredibly low,” and stated that a within-Guidelines sentence did not “make any 

sense to [him] as a professional prosecutor.” Id. We concluded that the prosecutor’s 

statements constituted a breach of the government’s promise to recommend a withinGuidelines sentence. Id.

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Spencer also points to United States v. Rewis, 969 F.2d 985 (11th Cir. 1992), in 

which the parties entered into a plea agreement reserving the government’s right to 

inform the court of “all relevant facts regarding the offenses,” but explicitly noting that 

the defendant had no obligation to cooperate with the government. Id. at 987. The 

government further promised that it would not recommend a sentence. Id. Despite these 

promises, it submitted a sentencing memorandum in which it stressed the defendant’s 

refusal to cooperate and suggested that a lengthy sentence was necessary to encourage 

cooperation from future defendants. Id. The Eleventh Circuit held that the government 

breached the plea agreement by “dwelling on Rewis’ noncooperation” and by 

“suggest[ing] a harsh sentence.” Id. at 988. 

Rewis and Cachucha properly prohibited the government from breaching a 

specific term of a plea agreement despite technical compliance. In both instances, the 

government advocated for a stiff sentence contrary to explicit promises. In the case at 

bar, however, Spencer cannot point to a specific term of the agreement the government 

has breached: The government expressly refused to agree that any particular sentence 

would be appropriate for Spencer. Nor do the provisions cited by Spencer bar the 

government from submitting evidence to the court; they simply make clear that the 

government will submit evidence to the Probation Office for preparation of the PSR. 

Spencer counters that such a reading would contravene the well-settled 

“presumption that every provision of a contract is placed there for a purpose” and 

therefore should be given effect. Mountain West Mines, Inc. v. Cleveland-Cliffs Iron 

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Co., 470 F.3d 947, 952 (10th Cir. 2006) (quotation omitted). Yet our interpretation does 

not render paragraphs 7c and 9 nugatory. It allows the government to provide relevant 

facts to the probation officer, the district court, or both, which is the general state of 

affairs in a sentencing proceeding. It also considers reality: The probation office “acts as 

an agent of the court for the purpose of gathering and classifying information and 

informing the court in the exercise of its sentencing responsibility.” United States v. 

Rogers, 921 F.2d 975, 979 (10th Cir. 1990). 

To the extent that Spencer believed the plea agreement prohibited the government 

from arguing or presenting evidence to the court, such a belief was unreasonable. 

Accordingly, we agree with the district court that the government did not breach the plea 

agreement. 

III

 Spencer also argues that his sentence was substantively unreasonable. “Review 

for substantive reasonableness focuses on whether the length of the sentence is 

reasonable given all the circumstances of the case in light of the factors set forth in 18 

U.S.C. § 3553(a).” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) 

(quotation omitted). We review a district court’s sentencing determination for abuse of 

discretion regardless of whether the sentence is inside or outside the advisory Guidelines 

range. Gall v. United States, 552 U.S. 38, 51 (2007). However, when a district court 

selects a sentence outside the Guidelines range, it “must consider the extent of the 

deviation and ensure that the justification is sufficiently compelling to support the degree 

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of the variance.” Id. at 50. “[A] major departure should be supported by a more 

significant justification than a minor one.” Id. “A district court abuses its discretion 

when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly 

unreasonable.” United States v. Yanez-Rodriguez, 555 F.3d 931, 946 (10th Cir. 2009) 

(quotation omitted), abrogated on other grounds by Puckett v. United States, 129 S. Ct. 

1423 (2009). 

 Spencer contends that the district court improperly relied on factors already 

considered in the Guidelines. But in this circuit, “[d]istrict courts have broad discretion 

to consider particular facts in fashioning a sentence under 18 U.S.C. § 3553(a), even 

when those facts are already accounted for in the advisory guidelines range.” YanezRodriguez, 555 F.3d at 946. Spencer also argues that his crime fell within the heartland 

of involuntary manslaughter and assault cases. See United States v. Montgomery, 550 

F.3d 1229, 1233 (10th Cir. 2008). He claims that U.S.S.G. § 2A1.4 considers his reckless 

behavior and that his three prior DUI convictions were fully represented in setting his 

criminal history category. We disagree. 

Application note 1 to U.S.S.G. § 2A1.4 defines “reckless” as the disregard of a 

risk that “constitute[s] a gross deviation from the standard of care that a reasonable 

person would exercise in such a situation.” It further provides that driving “while under 

the influence of alcohol or drugs” that results in the death of another “ordinarily should 

be treated as reckless.” Id. The district court correctly determined that Spencer’s actions 

were exceptionally reckless even under this definition. Spencer chose to drive more than 

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100 miles per hour while he was intoxicated to such a degree that he crashed into the rear 

of a vehicle that was safely driving at or near the speed limit directly in front of him. 

Notwithstanding the faux physics advanced by the defense at oral argument—that this 

case involved a mere forty-mile-per-hour accident—the cumulative speed of the vehicle 

that was struck caused it to flip and crash, killing a mother and injuring a twelve-year old 

child. Such conduct is particularly egregious, even among DUIs leading to the death of 

another. 

 With respect to the criminal history category, a defendant could accumulate five 

criminal history points for any number of crimes. See U.S.S.G. § 4A1.1. But all three of 

the convictions relevant to Spencer’s criminal history score were for DUIs. This fact 

plainly takes him outside the heartland of defendants in criminal history category III. 

Spencer was well aware of the risks of driving under the influence of alcohol, but opted 

to continue his unlawful behavior despite three prior convictions. The district court’s 

conclusion that this pattern of behavior rendered Spencer more culpable than most 

defendants charged with involuntary manslaughter and assault was entirely permissible. 

Spencer’s repeated decisions to drive while under the influence similarly support the 

court’s determination that a variance was necessary to promote respect for the rule of law 

and to impose just punishment. Even assuming that this case involves a “major” 

variance, see Gall, 552 U.S. at 50, we do not discern a basis in the record to set aside the 

sentence imposed as an abuse of discretion. 

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IV

AFFIRMED. 

Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 

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