                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              MAY 7 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

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

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, KELLY and MURPHY, Circuit Judges.



      Defendant Appellant Patrick Heaps challenges the district court’s ruling

that the government did not breach its obligation under a plea agreement. He

claims the prosecutor failed to recommend an adjustment for acceptance of

responsibility as promised, and requests that we remand with instructions to

comply with the plea agreement or allow him to withdraw his guilty plea. We

exercise jurisdiction under 18 U.S.C. § 1291 and affirm.


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and 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.
      On June 11, 1997, a grand jury indicted Mr. Heaps for 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 dismissal of the remaining

charges. However, before the court could sentence him, Mr. Heaps escaped from

custody. Several months later, authorities arrested 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 government in which he agreed to

plead guilty to the escape charges in return for the government’s promise to

request dismissal of several other counts and recommend an adjustment for

acceptance of responsibility. The district court consolidated the robbery case and

the escape case based on a joint motion by the parties.



      At the consolidated sentencing hearing April 21, 1998, Mr. Heaps argued

the court could not sentence him for the robbery and escape individually, but

must group the two convictions as required under United States Sentencing

Guidelines §§ 3D1.2 and 5G1.2, and then adjust for acceptance of responsibility

on the overall offense level. In response, the government 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 prosecutor argued against an


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adjustment claiming the government had agreed to recommend 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 offense 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 acceptance of responsibility as

recommended by the government.



      Not long after the sentencing hearing, the district court issued a

Memorandum and Order correcting a technical error it made during the

calculation of Mr. Heaps’ sentence. The court recognized, 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 reassessed 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


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“inconsistent with any acceptance of responsibility,” the court declined to adjust

the sentence. Ultimately, however, the court’s decision to group and restructure

the sentence did not change the previously determined term of confinement.



      On appeal, Mr. Heaps reasserts his claim that the government breached the

plea agreement when it argued against an adjustment for acceptance of

responsibility. He contends he reasonably interpreted the government’s promise

during the second plea negotiation for the escape case to mean it would

recommend an adjustment for acceptance of responsibility at sentencing for the

“overall conduct” of both consolidated cases. He bases this interpretation of the

agreement on the assumption that the prosecutor knew before agreeing to

recommend an adjustment that the court had consolidated the cases and would

have to group them for sentencing. Because the guidelines require courts to

apply any adjustment for acceptance of responsibility for grouped offenses to the

total combined counts and not each count individually, 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 the government did not argue

for a reduction for the overall conduct, and instead argued against the adjustment

for the robbery case, it breached its obligation and thwarted his expectations


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under the plea agreement.



       Whether government conduct violates a plea agreement 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 defendant enters into a plea agreement,

the court must ensure he receives what he is reasonably entitled to under the

agreement. Hawley , 93 F.3d at 692. In other words, the government may 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 allegedly 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 government’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 govern our analysis, and if any

ambiguities are present, we resolve them against the drafter.         Hawley, 93 F.3d at


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690.



       We review the express language used in the agreement 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 escape charges plainly states

“[t]he government agrees to recommend acceptance of responsibility, assuming,

of course, that the defendant continues to accept responsibility.” In this instance,

the words of the agreement alone are insufficient to determine whether the

government promised to recommend adjustment only for the escape case or for

the overall conduct. Consequently, in order to construe 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 robbery case for sentencing, the

court and the parties were still dealing with the offenses as though they would

receive separate sentences. In fact, as the district court noted: separate

presentence reports were prepared, Mr. Heaps responded to the reports

individually, the cases continued to maintain separate docket numbers, and the

court did not consolidate the cases into a joint indictment or information.

Moreover, the district court continued to treat the offenses on an individual basis


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at every step in the process until it issued its final Memorandum and Order

acknowledging the need to group the offenses. The plain language of the

agreement coupled with the separate treatment of the 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 evaluate the government’s

obligation in light of the defendant’s reasonable understanding 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 interpretation of the plea agreement. As

mentioned above, even though the robbery and escape offenses had been

consolidated for sentencing, the parties and the court 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 the


                                           -7-
written plea agreement and the attending circumstances 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 entered a plea and was still awaiting

sentencing. Moreover, if Mr. Heaps was aware at the time of making his plea in

the escape case that the grouping requirements would 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 defendant reasonably understands at

the time he enters the plea, we find Mr. Heaps’ interpretation 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 relying 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 fulfilled its promise under

the agreement to recommend adjustment for acceptance of responsibility for the


       1
         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.


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escape offense. Although Mr. Heaps argues the government failed to specifically

“recommend” an adjustment as promised, we find the government met its

obligation. Even though the prosecutor only stated at the sentencing hearing that

it did not “take exception to [Mr. Heaps’] acceptance of responsibility” with

respect to the escape and firearm possession charge; we hold that statement,

combined with the specific adjustment recommendations 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 “the term

‘recommendation’ in a plea agreement does not require the prosecutor to allocute

in favor of specific adjustments in the defendant’s sentence if the

recommendations are contained in the [presentence report] and the prosecutor

does not allocute against an agreed-upon adjustment”).



       In this case Mr. Heaps seized on the opportunity presented by the grouping

requirement under the guidelines to try and bind the government to a promise it

never actually made, and get in through the back door an overall adjustment the

government would probably never have agreed to otherwise. We find this

approach inventive but ultimately unpersuasive. Because 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 acceptance of responsibility


                                            -9-
overall, we decline to accommodate Mr. Heaps’ attempt to parlay the

government’s initial, limited promise into an obligation to recommend adjustment

for acceptance of responsibility for the overall offense. The district court

correctly ruled that the government “undoubtedly lived up to its bargain” by not

opposing an adjustment for acceptance of responsibility for the escape charge,

and that the government was perfectly within its rights to argue against the

adjustment in the robbery case without violating the plea agreements. Although

subsequent unilateral acts by the district court in restructuring Mr. Heaps’

sentence effectively denied him the benefit of the adjustment for acceptance of

responsibility he had bargained for, those decisions 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




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