                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     March 11, 2008
                     UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-3342
                                                (D.C. No. 5:06-CR-40091-JAR)
    SHERYL L. WILSON,                                      (D. Kan.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, MURPHY, and HOLMES, Circuit Judges.



         Sheryl L. Wilson pleaded guilty to one count of bank fraud in violation

of 18 U.S.C. § 1344. She was sentenced to fifty-seven months’ imprisonment.

She pleaded guilty pursuant to a plea agreement that contained a waiver of her

appellate rights. Nonetheless, Ms. Wilson filed an appeal alleging that the

government breached the plea agreement and that the district court erred in



*
      This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
determining her sentence. The government has now moved to enforce the appeal

waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)

(per curiam). Ms. Wilson responds that the government breached the terms of the

plea agreement by not recommending a reduction for acceptance of responsibility,

and, therefore, her right to appeal should not be precluded by the plea

agreement’s appeal waiver. Having considered the motion and response, we grant

the motion to enforce and dismiss the appeal.

      Ms. Wilson agreed to waive “any right to appeal or collaterally attack any

matter in connection with [her] prosecution, conviction and sentence,” “except to

the extent, if any, the court departs upwards from the applicable sentencing

guideline range determined by the court.” Plea Agreement, at 7-8, ¶ 10. “This

circuit has held, however, that a[n appeal] waiver provision may be unenforceable

if the government breaches the terms of the Plea Agreement.” United States v.

Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003).

      “This Court reviews de novo the question of whether the government has

breached a plea agreement, even when the defendant fails to preserve this

objection below.” United States v. VanDam, 493 F.3d 1194, 1199 (10th Cir.

2007), cert. denied, 128 S. Ct. 945 (2008). “General principles of contract law

define the content and scope of the government’s obligations under a plea

agreement.” Id. “We thus look to the express language in the agreement to

identify both the nature of the government’s promise and the defendant’s

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reasonable understanding of this promise at the time of the entry of the guilty

plea.” Id. We must “construe all ambiguities against the government, to the

extent it is the drafting party.” Id. Finally, “[w]e evaluate the record as a whole

to ascertain whether the government complied with its promise.” Id.

      Ms. Wilson contends that the government agreed in the plea agreement to

recommend a sentence reduction for acceptance of responsibility, as provided for

by U.S.S.G. § 3E1.1, and agreed that Ms. Wilson was free to litigate the amount

of loss involved as part of her sentencing process, yet refused to recommend a

reduction for acceptance of responsibility when she exercised her right to contest

the loss amounts at sentencing. For the following reasons, we conclude the

government did not breach the plea agreement.

      Ms. Wilson admitted in her plea agreement that for three years, she devised

and executed a scheme to defraud her employer, an eye surgery center, by

fraudulently using the eye center’s bank accounts for her personal benefit. More

specifically, she admitted that she purchased items for her personal use, and then

submitted false expense reimbursements claiming these items were for business

purposes. The parties did agree in the plea agreement “that the loss involved in

[Ms. Wilson’s] crime is not an element of the offense, and both parties will be

free to litigate the issue of loss as part of the sentencing process.” Plea

Agreement, at 4, ¶ 3.




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      The government also agreed:

      To recommend the defendant receive a two (2) level reduction in the
      applicable offense level under U.S.S.G. § 3E1.1 for acceptance of
      responsibility. In addition, the United States will move at the time of
      sentencing for the defendant to receive an additional one (1) level
      reduction for acceptance of responsibility because the defendant
      timely notified the government of her intention to enter a plea of
      guilty. However, the government’s obligation concerning acceptance
      of responsibility is contingent upon the defendant’s continuing
      manifestation of acceptance of responsibility as determined by the
      United States. If the defendant denies or gives conflicting
      statements as to her involvement, falsely denies or frivolously
      contests relevant conduct that the court determines to be true,
      willfully obstructs or impedes the administration of justice as defined
      in U.S.S.G. § 3C1.1 (or willfully attempts to do so), or engages in
      additional criminal conduct, the United States reserves the right to
      withdraw this recommendation without breaching this
      agreement.

Plea Agreement, at 5, ¶ 5.c (emphasis added).

      Thus, according to the express terms of the plea agreement, the

government’s obligation to recommend an acceptance-of-responsibility reduction

was contingent upon its determination that Ms. Wilson continued to accept

responsibility and did not testify falsely or give conflicting statements at her

sentencing hearing. Here, the district court found that Ms. Wilson did just that:

she perjured herself by giving false and conflicting testimony at the sentencing

hearing and did not accept responsibility for her conduct.

      The government contended at sentencing that the amount of loss related to

Ms. Wilson’s crime of conviction and related conduct exceeded $400,000.

Ms. Wilson testified at the sentencing hearing for two days, attempting to deny

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the government’s loss amount by denying, item-by-item, that her reimbursement

claims were false. She was unable to provide receipts or other evidentiary

support for her assertions. On cross-examination, she had to admit that many of

the expense items that she had just testified were business expenses, were in fact,

sham entries to cover personal expenses. At the conclusion of the hearing, the

government noted that Ms. Wilson denied and contested items that were easily

proven to be for her personal benefit, and argued to the court that it should

consider whether she had actually accepted responsibility and whether she had

falsely denied relevant conduct. It did not recommend a sentence reduction for

acceptance of responsibility and, when questioned by the court, took the position

that Ms. Wilson had defeated any claim to an acceptance-of-responsibility

reduction.

       The district court agreed, finding that Ms. Wilson “blatantly perjured

herself before this court,” “acted in bad faith, . . . and . . . in effect denied

acceptance of responsibility for any” of her actions. Tr. Sentencing Hr’g, Vol. 3,

at 404, 405. The court described in detail many of the inconsistencies and

implausibilities in her testimony, as well as instances in which her testimony was

directly contradicted by the government’s evidence. Id. at 368-407. The court

noted some examples of her perjured testimony, but commented that it would take

“six or eight hours” to go through all of the instances of her perjury. Id. at 406.

The court also noted that when Ms. Wilson was confronted on cross-examination

                                            -5-
with evidence that her reimbursement claims were for her personal expenses, she

repeatedly characterized them as simply mistakes, and it concluded that

Ms. Wilson was essentially denying that she had engaged in a scheme to defraud,

though she had previously admitted to such when she pleaded guilty. Id. at 405.

It denied any reduction for acceptance of responsibility and found that the total

loss from Ms. Wilson’s scheme to defraud was, conservatively, $429,645.98. Id.

at 396. The court concluded that Ms. Wilson had “no real remorse for stealing

almost half a million dollars” from her employer, and that in six years of

sentencing hundreds, even thousands, of defendants, it had “never seen a

defendant who was less remorseful or less sorry for her actions” than Ms. Wilson.

Id. at 412.

      The plea agreement expressly stated that the government’s promise to

recommend an acceptance-of-responsibility reduction was contingent on

Ms. Wilson testifying truthfully, not falsely or frivolously contesting relevant

conduct, and actually accepting responsibility for her conduct. Further, it

expressly stated that if Ms. Wilson did testify falsely, give inconsistent

statements, or falsely and frivolously deny relevant conduct, it would not

constitute a breach of the agreement if the government withdrew a § 3E1.1

acceptance-of-responsibility recommendation. We conclude based on the nature

of the agreement, Ms. Wilson’s reasonable understanding of those terms, and the

record as a whole – including the district court’s finding that she perjured herself

                                          -6-
at the sentencing hearing, falsely denied relevant conduct, and did not actually

accept responsibility for her scheme to defraud – that the government did not

breach the plea agreement by not recommending a § 3E1.1 reduction. See United

States v. Moreno-Trevino, 432 F.3d 1181, 1187 (10th Cir. 2005) (finding

government did not breach plea agreement when it declined to recommend

§ 3E1.1 reduction after reasonably exercising its discretion under the agreement

to conclude defendant no longer warranted a reduction).

      Ms. Wilson does not argue that her waiver of appellate rights is otherwise

invalid under the framework set forth in Hahn, 359 F.3d at 1325. Accordingly,

the government’s motion to enforce the appeal waiver is GRANTED, and the

appeal is DISMISSED.


                                       ENTERED FOR THE COURT
                                       PER CURIAM




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