                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3572
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Rene Fernandez Noriega

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                             Submitted: June 13, 2014
                               Filed: July 30, 2014
                                  ____________

Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
                           ____________

GRUENDER, Circuit Judge.

     Rene Fernandez Noriega challenges the district court’s1 imposition of a 210-
month term of incarceration following his guilty plea. Noriega argues that he is



      1
       The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
entitled to resentencing because the Government breached a provision of the written
plea agreement between the parties. We affirm.

       Noriega pled guilty to conspiracy to distribute methamphetamine, in violation
of 21 U.S.C. §§ 841(b)(1)(A) and 846. In paragraph 8 of the plea agreement, Noriega
admitted several facts, including the following:

            Beginning on a date unknown, but at least as early as
            February 2013, Defendant owned Fermont Trucking in San
            Luis, Arizona, and used that company’s semi-trailer truck
            to knowingly and voluntarily conceal and transport a large
            quantity of controlled substance throughout the United
            States in exchange for U.S. currency.

Noriega also specifically admitted to delivering approximately twenty pounds of
methamphetamine on February 8, 2013. In paragraph 11 of the agreement, the parties
also recognized the sentencing guidelines factors that could apply:

            The Sentencing Guidelines establish a sentencing range
            based upon factors determined to be present in the case,
            which include, but are not limited to the following:
                  (a) the nature of the offense to which Defendant
                        is pleading guilty;
                  (b) the quantity of drugs involved, with the
                        parties stipulating that it was reasonably
                        foreseeable to Defendant that the conspiracy
                        involved 5 kilograms of a mixture and
                        substance containing methamphetamine, for a
                        base offense level of 36 pursuant to USSG
                        § 2D1.1;
                  (c) Defendant’s role in the offense;
                        ***




                                        -2-
Although the parties stipulated to a drug quantity and associated base offense level,
the plea agreement did not contain any stipulation regarding a possible guideline
enhancement based on Noriega’s role in the offense. See USSG § 3B1.1. Paragraph
14 of the plea agreement expressly allowed the parties to “make whatever comment
and evidentiary offer they deem appropriate at the time of sentencing and entry of
plea, provided that such offer or comment does not violate any other provision of this
Plea Agreement.”

        The United States Probation Office prepared and filed a presentence
investigation report (“PSR”), which recommended a base offense level of 38 based
on its conclusion that the conspiracy involved multiple drug transactions with several
controlled substances that, when aggregated, resulted in a drug quantity sufficient for
a base offense level of 38. The PSR also contained a recommendation for a four-level
enhancement for Noriega’s role as an organizer and leader of the conspiracy under
§ 3B1.1(a). Noriega filed objections to the PSR, in which he challenged the factual
basis for the proposed base offense level and role enhancement as involving drug
quantities in excess of the amount agreed to by the Government in paragraph 11(b)
of the plea agreement.

       At sentencing, the Government emphasized that “although the drug quantity
shows a base offense level of 38 [in the PSR], the Government has agreed to abide
by its stipulation of the base offense level of 36 in this case.” The district court
agreed to adopt the stipulation of the parties in determining Noriega’s base offense
level, observing that “[t]he parties have stipulated to a Level 36 for base offense level
for the drug quantity here, and that’s not going to change.” The Government,
however, sought to introduce additional evidence supporting the PSR’s proposed
four-level role-in-the-offense enhancement. This evidence included the testimony of
a special agent with the Drug Enforcement Agency (“DEA”) and a cooperating
witness. Incidental to their testimony concerning Noriega’s role, the testimony also
described Noriega’s involvement in several drug transactions with aggregate drug

                                          -3-
quantities in excess of the amount agreed upon in paragraph 11(b) for purposes of
establishing the base offense level. Noriega objected to this evidence, arguing
that—based on the drug-quantity stipulation in paragraph 11(b)—evidence of
relevant conduct at sentencing was limited only to the drug quantities that were part
of the February 8, 2013 delivery. The district court overruled this objection,
explaining that “[t]he stipulation in the plea agreement as to base offense level does
not drive for every other purpose the determination of relevant conduct.” Based on
the testimony of the DEA agent and the cooperating witness, the district court found
the base offense level to be 36, applied the four-level role enhancement, determined
an advisory sentencing guidelines range of 210 to 262 months, and sentenced Noriega
to 210 months’ imprisonment. This appeal followed.

      “We review questions regarding the interpretation and enforcement of plea
agreements de novo.” United States v. Mosley, 505 F.3d 804, 808 (8th Cir. 2007).
Where, as here, the written plea agreement has been accepted by the district court,
“we generally interpret the meaning of the terms in the agreement according to basic
principles of contract law.” Id.

       In a case of jointly undertaken criminal activity, “relevant conduct” is defined
in the Guidelines as “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant” as well as “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense.” USSG § 1B1.3(a)(1)(A)-(B). Noriega
argues that the drug-quantity stipulation in paragraph 11(b) of the plea agreement
constituted the full scope of his relevant conduct and that by introducing evidence of
additional drug quantities incidental to its evidence of Noriega’s role in the
conspiracy, the Government breached the plea agreement.



                                         -4-
       This argument, however, impermissibly seeks to expand the drug-quantity
stipulation to bind the Government on issues of relevant conduct and Noriega’s role
in the offense in a manner not supported by the plain meaning of the plea agreement’s
text. Paragraph 11 of the plea agreement simply recites some of the factors relevant
to the guidelines calculation, including “the quantity of drugs involved, with the
parties stipulating that it was reasonably foreseeable to Defendant that the conspiracy
involved 5 kilograms of a mixture and substance containing methamphetamine, for
a base offense level of 36 pursuant to USSG § 2D1.1.” Paragraph 11(b) merely
constitutes an agreement between the parties as to the base offense level and in no
way purports to limit the scope of relevant conduct from which the court could
determine whether to apply a role-in-the-offense enhancement. Indeed, paragraph
11(c) actually lists “Defendant’s role in the offense” as one of several possible
sentencing factors that could be considered by the district court in determining a
sentencing range, but it provides no stipulation as to an enhancement based on
Noriega’s role in the offense. Moreover, paragraph 14 expressly allowed the parties
to “make whatever comment and evidentiary offer they deem appropriate at the time
of sentencing and entry of plea, provided that such offer or comment does not violate
any other provision of this Plea Agreement.” Because the plea agreement contained
no provision limiting the scope of relevant conduct or defining Noriega’s role in the
offense and because the Government unequivocally stood by its stipulation to a base
offense level of 36, we conclude that the Government did not breach the plea
agreement by introducing the additional evidence to establish Noriega’s role under
USSG § 3B1.1(a). See United States v. Selvy, 619 F.3d 945, 948, 950 (8th Cir. 2010)
(holding that, where a “fair reading of the plea agreement reveal[ed] no language
preventing the government from arguing for an increased sentence based on conduct
prior to 2006,” “the government did not breach the plea agreement” by “advocating
for inclusion of uncharged drug trafficking activity dating back to September 1998
as relevant conduct”).




                                         -5-
        Noriega suggests that this conclusion is inconsistent with United States v. Lara,
690 F.3d 1079 (8th Cir. 2012), and United States v. DeWitt, 366 F.3d 667 (8th Cir.
2004). Both Lara and DeWitt are distinguishable. In Lara and DeWitt, we held that
the Government breached a plea agreement when it stipulated to a drug quantity and
corresponding base offense level and then initiated an effort at the sentencing hearing
to obtain a higher drug quantity and base offense level. Lara, 690 F.3d at 1081-83;
DeWitt, 366 F.3d at 671-72. In this case, however, the Government made clear at
sentencing that it intended to honor the stipulated base offense level of 36, which the
district court adopted, and then sought a role-in-the-offense enhancement for which
there was no such stipulation. This case is more analogous to United States v. Leach,
491 F.3d 858 (8th Cir. 2007), in which we rejected a DeWitt-based argument where
the Government stipulated to a base offense level and later sought an enhancement
under Chapter Four of the Guidelines. Id. at 863-65. The plea agreement in Leach
contained a provision similar to paragraph 14, which provided that “[a]s to any other
Guidelines issues, the parties are free to advocate their respective positions at
sentencing.” Id. We observed that, as here, the parties “only stipulated to [the
defendant’s] base offense level under Chapter Two of the Guidelines” and “did not
address possible adjustments.” Id. at 864. Therefore, as in Leach, we conclude that
the Government did not breach the plea agreement as it was “free to advocate for the
. . . enhancement because it was an issue that had not been agreed to or specifically
listed in the agreement.” Id.

      For the foregoing reasons, we affirm the district court’s interpretation of the
plea agreement and its imposition of Noriega’s sentence.2



      2
       Noriega does not challenge the district court’s actual application of the role
enhancement under USSG § 3B1.1(a) based upon the evidence received at the
sentencing hearing, nor does Noriega challenge the substantive reasonableness of his
sentence. Thus, we do not address those issues. See United States v. Brown, 550 F.3d
724, 729 n. 4 (8th Cir. 2008).

                                          -6-
BRIGHT, Circuit Judge, concurring.

       I concur in the opinion of the Court. However, I write separately to express my
concern that Rene Fernandez Noriega’s 210-month sentence is excessive, and to
reiterate, as the United States Attorney General stated just last year, that our
sentencing system is broken and a new approach must be taken. See United States
v. Stokes, 750 F.3d 767, 772-73 (8th Cir. 2014) (Bright, J., concurring); United States
v. Hiveley, 61 F.3d 1358, 1363-66 (8th Cir. 1995) (Bright, J., concurring).

       Noriega, a 50-year-old man, was convicted of a non-violent drug conspiracy
offense and had no prior criminal history. He faced a mandatory minimum sentence
of 10 years in prison and through enhancements under the Guidelines he received a
sentence of 17.5 years (210 months). This is exactly the type of case that Attorney
General Eric H. Holder, Jr., was referring to in his August 12, 2013 speech to the
American Bar Association. See Eric Holder, Attorney General of the United States,
United States Department of Justice, Remarks at the Annual Meeting of the American
Bar Association’s House of Delegates (Aug. 12, 2013), available at
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html.            As
Attorney General Holder stated in his remarks, “[b]y reserving the most severe
penalties for serious, high-level, or violent drug traffickers, we can better promote
public safety, deterrence, and rehabilitation—while making our expenditures smarter
and more productive.” Id. Attorney General Holder has mandated that the Justice
Department modify its charging policies to avoid “draconian mandatory minimum
sentences” for nonviolent drug offenders. Id.

      This mandate should be taken seriously. Until reforms come to the Guidelines
and other sentencing provisions, those in the system—the probation officers, the U.S.
Attorneys, defense counsel, and judges—must seek ways to correct this broken
system and ensure that sentences are commensurate with the underlying crime. That



                                         -7-
did not happen in this case and, as a result, Noriega has suffered a severe penalty that
is unwarranted given his lack of a criminal history.
                        ______________________________




                                          -8-
