                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 26, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 07-4002
          v.                                               (D. Utah)
 BRIAN B. TUCKER,                                 (D.C. No. 04-CR-170-DB)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, A ND ER SO N, and TYM KOVICH, Circuit Judges.




      In a prior order, this panel has determined unanimously to grant the parties’

request for a decision on the briefs without oral argument. See Fed. R. App. P.

34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral

argument.

      Defendant-appellant Brian B. Tucker pled guilty, pursuant to a plea

agreement, to aiding and abetting armed bank robbery, in violation of 18 U.S.C.

§§ 2113(a), (d) and 2; aiding and abetting the using and carrying of a firearm in


      *
        This order and judgment is not binding precedent except under the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.
relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2; using an

explosive to commit a felony, in violation of 18 U.S.C. §§ 844(h)(1) and 2; and

aiding and abetting bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2.

Tucker was sentenced to twelve years’ imprisonment, followed by four years of

supervised release. Tucker appeals, arguing the government breached the plea

agreement. W e affirm.



                                 BACKGROUND

      The facts are not disputed and, as detailed in Tucker’s statement in advance

of plea, reveal the following: On February 20, 2004, Tucker aided and abetted in

the commission of an armed bank robbery at the Far W est Bank in Orem, Utah, in

which two other defendants, Troy W endall Hansen and Steven Bennett Bingham,

obtained approximately $2,200. Hansen carried a shotgun into the bank and

discharged a shell into a wall; Bingham carried a handgun. Tucker assisted in the

robbery by creating a diversion across town by placing an explosive device

underneath a car and calling in a bomb threat to police, and by calling another

bank and telling a bank employee that he (Tucker) had placed a bomb in the bank

building. On M arch 5, 2004, Tucker assisted in planning and shared in the

proceeds of an unarmed robbery at Zion’s Bank in Herriman, Utah, in which

Bingham and H ansen entered the bank and obtained approximately $78,000.




                                         -2-
       After his arrest, Tucker agreed to plead guilty to four counts originating out

of the robberies, in exchange for several promises from the government. Pursuant

to the plea agreement, the government agreed to recommend “the ten year

minimum mandatory consecutive sentence as provided for pursuant to 18 U.S.C.

§ 924(c).” Statement by Defendant in Advance of Plea of Guilty at ¶ 12(B)(2), R.

Vol. III at Doc. 140 (hereafter “Statement”). The government made no specific

sentencing recommendations regarding the other three counts to which Tucker

agreed to plead guilty. The government also agreed to recommend a two or three

level reduction in Tucker’s offense level under the advisory United States

Sentencing Commission, Guidelines M anual (“USSG ”), if Tucker demonstrated

an acceptance of responsibility, and agreed to consider filing a motion for a

downward departure for substantial assistance under USSG § 5K1.1, which would

permit the district court to sentence below any applicable statutory minimum

sentences. 1

       In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”) which calculated an advisory sentencing range under



       1
        Pursuant to USSG § 5K1.1, “[u]pon motion of the government stating that
the defendant has provided substantial assistance in the investigation or
prosecution of another person who has comm itted an offense, the court may
depart from the guidelines.” In the Commentary designated as an Application
Note to § 5K1.1, the Guidelines provide that “substantial assistance in the
investigation or prosecution of another person who has comm itted an offense may
justify a sentence below a statutorily required minimum sentence.” USSG
§5K1.1, comment. (n.1).

                                          -3-
the Guidelines of forty-six to fifty-seven months’ imprisonment. Additionally, as

the PSR noted, the § 924(c) (use of a firearm) and the § 844(h) (use of an

explosive) each carried a statutory minimum ten-year prison term, to be served

consecutively to any other sentences imposed. 2 Thus, Tucker faced a possible

sentence totaling 286 to 297 months, if the two consecutive statutory minimum

terms of ten years were imposed consecutively to the advisory Guideline sentence

of forty-six to fifty-seven years.

      Prior to sentencing, the government did file a § 5K1.1 motion, based upon

Tucker’s substantial assistance, thereby allowing the district court to sentence

below the twenty-year statutory minimum. At sentencing, the government

recommended a total term of fifteen years’ imprisonment for all four counts of

conviction. The district court imposed a twelve-year sentence. Tucker appeals,

arguing the government breached the plea agreement by recommending a sentence

of more than ten years for all four counts.

      2
       Pursuant to 18 U.S.C. § 924(c)(1)(D)(ii), “no term of imprisonment
imposed on a person under this subsection shall run concurrently with any other
term of imprisonment imposed on the person, including any term of imprisonment
imposed for the crime of violence . . . during which the firearm was used, carried
or possessed.” Id. Similarly, 18 U.S.C. § 844(h) provides that:

      the court shall not place on probation or suspend the sentence of any
      person convicted of a violation of this subsection, nor shall the term
      of imprisonment imposed under this subsection run concurrently with
      any other term of imprisonment including that imposed for the felony
      in which the explosive was used or carried.

Id.

                                         -4-
                                  D ISC USSIO N

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

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

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

2007). “General principles of contract law define the content and scope of the

government’s obligations under a plea agreement.” Id. “W e thus look to the

express language in the agreement to identify both the nature of the government’s

promise and the defendant’s reasonable understanding of this promise at the time

of the entry of the guilty plea.” Id. W e 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.

      The plea agreement in this case specifically acknowledged that count II of

the indictment (using and carrying a firearm in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c)) carried a minimum mandatory sentence of ten

years, to run consecutively to any other sentence imposed. It further specifically

acknowledged that count V of the indictment (using an explosive to commit a

felony, in violation of 18 U.S.C. § 844(h)(1) and (2)) carried a ten-year sentence,

in addition to any sentence imposed for the underlying felony. 3

      3
       The plea agreement did not make it clear that, as § 844(h) specifically
provides, the ten-year term is not supposed to “run concurrently with any other
                                                                     (continued...)

                                        -5-
      As indicated, in exchange for Tucker’s guilty pleas to the four counts, the

government agreed to recommend a two- or three-level reduction for acceptance

of responsibility. Additionally, and of particular importance to this case, the

government further agreed to “[r]ecommend the ten (10) year minimum

mandatory consecutive sentence as provided for pursuant to 18 U.S.C. § 924(c).”

Statement at ¶ 12(B)(2). The government also agreed to dismiss two of the counts

in the six-count indictment and to move for a Rule 35 reduction in sentence “after

the defendant has been sentenced and after he has provided truthful information

and/or testimony regarding the bank robberies, specifically the Grand Junction

case.” Id. at ¶ 12(B)(4). Finally, in addition to agreeing not to indict Tucker’s

wife, the government agreed to evaluate whether to file a motion for a §5K1.1

downward departure based on Tucker’s substantial assistance, although the

government agreed that “in the event that the Government deems that a § 5K1.1

departure is not appropriate and does not make a motion for downward departure

it will N OT be grounds for the defendant to withdraw his plea of guilty.” Id. at

¶ 12(B)(5).

          Pointing to the sentence in the plea agreement where the government

agreed to recommend the ten-year “minimum mandatory consecutive sentence as

provided pursuant to 18 U.S.C. § 924(c),” Tucker argues the plain language of the

      3
       (...continued)
term of imprisonment including that imposed for the felony for which the
explosive was used or carried.” 18 U.S.C. § 844(h) (emphasis added).

                                         -6-
plea agreement demonstrates that the government agreed to recommend a total

sentence of ten years on all counts. He further argues that, given his lack of

sophistication, that was his understanding of the government’s promise when he

signed the plea agreement. Thus, he argues, the government breached the terms

of the plea agreement when, at sentencing, it recommended a fifteen-year

sentence.

      To resolve this issue under our precedents as stated above, we examine the

language of the plea agreement in order to identify “both the nature of the

government’s promise and the defendant’s reasonable understanding of this

promise at the time of the entry of the guilty plea.” VanDam, 493 F.3d at 1199.

W e start with the language of the plea agreement.

      The plea agreement contains the government’s commitment to recommend

the “minimum mandatory consecutive sentence as provided pursuant to § 924(c).”

By its plain terms, the agreement gave notice to Tucker that the ten-year sentence

recommendation related to the § 924(c) count, and that it was consecutive to any

other sentence imposed. Tucker argues it implicitly conveyed the commitment

that the government would not recommend any other sentence beyond the ten-

year sentence. W e do not agree with Tucker that the plea agreement contained

that implicit commitment. Its plain language simply does not support such a

construction— it specifically related to only one of the four counts for which

Tucker would be sentenced, and it indicated it would be consecutive to any other

                                         -7-
sentence. There would be no reason to refer to the ten-year sentence as

“consecutive” if it was the only sentence the government was permitted to

recommend. Nor would it make sense to specifically reference § 924(c), if the

government’s commitment actually related to all four counts of conviction. Thus,

the government’s silence on any sentencing recommendation on the remaining

three counts does not, in our view, constitute an agreement to not recommend any

sentence on any of those other counts.

      Further, we must “‘evaluate the promise in light of the defendant’s

reasonable understanding of the promise at the time of the guilty plea.’” United

States v. Rodriguez-Delma, 456 F.3d 1246, 1250 (10th Cir. 2006) (quoting United

States v. Guzman, 318 F.3d 1191, 1195-96 (10th Cir. 2003)), cert. denied, 127 S.

Ct. 1338 (2007). W e conduct our analysis in light of the entire record. See id. at

1251 (finding no breach of plea agreement after “consideration of the entire

record”). W e begin our examination of the record by considering what occurred,

and what representations were made by the government concerning its sentencing

recommendation, at the change of plea hearing in which Tucker pled guilty in

accordance with the plea agreement.

      In the change of plea hearing, the district court began by reviewing the plea

agreement. It initially noted that the plea agreement did not make it clear that the

ten-year sentence for count V, using an explosive to commit a felony, was a

mandatory minimum to be imposed consecutively to any sentence for the

                                         -8-
underlying felony. This led to the district court’s express statement to Tucker as

follow s:

       [T]o summarize, . . . count one charges you with armed bank robbery
       and it carries a maximum penalty of 25 years. It could be much
       lower than that. Count two charges you with using and carrying a
       firearm in relation to a crime of violence and carries a minimum
       mandatory sentence of ten years. That is above and on top of and in
       addition to and consecutive to whatever you get for the armed bank
       robbery, and then you have in count five this crime charging you
       with using an explosive to commit a felony, and that has an
       additional mandatory minimum requirement of at least ten years.

Tr. of Change of Plea at 6, R. Vol. VII. This, in turn, led to Tucker’s counsel

asking that the district court clarify for Tucker whether the ten-year sentence for

using the explosive would have to run consecutively to the ten-year sentence for

carrying a firearm, or was it possible for them to run concurrently. After the

district court expressed dismay that the parties had not clarified everything in the

plea agreement, the court informed Tucker:

       I don’t have any discretion for the gun charge, and then another ten
       years mandatory for the explosives charge. I think you are probably
       looking at 20 years mandatory plus whatever you get on the bank
       robbery. That is my guess just based on many sentences in the past.
       I don’t know. I think that is a pretty important thing for you to have
       straight before you enter a plea of guilty.

Id. at 10.

       Government counsel subsequently informed the court that a USSG §5K1.1

motion to depart downward based on substantial assistance would be filed, which

led to Tucker himself asking the district court the following: “given the nature of



                                          -9-
the mandatory ten years and the minimum mandatory, how much discretion do

you have with those two given the government motions to go below them?” Id. at

11. The court responded, “[O]nce the 5K1.1 is filed by the prosecutor, I can fall

all the way to the bottom.” Id.

      After further colloquy, the district court reminded Tucker that, should the

government not file a § 5K1.1 motion for downward departure, he could not

“come back in here and set aside the plea that [he] ha[d] entered today.” Id. at

27. Tucker indicated he understood. From our review of the record, there was no

discussion at all at the change of plea hearing concerning a sentencing

recommendation by the government.

      The government then filed, as it had indicated it w ould, a USSG §5K1.1

motion for a downward departure based upon Tucker’s substantial assistance. In

that motion, the government stated as follow s:

      It is the motion of the Government that the defendant receives no
      additional sentence for Count I, Armed Bank Robbery and Count VI,
      Bank Robbery. The defendant must currently serve a minimum
      mandatory ten-year sentence for Counts II and IV. Based upon the
      defendant’s assistance in the investigation of several cases . . . where
      the defendant has identified several suspects. Although the
      information provided by the defendant has not led to any arrests or
      prosecutions the defendant has provided said information. . . .
      Pursuant to the Sentencing Guidelines . . . the defendant’s total
      offense level is 23, with a criminal history category of I resulting in a
      range of 46-57 months. Additionally, the defendant must serve
      minimum mandatory terms of 120 months, in Counts II and V by
      statute. A downward departure requesting no additional sentence on
      Counts I and VI would have no impact on the statutory sentence as
      required in C ounts II and V.

                                         -10-
Gov.’s M ot. for Downward Departure Pursuant to USSG §5K1.1 at 1-2, R. Vol.

III (emphasis added). Thus, the government represented that it would not

recom mend any additional sentence beyond that required under the two

mandatory statutory ten-year provisions for possessing the firearm and the

explosive. W e find no other representations by the government regarding

sentencing anywhere in the record.

      From that review of the record, we must assess Tucker’s “reasonable

understanding,” VanDam, 493 F.3d at 1199, of the government’s promise in the

plea agreement to recommend a ten-year “minimum mandatory consecutive

sentence as provided for pursuant to . . . § 924(c).” Statement at ¶ 12(B)(2). In

our view, Tucker’s questions at the change of plea proceeding indicated he was

hardly unsophisticated, and, indeed, indicated that he understood the sentencing

options available to the court. 4 Further, the court’s comm ents at the change of

      4
          At one point, the following exchange occurred:

      M R. TUCKER: W e are stipulating to a 5K1.1 downward departure,
      and –
      THE COURT: You are?
      M R. TUCKER: Yes, and a Rule 35 motion from the government
      either pre- or post-sentence.
      THE COURT: Are you the lawyer or is he?
      M R. TUCKER: I have read every legal book they have.
      THE COURT: How long has this been going on?
      M R. TUCKER: Two years.
      THE COURT: You could be in your third year through law school.
      M R. TUCKER: I’m sure trying.

                                                                       (continued...)

                                         -11-
plea proceeding conveyed to Tucker that he faced a substantial sentence,

including mandatory statutory sentences totaling twenty years, which could be

reduced depending on the degree of his assistance to the government. Thus, as

the district court informed Tucker, if a successful §5K1.1 motion was filed, the

court could depart below the statutory mandatory ten-year terms for the firearms

and explosives charges. In that context, the government’s recommendation in the

plea agreement that Tucker serve the ten-year minimum mandatory sentence for

the § 924(c) conviction was meaningful— the government, in other words,

recommended that the district court should not depart below that ten-year

sentence, even though, following the §5K1.1 motion, it would have discretion to

do so. However, nowhere did the government agree to recommend a total

sentence of ten years for all counts, and we discern no indication that Tucker was

anything other than completely aware of what sentencing prospects he faced, and

completely aware that, depending on the extent of his §5K1.1 substantial

assistance, his sentence could drop to some indeterminate level below the

otherwise-applicable two ten-year statutory mandatory sentences.

      W e therefore conclude that Tucker reasonably understood that the

government would recommend that he serve ten years for the § 924(c) count, but

that there was a possibility of a longer sentence, depending primarily on how the



      4
        (...continued)
Tr. of C hange of Plea at 10-11, R. Vol. VII.

                                         -12-
§5K1.1 motion developed. W hile the plea agreement was perhaps not a model of

clarity, the district court adroitly clarified any confusion and ensured that Tucker

understood the sentencing ranges he faced. M oreover, there was no ambiguity as

to the government’s sentencing recommendation. And, the government’s position

remained consistent throughout— from the plea agreement, where it agreed to

recommend ten years for the § 924(c) notwithstanding the possibility that the

district court could sentence beneath any applicable mandatory statutory sentence

if a §5K1.1 motion was filed; through the change of plea hearing, where Tucker

was informed that the statutory terms, including the § 924(c) term, would apply

unless a successful §5K1.1 motion permitted the district court to sentence to a

lower term; through the §5K1.1 motion itself, where the government moved for

no further sentence beyond the statutory terms, including the § 924(c) ten-year

term.

        Subsequently, at sentencing, the government explained its position on

sentencing as follow s:

        I would ask the Court to focus on the nature and circumstances of the
        offenses. It is true that M r. Tucker has provided some information to
        the government. Some of the information was quite good, and most
        recently I really thought that we could help M r. Tucker even more,
        except the prosecutors in the case that he provided information on
        decided he just had too much liability with them in his testimony and
        chose not to use him based upon that and because of this case. . . .

              Judge, he is facing roughly 24 years in prison with the
        minimum mandatories. I still believe that a significant sentence
        should be imposed for a couple of reasons. The nature and

                                         -13-
       circumstances of the case, and they are most egregious, . . . [and]
       most recently . . . the defendant’s motions before this Court where he
       seems to minimize his role in these cases significantly.

                                          ...

            The factors under 3553 I think will be met if the Court were to
       impose a 15-year sentence.

Tr. of Sentencing at 9-10, R. Vol. VIII. Government counsel explained that the

government’s additional reason for recommending the fifteen-year sentence was

because Tucker’s co-defendants, Hansen and Bingham, both cooperated and

received ten-year sentences, whereas “M r. Tucker has not cooperated to that

degree, at least not involving this particular case.” Id. at 12.

       The district court ultimately sentenced Tucker to twelve years, and

explained that the court felt that sentence was “consistent” with the sentences

imposed on Hansen and Bingham:

       I do think it is worth a couple of extra years for your lack of coming
       forward, and especially with the generosity of the government with
       the substantial assistance motion that they have made. I could sit
       here and very easily in this case have decided not to grant any
       departure based on that motion. I frankly could make a very good,
       strong position that you have not rendered substantial assistance.

              I am troubled by the level of animosity and hatred and vitriol
       that was passed from the family of the defendant to law enforcement
       including you, M r. Tucker. You stated the authorities used every
       means to obtain a guilty plea. They threatened to indict my wife and
       further jeopardize my children. Those kinds of outrageous comments
       – again, in many ways the best thing you could have done was plead
       guilty in this case.

Id. at 17.

                                          -14-
      After carefully reviewing the entire record, we conclude that the

government did not breach the plea agreement when it recommended a fifteen-

year sentence.



                                 C ON CLU SIO N

      For the foregoing reasons, the sentence is AFFIRM ED.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




                                       -15-
