U.S. v. Beattie

919 F.3d 1110

UNITED STATES of America, Plaintiff - Appellee

v.Nicholas Gilbert BEATTIE, Defendant - Appellant

No. 18-2197

United States Court of Appeals, Eighth Circuit.

Submitted: January 18, 2019

Filed: April 1, 2019

Rehearing and Rehearing En Banc Denied May 21, 2019^*

Craig Peyton Gaumer, Andrew H. Kahl, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Des Moines, IA, for Plaintiff - Appellee.

Nicholas Gilbert Beattie, FEDERAL CORRECTIONAL INSTITUTION, Forrest City, AR, Leon Fred Spies, MELLON & SPIES, Iowa City, IA, Dean Alan Stowers, STOWERS & SARCONE, West Des Moines, IA, for Defendant - Appellant.

Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

Nicholas Gilbert Beattie pleaded guilty to receiving visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1). The district court¹ sentenced him to 190 months’ imprisonment, to be followed by 240 months’ supervised release. Beattie appeals, arguing that the government breached the plea agreement and asking that we vacate his sentence and remand for resentencing by a different judge. Beattie further argues that the district court erred in applying a 2-level increase for obstruction of justice pursuant to § 3C1.1 of the U.S. Sentencing Guidelines (U.S.S.G. or Guidelines) and that the court erred in failing to credit Beattie with acceptance of responsibility under U.S.S.G. § 3E1.1.

In an online chat room in November 2015, Beattie, under the username "incestlvr87," posted a fifty-three-second video of an adult performing a sex act on an infant. A concerned citizen reported the video, and law enforcement officials traced the username to Beattie. The concerned citizen also reported that Beattie had tried to persuade her to start an incestuous family, that his prior marriage had ended in divorce because he desired to have an incestuous family, and that his ex-wife had found incest videos on his phone. Beattie also told the concerned citizen his first name, his phone number, and his place of employment.

Law enforcement officers executed a search warrant at Beattie’s workplace and residence in December 2015. The officers found drugs and drug paraphernalia on Beattie’s bed. Several electronic devices were seized from his home, but Beattie refused to unlock his cell phone upon the officers’ request. Beattie was then taken into custody on an unrelated warrant. Law enforcement obtained a second search warrant to compel Beattie to provide the passcode to a seized iPhone and iPad, in response to which Beattie provided incorrect passcodes.

Twenty images and thirty-one videos of child pornography were found on certain electronic devices that were not passcode-protected. The child pornography displayed prepubescent minors engaging in masturbation, oral and vaginal sex, and bestiality. Beattie had also carried out a number of searches and downloads for incest pornography and bestiality.

Beattie pleaded guilty in October 2017. The plea agreement was subsequently accepted by the district court and provided in part that:

The Government agrees to recommend that Defendant receive credit for acceptance of responsibility under USSG § 3E1.1. The Government reserves the right to oppose a reduction under § 3El.1 if after the plea proceeding Defendant obstructs justice, fails to cooperate fully and truthfully with the United States Probation Office, attempts to withdraw Defendant’s plea, or otherwise engages in conduct not consistent with acceptance of responsibility.

The plea agreement was silent on the government’s obligation regarding an obstruction of justice enhancement under § 3C1.1. Following the plea proceeding, the government advised the probation office of its belief that Beattie’s Guidelines range was 151-188 months.

The draft presentence report (PSR) determined that Beattie’s base offense level was 22. It applied a 2-level increase for obstruction of justice based on Beattie’s failure to disclose correct passcodes, along with several other enhancements not at issue on appeal, and determined that Beattie’s total offense level was 39. The PSR did not apply any reduction for acceptance of responsibility. With a criminal history category of I, the Guidelines sentencing range was 262 to 327 months’ imprisonment, with a statutory maximum sentence of 240 months’ imprisonment. The government objected to the PSR’s denial of acceptance of responsibility on December 27, 2017, but remained silent on the obstruction of justice enhancement. The government stated that it "adheres to its agreement to recommend a 3-level reduction for acceptance of responsibility" but added that "[t]he court will have to determine whether the defendant’s refusal to comply with a state warrant to provide access to his phone is sufficient obstruction of justice to merit denial of acceptance of responsibility." Beattie objected to the PSR recommendations as well, challenging the application of the obstruction of justice enhancement and the denial of the acceptance of responsibility reduction.

The government argued in its sentencing brief that the increase for obstruction of justice was warranted based on Beattie’s failure to furnish the passcodes in December 2015. In response, Beattie filed his first motion to compel specific performance of the plea agreement, arguing that the government had breached the agreement by requesting an obstruction of justice enhancement for conduct that occurred prior to the plea proceeding. The government then asserted that although it still adhered "to its general obligation in the Plea Agreement to ask the court to give [Beattie] credit for accepting responsibility," Beattie had engaged in post-plea conduct that called into question his acceptance of responsibility. Specifically, that Beattie had offered expert reports wherein he claimed that he did not remember collecting child pornography. The district court denied Beattie’s first motion to compel because the plea agreement did not prohibit the government from advocating for an obstruction of justice enhancement.

In response to the government’s reply to his first motion, Beattie filed a second motion to compel, arguing that the government had breached the plea agreement by indicating that Beattie’s statements in the expert reports might warrant a denial of an acceptance of responsibility reduction, even though it ultimately recommended acceptance of responsibility. The district court denied Beattie’s second motion to compel, stating at the sentencing hearing that "[h]ere, the Government, in its response to the original motion for a specific performance, highlighted aspects of the defenses’s case that gave it pause, and yet it continued to recommend acceptance of responsibility."

A probation officer found a powered-on iPhone at Beattie’s residence during a routine visit on May 3, 2018. The conditions of Beattie’s pretrial release prohibited him from possessing internet-capable devices. Beattie told the probation officer that the iPhone was his fiancée’s. The probation officer tried to call Beattie’s fiancée, whereupon Beattie confessed that the iPhone was his and that he had found it while packing for his anticipated term of imprisonment. Beattie provided the officer with an unworkable passcode, which prevented the officer from checking its contents. Beattie’s father later claimed that the iPhone had been in his possession. Beattie then equivocally claimed that his father had given the iPhone to him and that he may have tried to access it. Beattie’s pretrial release was then revoked based on his possession of the iPhone.

During the May 16, 2018, sentencing hearing, the government argued that Beattie should be denied an acceptance of responsibility reduction. The court concluded that Beattie’s conduct was inconsistent with acceptance of responsibility and denied the reduction. The district court also concluded that Beattie had obstructed justice. The district court varied downward from the 240-month statutory maximum sentence and imposed a 190-month sentence "to account for [Beattie’s] positive aspects in his history and characteristics that are not otherwise accounted for in the guideline[s, and] the brevity of the criminal conduct as highlighted by the defense."

I.

We review de novo questions regarding the interpretation and enforcement of plea agreements. United States v. Mosley, 505 F.3d 804, 808 (8th Cir. 2007). "Where a plea agreement has been accepted by the court, we generally interpret the meaning of the terms in the agreement according to basic principles of contract law." Id. If we conclude that the government has breached the plea agreement, the case should be remanded to a different judge for resentencing. Id. at 812 (citing Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) ).²

Beattie contends that the government first breached the plea agreement in its December 27, 2017, objections to the PSR. Specifically, the government recommended a reduction for acceptance of responsibility but stated that it was ultimately for the court to decide whether Beattie’s pre-plea conduct would "merit denial of acceptance of responsibility." Beattie contends that the government’s conduct here is similar to that in United States v. Thompson, 403 F.3d 1037, 1040-41 (8th Cir. 2005), wherein we concluded that the government had breached the plea agreement by arguing that the factual stipulations surrounding the defendant’s conduct supported the applicability of U.S.S.G. § 2K2.1(c)(1) because of a felony assault, which the government had promised not to argue. Specifically, the prosecutor stated that the facts the defendant admitted "in and of themselves establish felonious assault." Id. at 1038. But unlike Thompson, the government here did not argue that the facts surrounding Beattie’s pre-plea conduct ipso facto established a denial of acceptance of responsibility. Instead, the government merely noted that the court would ultimately...