United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1353
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Edward Lee Raifsnider, also known *
as William Biaselli, etc., *
*
Appellant. *
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Submitted: September 23, 2011
Filed: December 16, 2011
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Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
In 2005, Edward Raifsnider pled guilty to a federal firearm violation pursuant
to a written plea agreement. In 2008, he was indicted on federal fraud charges, and
he subsequently moved to dismiss the indictment as precluded by the 2005 plea
agreement. After the district court1 denied the motion to dismiss, Raifsnider pled
guilty but reserved the right to appeal the preclusion issue. See Fed. R. Crim. P.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting the Report and Recommendation of the Honorable
James C. England, then-Chief Magistrate Judge for the Western District of Missouri.
11(a)(2). Raifsnider now challenges the district court’s failure to dismiss the
indictment. We affirm.
I. BACKGROUND
In 2005, Raifsnider pled guilty in the Western District of Missouri to being a
felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1), pursuant to a
written plea agreement. The plea agreement explicitly excluded coverage of “any
charges which may or have been filed in this or other Districts . . . other than the
charges in this case.” The plea agreement stipulated to Raifsnider’s base offense
level and criminal history category under the sentencing guidelines but stated that
those stipulations did not bind the court. It also acknowledged that no promises other
than those contained in the written plea agreement had been made to induce
Raifsnider’s guilty plea, and it contained the following integration clause: “any other
terms and conditions not expressly set forth in this agreement do not constitute any
part of the parties’ agreement and will not be enforceable against either party.”
On September 1, 2005, Raifsnider appeared before a magistrate judge for the
change-of-plea hearing. When the magistrate judge inquired whether there were “any
other promises or representations in addition to what’s contained in the plea . . .
agreement,” the Assistant United States Attorney (“AUSA”) handling the firearm
violation noted that the parties also had agreed to a binding recommendation of a
180-month sentence pursuant to Rule 11(c)(1)(C), meaning that Raifsnider would be
allowed to withdraw the plea to the firearm violation if the court did not impose the
recommended 180-month sentence. The AUSA stated that he would file a notice with
the court reflecting this amendment to the written plea agreement. Immediately
thereafter, the magistrate judge asked Raifsnider whether “anyone made any other
promise of any kind to induce you . . . to plead guilty” other than what was contained
in the written plea agreement and the recommendation just announced by the AUSA.
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Raifsnider confirmed that there were no other inducements for his guilty plea to the
firearm violation.
The magistrate judge next asked a second AUSA, who was investigating
potential fraud charges against Raifsnider in the Western District of Missouri (“the
WDMO fraud charges”), whether there was “any record” he wanted to make. The
second AUSA responded that he wanted to mention “a variety of issues” that he had
discussed with Raifsnider and Raifsnider’s attorney earlier that day “so that
Raifsnider can agree that those were the sum total of our discussions.” The second
AUSA presented details of the parties’ discussions regarding charges pending against
Raifsnider’s wife and son and noted that decisions regarding Raifsnider’s family were
independent of Raifsnider’s decision to plead guilty to the firearm violation. He also
noted that the parties had discussed transferring federal fraud charges pending against
Raifsnider in other districts to the Western District of Missouri pursuant to Fed. R.
Crim. P. 20 (“the Rule 20 fraud charges”) and that the United States Attorney for the
Western District of Missouri would accept such transfers. He then described his
discussions with Raifsnider regarding the WDMO fraud charges and stated that he
would “draft a proposed charge and allow [Raifsnider] to plead guilty.” He
subsequently referred to both the WDMO and Rule 20 fraud charges when he stated:
I told [Raifsnider] that it’s my understanding, and I think [Raifsnider’s
attorney] concurred, that because he’s pled guilty to this gun case, those other
charges will be incorporated into the plea—into any Presentence Investigation
Report. That in the end, all the charges will be put into the same Presentence
Report and that a total sentence will eventually be determined by the court.
He later disclosed telling Raifsnider that the WDMO and Rule 20 fraud charges might
“add additional time” to the agreed 180-month sentence on the firearm violation, that
he currently had “no firm figure as to the fraud loss” on the WDMO fraud charges,
but that he would “try and get those pleas together as quickly as possible so that we
can get that going.”
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The magistrate judge then asked Raifsnider’s attorney to confirm the substance
of the conversations described by the Government. Regarding the first AUSA’s
amendment to the plea agreement, Raifsnider’s attorney simply added that the
Government agreed to file the notice of its Rule 11(c)(1)(C) recommendation within
ten days of the hearing. Regarding the second AUSA’s comments, Raifsnider’s
attorney stated that “we did discuss the expediting if at all possible, to the extent
possible, especially with the Rule 20 issues[,] of any sentencing.” He also explained
that he wanted to be clear “as to the broad range of things that we did discuss, none
of which are contingent on this plea.”
At this point, the magistrate judge asked several questions to confirm that
Raifsnider understood that his guilty plea to the firearm violation was independent
of his conversation with the second AUSA regarding the resolution of his WDMO
and Rule 20 fraud charges and of the charges involving his wife and son. The
magistrate judge first asked Raifsnider to confirm that “this is a total rendition of
what’s been said to you concerning this plea of guilty and the discussions that led up
to it.” The magistrate judge next asked whether Raifsnider understood that there was
no “correlation” between his guilty plea to the firearm violation and the charges
pending against his family. The magistrate judge then asked whether Raifsnider
understood that neither the plea agreement nor his discussions with the second AUSA
would “control” the sentences resulting from Raifsnider’s WDMO and Rule 20 fraud
charges because “[t]hey’ve got to stand on their own.” Finally, the magistrate judge
asked whether Raifsnider understood that “if it all blew up with regard to the other
cases, you’re still bound by the plea agreement that you have reached with regard to
this case, assuming the recommendation of the United States [under Rule 11(c)(1)(c)
for the 180-month sentence is] made as they say it will be made.” Raifsnider
answered each question in the affirmative. In answering a follow-up question,
Raifsnider specifically acknowledged that even if none of the Rule 20 fraud charges
were transferred, that would have “no effect on this plea.” “Understanding all that,”
Raifsnider confirmed that he still wished to plead guilty.
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A flurry of activity followed Raifsnider’s plea hearing. That same day,
Raifsnider filed a motion to expedite sentencing on the firearm violation. The next
day, the United States filed the promised Rule 11(c)(1)(C) notice recommending a
binding 180-month sentence for the firearm violation. The district court formally
accepted Raifsnider’s guilty plea on September 19, 2005. The court received fraud
charges against Raifsnider from the Western District of Kentucky (“the WDKY fraud
charges”) on November 9, 2005. On November 29, 2005, Raifsnider moved to
continue the change-of-plea hearing for the WDKY fraud charges. The court granted
the continuance and scheduled the change-of-plea hearing for January 19, 2006.
Meanwhile, on December 1, 2005, Raifsnider filed a pro se motion to withdraw his
guilty plea to the firearm violation. On January 19, 2006, Raifsnider refused to plead
guilty to the WDKY fraud charges, which were then transferred back to the Western
District of Kentucky. On March 7, 2006, the district court adopted the magistrate
judge’s Report and Recommendation denying Raifsnider’s motion to withdraw his
guilty plea to the firearm violation. On March 15, 2006, the district court sentenced
Raifsnider to the agreed 180-month term of imprisonment for the firearm violation.
The WDMO fraud charges had not yet been filed and, consequently, were not
addressed in the presentence investigation report or at sentencing.
The WDMO fraud charges were not formalized until October 22, 2008, when
a grand jury indicted Raifsnider on one count of interstate transportation of
fraudulently taken property in violation of 18 U.S.C. § 2314, one count of possessing
identity documents or authentication features with intent to unlawfully use or transfer
them in violation of 18 U.S.C. § 1028(a)(3), and one count of possessing a document-
making implement with intent to produce false identification in violation of 18 U.S.C.
§ 1028(a)(5). On March 31, 2009, a grand jury returned a superseding indictment
adding two counts of aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1), each of which carries a mandatory 24-month sentence to be served
consecutively with all other terms of imprisonment.
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Raifsnider moved to dismiss all five counts of the superseding indictment as
precluded by the 2005 plea agreement. He contended that he entered his guilty plea
to the firearm violation “in reliance on the Government’s promises that the pending
fraud related cases in the Western District of Missouri would be filed and combined
with the 180 month sentence on the felon in possession of a firearm case as part of
binding plea agreement.” He argued that the Government breached this promise by
“never fil[ing] the fraud case before [he] was sentenced on the gun case,” by refusing
to agree to run the original three fraud counts concurrently with the firearm violation,
and, because of their mandatory consecutive sentences, by adding the two aggravated
identity theft counts. The district court denied the motion, holding that the
Government never promised that the sentences on the WDMO fraud charges would
run concurrently with the sentence on the firearm violation, that the second AUSA’s
comments regarding the WDMO fraud charges were contingent on Raifsnider’s guilty
plea to the WDKY fraud charges, and that the Government was not required to
expedite the WDMO fraud charges after Raifsnider refused to plead guilty to the
WDKY fraud charges. Raifsnider conditionally pled guilty to all five counts. The
district court imposed sentences totaling 63 months and 2 days of imprisonment for
the first three counts to run concurrently with Raifsnider’s 180-month sentence on the
2005 firearm violation. After granting a downward departure from the 24-month
mandatory minimum sentence, the court imposed consecutive 18-month sentences on
the two identify theft counts to run consecutively to all other undischarged sentences.
Thus, the net effect of Raifsnider’s conviction on the WDMO fraud charges was a
sentence that extended 36 months beyond the 180-month sentence for the firearm
violation. Raifsnider timely appeals.
II. DISCUSSION
“[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). This
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is so because the Government’s breach of a promise that induced a guilty plea
violates the due process rights of the defendant. United States v. Jensen, 423 F.3d
851, 854 (8th Cir. 2005). Raifsnider contends that the Government breached the 2005
plea agreement by failing to file the WDMO fraud charges before he received the
180-month sentence on the firearm violation. Raifsnider offers two theories as to
what promise the Government breached by filing the fraud charges after his
sentencing hearing for the firearm violation. Under his first theory, he alleges that the
Government promised that “the yet unfiled fraud related cases . . . would be filed and
combined with the 180 month sentence on the felon in possession of a firearm case
as part of a binding plea agreement.” In other words, Raifsnider appears to contend
that the binding180-month sentencing recommendation applied to both the firearm
violation and the WDMO fraud charges. Under his second theory, Raifsnider
contends that the Government promised to file the WDMO fraud charges before he
was sentenced on the firearm violation so that the sentencing proceedings for the two
cases could be consolidated. The Government responds that it made neither promise,
and that even if it did, Raifsnider’s guilty plea to the firearm violation was not
induced by either promise.
“Issues concerning the interpretation and enforcement of a plea agreement are
reviewed de novo.” United States v. Paton, 535 F.3d 829, 835 (8th Cir. 2008)
(quoting United States v. Borer, 412 F.3d 987, 994 (8th Cir. 2005)). In determining
whether a plea agreement has been breached, courts interpret the agreement according
to general contract principles. United States v. Sanchez, 508 F.3d 456, 460 (8th Cir.
2007). The party asserting the breach has the burden of establishing it. United States
v. Leach, 562 F.3d 930, 935-36 (8th Cir. 2009). Thus, Raifsnider must show that the
Government made one of the promises he asserts and that the promise was part of the
“inducement or consideration” offered by the government in exchange for his plea.
See Santobello, 404 U.S. at 262.
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Raifsnider’s contention that the Government promised to limit the sentence for
both the firearm violation and the WDMO fraud charges to 180 months’
imprisonment is contradicted by the plain terms of the written plea agreement, which
explicitly excluded coverage of any charges other than those pending for the firearm
violation. The written plea agreement also contained an integration clause, which
“normally prevents a criminal defendant . . . from asserting that the government made
oral promises to him not contained in the plea agreement itself.” Leach, 562 F.3d at
935-36 (quoting United States v. Hunt, 205 F.3d 931, 935 (6th Cir. 2000)). An
integration clause will not, however, preclude proof of oral promises when both
parties concede that the written plea agreement does not contain all of the
Government’s promises that induced the defendant to plead guilty. Peavy v. United
States, 31 F.3d 1341, 1345 (6th Cir. 1994). Here, both parties concede that they
amended the written plea agreement to make a binding 180-month sentencing
recommendation pursuant to Rule 11(c)(1)(C). Thus, the Rule 11(c)(1)(C) promise
is binding with respect to the firearm violation despite the integration clause in the
written agreement.
The record does not, however, support Raifsnider’s assertion that this promise
extended to the WDMO fraud charges. The second AUSA contradicted any notion
that the sentence on the WDMO fraud charges was limited to the 180-month sentence
agreed upon for the firearm violation. He stated in open court that determining the
amount of money involved in Raifsnider’s fraud charges “won’t increase [the
sentence on the firearm] count, but it could affect the overall sentence because the
fraud counts may or may not add some additional time” (emphasis added). He
stressed this point yet again when he told the court that he had “no firm figure as to
the fraud loss at this point . . . [a]nd that could impact on Raifsnider’s overall offense
level when everything is grouped.” See U.S.S.G. § 2B1.1(b)(1) (calculating
sentencing guidelines offense level for fraud offenses based on amount of fraud loss).
Furthermore, neither the Government nor Raifsnider made any mention in the change-
of-plea hearing about agreeing to run the sentences concurrently. Raifsnider has not
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demonstrated that the Government’s promise of a binding 180-month sentencing
recommendation on the firearm violation also applied to the WDMO fraud charges
or that the Government promised that the sentence on the WDMO fraud charges
would run concurrently with the sentence for the firearm violation. The Government
cannot breach a promise it did not make. Thus, Raifsnider’s first theory for breach
of the plea agreement fails.
Raifsnider’s second theory alleges that the Government promised to file the
WDMO fraud charges before he was sentenced on the firearm violation so that the
sentencing proceedings for the two cases could be consolidated. As support for the
existence of this promise, Raifsnider relies on the second AUSA’s statement that he
would “allow” Raifsnider to plead guilty to the WDMO fraud charges. Raifsnider
argues that this statement became a promise to file the WDMO charges before the
sentencing hearing for the firearm violation, permitting consolidated sentencing
proceedings, when the second AUSA subsequently expressed his expectation that “in
the end, all the charges will be put into the same Presentence Report and . . . a total
sentence will eventually be determined by the court.” The Government responds that
this statement is not a promise, that Raifsnider breached any agreement for sentencing
consolidation by refusing to plead guilty to the WDKY fraud charges, and that even
if the statements could be construed as a promise, that promise was not part of the
inducement for Raifsnider’s guilty plea to the firearm violation.
Although the second AUSA’s disclosures at the 2005 plea hearing evidence a
common aspiration to consolidate sentencing proceedings for Raifsnider’s various
criminal charges, they fall short of demonstrating a commitment by the Government
to file the WDMO fraud charges before Raifsnider was sentenced for the firearm
violation. For example, the Government indicated that the consolidation of
sentencing proceedings was merely aspirational by stating that it had “no firm figure
as to the fraud loss at this point,” but would “try and get those pleas together as
quickly as possible so that we can get that going” (emphasis added). Raifsnider’s
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attorney confirmed that the parties’ discussion regarding sentencing consolidation
was merely aspirational when he added that they discussed the “expediting if at all
possible, to the extent possible, especially with the Rule 20 issues[,] of any
sentencing” (emphasis added). When the magistrate judge began to respond to this
statement, Raifsnider’s attorney conceded that this would be “difficult.” A statement
is a promise only if it creates a “justified expectation” in the promisee that the
promissor will “make good the assurance by performance.” Restatement (Second)
of Contracts § 2 cmt. a (1981). Although the Government said it would “try” to
determine the unknown amount of the fraud losses quickly—a necessary component
for the applicable sentencing guidelines calculations—and understood that doing so
might allow Raifsnider to consolidate his sentencing proceedings, these statements
did not create a justified expectation that the Government had undertaken the
obligation to file the WDMO fraud charges before Raifsnider was sentenced on the
firearm violation so that sentencing proceedings for “all the charges” could be
consolidated.
Raifsnider’s argument further strains credulity because it requires construing
the second AUSA’s statements not only as a promise to abide by a filing deadline but
also as a promise to abide by that deadline regardless of how Raifsnider might
attempt to frustrate the Government’s ability to meet it. The same day he made this
purported bargain, Raifsnider moved to expedite sentencing on the firearm violation,
an action clearly at odds with the Government’s stated need for time to evaluate the
loss associated with the fraud charges. Regarding the Rule 20 fraud charges,
Raifsnider first delayed and ultimately rejected a guilty plea to the WDKY fraud
charges, thus preventing consolidation of sentencing proceedings for “all of the
charges.” During this time, Raifsnider also moved to withdraw his plea on the
firearm violation, leaving the Government no reason to believe that either the WDMO
or WDKY fraud charges would need to be addressed at any sentencing hearing in the
near future. When his motion to withdraw the plea was finally resolved with no other
fraud charges having been filed, Raifsnider did not object to the scheduling of a
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sentencing hearing one week later, and indeed, Raifsnider never withdrew his motion
to expedite sentencing on the firearm violation. Although the second AUSA’s
statements reveal the Government’s willingness to consolidate Raifsnider’s
sentencing proceedings, they did not provide Raifsnider with a justified expectation
that the Government would only file the WDMO fraud charges if it did so before
Raifsnider’s sentencing hearing for the firearm violation despite whatever efforts
Raifsnider might take to delay or prevent consolidation of sentencing proceedings for
“all the charges.”
Both of Raifsnider’s theories suffer from an additional problem. Even
assuming that the second AUSA’s statements somehow constituted a promise under
either of Raifsnider’s theories, Raifsnider has failed to demonstrate that any of these
statements induced his guilty plea. See Leach, 562 F.3d at 935. Raifsnider repeatedly
affirmed, both before and after the second AUSA disclosed the substance of their
conversations, that his guilty plea to the firearm violation was not contingent on the
second AUSA’s statements or the resolution of the other cases that could be brought
against him. He first affirmed this when he signed the written plea agreement, which
expressly disclaimed coverage of “any charges which may or have been filed in this
or other Districts . . . other than the charges in this case.” After the Government
explained that the parties had amended the written plea agreement to include a
binding Rule 11(c)(1)(C) 180-month sentence recommendation for the firearm
violation, Raifsnider confirmed that there were no other inducements for his guilty
plea. Even after the second AUSA disclosed his previous conversations with
Raifsnider concerning Raifsnider’s family, the Rule 20 fraud charges, and the
WDMO fraud charges, Raifsnider continued to affirm that his guilty plea was not
contingent on proceedings in the other cases through his responses to questions posed
by the magistrate judge. Raifsnider confirmed that “nothing in the discussions
. . . can control . . . what the ultimate disposition may be of those other cases.
They’ve got to stand on their own.” He acknowledged that “if it all blew up with
regard to the other cases, [he was] still bound by the plea agreement . . . to this case,
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assuming the recommendation of the United States [w]as made as they say it will be
made” (emphasis added).2 “Understanding all that,” Raifsnider acknowledged that
he still wished to plead guilty. In short, Raifsnider repeatedly affirmed at the plea
hearing that the binding 180-month sentencing recommendation for the firearm
violation was the only inducement to his guilty plea beyond what was contained in
the written plea agreement, and Raifsnider “is bound by this representation.” See
Leach, 562 F.3d at 937.
When a plea is not contingent on a promise, that promise cannot induce the
plea. See id. at 936-37 (holding that the Government’s promise to the defendant was
not part of the inducement to plead guilty because it was made after the guilty plea).
Given the repeated acknowledgment by all involved that Raifsnider’s guilty plea was
not contingent on the second AUSA’s statements or the resolution of the other cases,
Raifsnider has not shown that the guilty plea to the firearm violation “rests in any
significant degree” on a promise to “combine” the sentences for the WDMO fraud
charges and the firearm violation or to file the WDMO fraud charges before the
sentencing hearing for the firearm violation. See Santobello, 404 U.S. at 262.
Because the Government did not breach the 2005 plea agreement, the district court
did not err in denying Raifsnider’s motion to dismiss the WDMO fraud charges.3
2
Raifsnider does not dispute that the Government fulfilled this promise.
3
Raifsnider also challenges the extent of the sentencing-guidelines downward
departure granted by the district court. We lack jurisdiction to consider this challenge
because, “[a]bsent an unconstitutional motive, the extent to which a district court
exercises its discretionary authority to depart downward is not subject to review.”
United States v. Sykes, 356 F.3d 863, 865 (8th Cir. 2004); see also United States v.
Rublee, 655 F.3d 835, 839 (8th Cir. 2011). Raifsnider does not contend that the
district court had an unconstitutional motive in limiting the extent of the downward
departure, and we thus dismiss Raifsnider’s appeal of his sentence.
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III. CONCLUSION
For the foregoing reasons, we affirm.
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