FILED
NOT FOR PUBLICATION MAY 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10336
Plaintiff - Appellee, D.C. No. 2:09-cr-00054-WBS-2
v.
MEMORANDUM*
TAMI KISHI DEANDA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted April 14, 2011
San Francisco, California
Before: THOMAS and RAWLINSON, Circuit Judges, and CARNEY, District
Judge.**
Defendant-Appellant Tami Kishi Deanda appeals the district court’s
sentence of twenty-four months imprisonment following Ms. Deanda’s guilty plea
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
to one count of possessing counterfeit United States currency in violation of 18
U.S.C. § 472. At sentencing, the district court concluded that Ms. Deanda’s
offense level under the Sentencing Guidelines should be enhanced pursuant to
USSG § 2B5.1(b)(2)(A), which increases a defendant’s offense level by two levels
if a defendant “manufactured or produced any counterfeit obligation or security of
the United States, or possessed or had custody of or control over a counterfeiting
device or materials used for counterfeiting.” Applying the § 2B5.1(b)(2)(A)
enhancement to Ms. Deanda’s offense level automatically resulted in another four
level increase to her offense level pursuant to § 2B5.1(b)(3). We find that the
district court clearly erred in applying the § 2B5.1(b)(2)(A) enhancement because
the evidence in the record lacked sufficient indicia of reliability to support that
enhancement. Accordingly, we vacate the sentence and remand for resentencing.
As a threshold matter, Ms. Deanda’s appeal is not barred by the appellate
waiver provision contained in the parties’ plea agreement. The appellate waiver
provision became null and void when the Government breached the plea agreement
by introducing at the sentencing hearing the statements that Ms. Deanda previously
had made during a debriefing interview with law enforcement. See United States
v. Sandoval-Lopez, 122 F.3d 797, 800 (9th Cir. 1997); United States v. Baramdyka,
95 F.3d 840, 843 (9th Cir. 1996).
2
We refuse, however, to consider Ms. Deanda’s argument that the district
court erred by considering at sentencing the Government’s characterizations of
information contained in an agent’s report of Ms. Deanda’s debriefing interview
because the plea agreement prohibited the Government’s reliance on such
information. Ms. Deanda raises this issue for the first time on appeal, having failed
to properly raise and preserve it before the district court. In exceptional cases, the
Court sometimes considers arguments first raised on appeal. See AlohaCare v.
Haw. Dep’t of Human Servs., 572 F.3d 740, 744 (9th Cir. 2009). This is not an
exceptional case warranting departure from the general rule. See United States v.
Robertson, 52 F.3d 789, 791-92 (9th Cir. 1994); United States v. Flores-Payon,
942 F.2d 556, 560 (9th Cir. 1991) (explaining that a breach of plea agreement
claim is “precisely the type of claim” that should first be raised before the district
court).
We review for clear error the district court’s determination that the evidence
presented by the Government was sufficient to satisfy its burden of demonstrating
by a preponderance of the evidence that application of the § 2B5.1(b)(2)(A)
enhancement was warranted. See United States v. Rivera-Alonzo, 584 F.3d 829,
836 (9th Cir. 2009). A district court’s factual finding constitutes a clear error if,
“‘although there is evidence to support it, the reviewing court on the entire
3
evidence is left with the definite and firm conviction that a mistake has been
committed.’” United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en
banc) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Incorrect calculation of the Sentencing Guidelines range is a significant procedural
error that is not harmless and requires reversal. See United States v. Smith, 561
F.3d 934, 941-42 (9th Cir. 2009) (en banc), cert. denied, 130 S. Ct. 445 (2009).
The record reveals that the basis for the district court’s finding that the
§ 2B5.1(b)(2)(A) enhancement applied was: (1) the plea agreement’s factual basis
in which Ms. Deanda admitted that “Lodi police received information that [Ms.
Deanda] was manufacturing counterfeit $100 bills” and that counterfeiting
templates (on a computer and other storage devices) and papers were found in the
residence that Ms. Deanda was sharing with others who were themselves involved
in the counterfeiting scheme; (2) Ms. Deanda’s statement to the district court at the
change of plea hearing that she had “very little” involvement in the counterfeiting
scheme; (3) hearsay statements in the Presentence Investigation Report (“PSR”)
reflecting the probation officer’s analysis of reports prepared by law enforcement
regarding Ms. Deanda’s involvement in the counterfeiting scheme, which were
vigorously disputed by Ms. Deanda; and (4) representations and arguments made
at the sentencing hearing by the Assistant United States Attorney (“AUSA”)
4
summarizing a case agent’s report on that agent’s debriefing of Ms. Deanda. This
evidence was not sufficient to support an enhancement that ultimately increased
Ms. Deanda’s offense level by six levels. More specifically, the Government
presented no evidence that Ms. Deanda admitted that she personally washed ink off
bills, reprinted bills using computer templates and a laser printer, or had control
over any of the devices and materials used by others to manufacture counterfeit
bills. Nor did the Government present any testimony under oath, documentary
evidence, or physical evidence to support or corroborate the hearsay statements in
the PSR or the representations and arguments made by the AUSA at the sentencing
hearing asserting that she did so.
In sum, the evidence presented by the Government was all unsubstantiated
hearsay and statements by Ms. Deanda that prove that she simply associated with
people involved in manufacturing counterfeit currency. The district court erred by
not holding the Government to its burden.1 Because the district court’s application
of the enhancement caused it to incorrectly calculate the applicable Sentencing
Guidelines range, the district court committed a procedural error that was not
1
The district court applied a preponderance of the evidence standard when
deciding whether to apply the § 2B5.1(b)(2)(A) enhancement. Finding that
standard was not met, we do not address Ms. Deanda’s argument that the district
court should have applied a heightened clear and convincing evidence standard
pursuant to United States v. Staten, 466 F.3d 708, 720 (9th Cir. 2006).
5
harmless and remand for resentencing is required. See Smith, 561 F.3d at 941-42.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
6
FILED
U.S. v. Deanda, No. 10-10336 MAY 11 2011
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.