FILED
United States Court of Appeals
Tenth Circuit
September 3, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-6010
ROY DEAN BULLCOMING,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA *
(D.C. NO. 5:08-CR-00055-F-1)
Fred L. Staggs, Oklahoma City, Oklahoma, for Defendant - Appellant.
Arvo Q. Mikkanen, Assistant United States Attorney, (John C. Richter, United
States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff -
Appellee.;
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
HARTZ, Circuit Judge.
*
After examining the briefs and appellate record, 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.
Roy Dean Bullcoming was indicted in the United States District Court for
the Western District of Oklahoma on seven counts of embezzlement and theft
from Indian tribal organizations, see 18 U.S.C. § 1163, and eight counts of theft
from gaming establishments on Indian lands, see id. § 1167. He entered into a
plea agreement in which he agreed to plead guilty to one count of embezzlement.
In exchange, the government dropped the other 14 counts and entered into several
stipulations relating to restitution and his offense level under the United States
Sentencing Guidelines (USSG). At sentencing, the government—without any
objection from Mr. Bullcoming—presented testimony from a witness who claimed
that Mr. Bullcoming had shown no remorse for his actions, and it also argued in
favor of an upward variance, suggesting that it could probably never prove the
full amount of money he took. The district court varied upward from the
guidelines range, sentencing him to 36 months’ imprisonment. On appeal
Mr. Bullcoming contends that the government breached the plea agreement and
that the court abused its discretion in varying upward. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
I. BACKGROUND
A. The Offense and Other Related Conduct
Mr. Bullcoming, a member of the Cheyenne-Arapahoe Tribe, was an
elected member of its Business Committee, representing Cheyenne District One.
He was entrusted with administering his district’s share of the net gaming revenue
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generated by the tribe’s two Lucky Star casinos. The district’s share is to be used
to finance various tribal programs and to provide services for tribal members,
such as child welfare. In addition, a Business Committee member may dole out
“Emergency Assistance” funds, which are intended to meet the emergency needs
of individual tribal members.
Mr. Bullcoming did not follow these rules. Several times, he used the
tribe’s funds for his personal use. Counts 1 through 7 of the indictment involved
his receipt of the following sums of tribal money: (1) checks totaling $10,000 in
“Emergency Assistance” money to purchase a 2001 Pontiac Grand Am, titled in
his name and used as a personal vehicle (counts 1 and 2); (2) two checks totaling
$4,589.07 to make monthly payments in 2004 for a 2003 Toyota Tundra truck,
also titled in his own name and used as a personal vehicle (counts 3 and 4); (3) a
check for $2,108.50 used for repairs in 2004 to his Tundra (count 5); and (4) two
checks totaling $8,995 to finance the 2004 purchase of a 1998 Dodge Caravan as
a gift to Mildred K. Black, his former fiancée (counts 6 and 7).
Furthermore, between 2002 and 2007 Mr. Bullcoming took $21,056.89
from the tribal casinos by making false claims for travel-related expenses (such as
travel, per diem, and registration fees) for gaming-industry training conferences
and trade shows that he never attended. This misconduct was the basis for counts
8 through 15 of the indictment. In addition, uncharged, related misconduct
admitted by Mr. Bullcoming included (1) 54 wire transfers of $11,095 to his niece
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Tamara Beaver, and (2) some 60 other unauthorized disbursements of $16,035 in
tribal funds, including “Emergency Assistance” funds, primarily to himself and
his daughter.
B. The Plea Agreement
Mr. Bullcoming was indicted on February 20, 2008, and entered into a plea
agreement on July 23. Under the terms of the agreement, Mr. Bullcoming would
plead guilty to count 1 of the indictment (relating to the purchase of his 2001
Pontiac Grand Am). In return, the government would drop the other charges and
agree not to charge him with any other crimes relating to his theft or
embezzlement during 2002 through January 1, 2005. The agreement contained
two stipulations regarding the total losses from Mr. Bullcoming’s misconduct.
The stipulation regarding losses for purposes of restitution stated:
[T]he parties further agree that, as part of the sentence resulting from
defendant’s plea, the Court will enter an order of restitution to all
victims of the defendant’s relevant conduct as determined by
reference to the United States Sentencing Guidelines, including, but
not limited to, losses caused by defendant’s relevant conduct within
the meaning of USSG § 1B1.3 as follows, an additional $90,350.75
unlawfully taken from Southwest Hotel and Casino Corporation, as
agent for Lucky Star Casinos, and/or Cheyenne-Arapaho Tribes as
referenced in Counts 2 through 15 of the Indictment and the amounts
derived from other instances of abstracting, embezzlement, theft,
willful misapplication, taking and conversion to his use or that of
another as detailed in the three 404(b) notices filed in this action; for
a total of $95,350.75.
R., Vol. 1 at 30–31. And the stipulation for purposes of calculating his offense
level under the guidelines stated:
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Based upon the information that is known to the parties on the date
this agreement is executed, they expect to take, but are not limited to,
the following positions at sentencing: The parties hereby stipulate
that the total amount of loss that should be attributed to this
defendant for guideline calculation purposes is $95,350.75 and an
order of restitution must be entered to reimburse the victim(s) of the
crimes in that amount.
Id. at 32 (emphasis added).
The agreement also contained stipulations that Mr. Bullcoming should
receive a two-level downward adjustment for acceptance of responsibility under
USSG § 3E1.1(a), and that if the district court found § 3E1.1(b) also applicable,
the government would move for an additional one-level downward adjustment
under that provision. Two further paragraphs demarcated the limits of the parties’
agreement on sentencing. One reserved the right to present evidence and
argument on unstipulated matters:
Apart from any expressed agreements and stipulations, the parties
reserve the right to advocate for, and present evidence relevant to,
other guideline adjustments and sentencing factors for consideration
by the U.S. Probation Office and the Court.
Id. at 33. The other released the government from its stipulations if it discovered
additional information:
It is the expectation of the United States that its criminal
investigation of defendant’s conduct . . . will cease upon the signing
of this plea agreement. However . . . the United States expressly
reserves the right to take positions that deviate from the foregoing
stipulations, agreements, or recommendations in the event that
material credible evidence requiring such a deviation is discovered
during the course of the United States’ investigation subsequent to
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the signing of this agreement or arises from sources independent of
the United States, including the U.S. Probation Office.
Id. The agreement concluded with another reservation of rights by the
government:
The United States reserves the right to inform the Probation Office
and the Court of . . . the nature and extent of defendant’s activities
with respect to this case and all other activities of defendant which
the United States deems relevant to sentencing . . . .
Id. at 39.
The same day that he entered into the plea agreement, Mr. Bullcoming
executed a separate “Petition to Enter Plea of Guilty.” Id. at 18. In the petition
he described the plea agreement as follows: “Plea Guilty to Count 1 other counts
to be dismissed. I receive acceptance of responsibility and waive certain appeal
rights.” Id. at 26.
C. Sentencing Proceedings
At sentencing, four tribal officials testified as representatives of the
victims. One of them, Erica Hart-Whitecloud, the chief of staff for the tribal
governor’s office, said that Mr. Bullcoming “has continually refused to accept
responsibility for his actions.” Id., Vol. 4 at 20. She noted that in 2005 he had
been convicted in tribal court of embezzling $55,000 in tribal funds but “[a]fter
three years, the defendant has virtually ignored the tribal courts and the orders of
the tribal courts,” id., and “has paid no restitution to the tribes,” id. She
concluded that he “has not shown any remorse . . . and should be sentenced at the
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highest level that he can be sentenced.” Id. at 21. Mr. Bullcoming did not object
to any of this testimony.
The district court calculated Mr. Bullcoming’s total offense level as 13 and
his criminal-history category as I. His guidelines sentencing range was therefore
12 to 18 months’ imprisonment. See USSG ch. 5, pt. A. The court also ordered
$101,585.68 in restitution, an amount he does not contest.
Of most importance to this appeal, the court also varied upward from the
guidelines range. The probation office’s presentence investigation report (PSR)
had so recommended. Part E of the PSR (which addressed guidelines departures)
noted that Mr. Bullcoming’s tribal-court convictions would have raised his
criminal-history category to III if they had been considered in the guidelines
calculation. See USSG § 4A1.2(i) (tribal sentences are not counted in calculating
criminal-history category, but may be considered as a basis for departure under
§ 4A1.3). It then stated in Part F, which addresses the possibility of a variance:
Based on the information provided in Part E., regarding a departure
for inadequacy of criminal history, a sentence above the advisory
guidelines would be consistent with the factors listed in 18 U.S.C.
§ 3553 that consider the nature and circumstances of the offense and
the history and characteristics of the defendant; specifically, the need
for the sentence to afford adequate deterrence to criminal conduct
and to protect the public from further crimes of the defendant.
R., Vol. 2 at 26. At the sentencing hearing the government took the same view.
As support for a variance, it cited the poverty of the Cheyenne-Arapahoe tribal
members, Mr. Bullcoming’s abuse of a position of trust, and the need to deter
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theft and embezzlement by those involved with Indian casinos in Oklahoma. The
government also observed that Mr. Bullcoming’s 2005 tribal-court embezzlement
convictions had not been considered in his criminal-history calculation and that
he had not fully complied with the court’s orders in the tribal case. Just before
concluding, the government remarked:
In short, Your Honor, this is a very serious offense. This defendant,
the government probably will never be able to prove the full amount
of restitution that he ultimately should be entitled to pay clearly
based upon the evidence that the government was able to collect that
might refer to what would be a fraction of what Mr. Bullcoming
actually did take.
Id., Vol. 4 at 29. Mr. Bullcoming’s counsel did not object to the government’s
statements; and in his subsequent argument in opposition to a variance, he did not
address the possibility of other, unproved amounts of loss.
The district court varied upward, imposing a sentence of 36 months’
imprisonment—double the top of the calculated guidelines range. In doing so, it
cited the severity of “the approximately 82 different instances in which
[Mr. Bullcoming] stole from his people.” Id. at 45. Its emphasis, however, was
on the need for deterrence, remarking that “it is my conclusion that the most
important statutory object of sentencing in this case, Mr. Bullcoming, is to make
an example of you. It is just that simple.” Id. at 46.
II. DISCUSSION
A. Alleged Breach of Plea Agreement
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“Where the Government obtains a guilty plea which is predicated in any
significant degree on a promise or agreement with the U.S. Attorney, such
promise or agreement must be fulfilled to maintain the integrity of the plea.”
United States v. Villa-Vazquez, 536 F.3d 1189, 1196 (10th Cir. 2008) (internal
quotation marks omitted). To interpret a plea agreement, we “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.” United States v. Trujillo, 537 F.3d 1195, 1200 (10th
Cir. 2008) (internal quotation marks omitted). Furthermore, “we rely on general
contract principles and construe any ambiguities against the government as the
drafter of the agreement.” Id. (internal quotation marks omitted). And “[w]e
evaluate the record as a whole to ascertain whether the government complied with
its promise.” United States v. VanDam, 493 F.3d 1194, 1199 (10th Cir. 2007).
Because Mr. Bullcoming failed to argue in district court that the
government had breached the plea agreement, we review for plain error. See
Puckett v. United States, 129 S. Ct. 1423, 1428 (2009), overruling in part United
States v. Yanez-Rodriguez, 555 F.3d 931, 939 & n.3 (10th Cir. 2009). Thus, he
cannot prevail “unless he establishes that the district court committed error, the
error was plain, and the error affected his substantial rights.” United States v.
Dryden, 563 F.3d 1168, 1170 (10th Cir. 2009). “Even then we possess discretion
with respect to granting relief, depending on our assessment of whether the error
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seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id. (brackets and internal quotation marks omitted).
Mr. Bullcoming argues on appeal that the government breached the plea
agreement in two respects. First, he complains that at the sentencing hearing the
government presented the testimony of Ms. Hart-Whitecloud, who argued that he
had failed to accept responsibility, even though the plea agreement stipulated that
he would receive an acceptance-of-responsibility downward adjustment under the
guidelines. Second, he states that the parties stipulated to the amount of loss, yet
the government argued at sentencing “that the stipulated loss was only a fraction
of the thefts.” Aplt. Br. at 12.
Neither alleged breach constituted plain error entitling Mr. Bullcoming to
relief. To begin with, he has not shown how Ms. Hart-Whitecloud’s testimony
breached the plea agreement. To be sure, the government stipulated to a
reduction in Mr. Bullcoming’s offense level for acceptance of responsibility, so it
could well have been a breach had the government argued for an upward variance
based on his failure to accept responsibility. See Villa-Vazquez, 536 F.3d at
1196–97. But Mr. Bullcoming has not shown that the government bore
responsibility for Ms. Hart-Whitecloud’s comments that he had not accepted
responsibility. Victims have a right to be heard at sentencing, see 18 U.S.C.
§ 3771(a)(4), and the government cannot control what victims say to the court.
Mr. Bullcoming has presented no evidence that the government could have
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anticipated Ms. Hart-Whitecloud’s statements regarding acceptance of
responsibility, let alone that the government orchestrated the comments.
Moreover, it appears that Ms. Hart-Whitecloud was referring only to
Mr. Bullcoming’s failure to accept responsibility for his tribal offenses, not the
federal offenses. In short, Mr. Bullcoming has failed to show that the government
clearly breached the plea agreement in this regard. We also observe that
Mr. Bullcoming has failed to show that he was prejudiced by Ms. Hart-
Whitecloud’s statement regarding his failure to accept responsibility. The
government made no mention of failure to accept responsibility when it argued
for an upward variance, nor did the district court in explaining its sentence.
As for the government’s comment that it “probably will never be able to
prove the full amount of restitution that he ultimately should be entitled to pay,”
R., Vol. 4 at 29, we again question whether the comment breached the plea
agreement. Although the government stipulated to a specific loss amount for
restitution purposes (and Mr. Bullcoming does not complain about the district
court’s award of restitution), it did not similarly bind itself for offense-level
purposes. The agreement states that the parties “expect to take, but are not
limited to, the following positions at sentencing: . . . the total amount of loss that
should be attributed to [Mr. Bullcoming] for guideline calculation purposes is
$95,350.75 . . . .” Id., Vol. 1 at 32. Mr. Bullcoming does not explain how the
government’s statement in support of a variance violates this provision. In any
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event, Mr. Bullcoming has failed to show how he was prejudiced by the
government’s brief, and rather inarticulate, comment regarding uncalculated
losses. The district court made no mention of the matter and made very clear that
the overriding reason for its upward variance was to deter others.
Accordingly, we reject Mr. Bullcoming’s claim that he is entitled to relief
because of a breach of the plea agreement by the government.
B. Upward Variance
Mr. Bullcoming also contends that the district court abused its discretion in
varying upward to impose a sentence of 36 months’ imprisonment—double that of
the top of the applicable guidelines range. “We review the district court’s
variance from the advisory Guideline range through application of the 18 U.S.C.
§ 3553(a) factors for substantive reasonableness, utilizing the abuse-of-discretion
standard.” Yanez-Rodriguez, 555 F.3d at 945–46 (footnote omitted). Under that
standard, a district court has “broad discretion to consider particular facts in
fashioning a sentence under 18 U.S.C. § 3553(a),” id. at 946, which it abuses only
if it “renders a judgment that is arbitrary, capricious, whimsical, or manifestly
unreasonable,” id. (internal quotation marks omitted). “We must consider the
totality of the circumstances, including the extent of deviation from the
sentencing Guideline, but we may not apply a presumption of unreasonableness.”
Id. We have reviewed the district court’s explanation for the sentence it imposed
and discern no abuse of discretion.
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III. CONCLUSION
We AFFIRM Mr. Bullcoming’s sentence.
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