No Gov't Breach of Plea Agreement Where Gov't Merely Pointed Out Facts Supporting Enhancement

U.S. v. Rodriguez-Delma,--- F.3d ----, 2006 WL 2277968 (10th Cir., August 09, 2006)

District court enhanced D’s drug sentence by 4 levels for aggravating role, as recommended by the PSR. D and government had a plea agreement that the government would not oppose D’s opposition to application of the enhancement. The government responded, in writing, to D’s pre-sentencing opposition to the enhancement, with facts that showed D’s enhanced role. D did not claim at sentencing that the government thereby breached the plea agreement, only that the enhancement did not apply.

On appeal D claimed both a breach of the agreement and misapplication of the enhancement. The breach claim is NOT waived and can be brought for the first time on appeal. A careful reading of the plea agreement shows it included a term that the government would provide all relevant facts about the D’s criminal activities. The government did not breach the agreement.

On the merits: while a court may not rely on PSR facts under Rule 32, it is required to find facts only if a defendant makes specific allegations of factual inaccuracy, not merely an objection to the ultimate conclusion drawn by the PSR. Also, general objections “untethered to any factual statement in the PSR” are insufficient. D did not specifically contest undisputed facts, and it was not error for the court to rely on the facts in the PSR.