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United States v. Schremser

filed: August 22, 1991.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DAVID MICHAEL SCHREMSER, DEFENDANT-APPELLEE; UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. ARMANDO GARCIA-SOTO, DEFENDANT-APPELLANT; UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. JORGE VALENCIA-FERMIN, DEFENDANT-APPELLANT; UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. EFREN RUEBEN AGUILAR-GONZALEZ, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding; DC No. CR-89-1273-01-K; DC No. CR-89-1273-03-K; DC No. CR-89-1273-04-K; DC No. CR-89-1273-06-K.

Boochever, Kozinski, and O'Scannlain, Circuit Judges.

MEMORANDUM

The appellants, each convicted of possession with intent to distribute approximately 47.1 kilograms of marijuana after pleading guilty pursuant to a plea agreement, challenge their sentences on appeal.

I

David Schremser was sentenced to thirty-three months' imprisonment, with a three-year term of supervised release. Schremser makes several arguments with respect to the district court's two-point increase in the offense level pursuant to the Sentencing Guidelines' firearm enhancement for narcotics crimes, United States Sentencing Comm'n, Guidelines Manual § 2D1.1(b)(1) (Nov. 1989) [hereinafter Guidelines ].

A

The district court denied Schremser an evidentiary hearing on whether to apply the firearm increase. We review the denial of an evidentiary hearing for abuse of discretion. United States v. Monaco, 852 F.2d 1143, 1148 (9th Cir. 1988), cert. denied, 488 U.S. 1040 (1989).

Schremser had the opportunity to raise any disputed factual matters from the presentence report prior to the district court's sentence. United States v. Rigby, 896 F.2d 392, 394-95 (9th Cir. 1990); see also United States v. Upshaw, 918 F.2d 789, 791 (9th Cir. 1990) (opportunity to submit written objections sufficed), cert. denied, 111 S. Ct. 1335 (1991). Schremser did in fact object to the enhancement prior to sentencing, but he made only a legal argument; he did not raise any factual dispute nor request a hearing before the district court ruled. Any attempt to argue the facts after sentencing came too late. The district court did not abuse its discretion in denying the evidentiary hearing.

B

Schremser's plea agreement stated in part that the government would not argue that the firearm should be used to enhance Schremser's offense level. Schremser contends that the government did not fulfill its obligation because it failed to make an "affirmative recommendation" against the upward adjustment. A claim that the government breached a plea agreement must be reviewed de novo. United States v. Fisch, 863 F.2d 690, 690 (9th Cir. 1988) (per curiam).*fn1

This circuit has required the government to adhere strictly to the letter of plea agreements. See, e.g., id. ; United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984). However, we know of no additional "enthusiasm" requirement in the law or in the plea agreement. See United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir. 1989) (per curiam). Schremser fails to note any comments made by the government contrary to the plea agreement. There is no indication that the government failed to comply with its obligation.*fn2

C

Schremser argues that the district court erred in concluding that section 2D1.1(b)(1) applied to him. The district court's ruling must be upheld unless clearly erroneous. United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990). Schremser may be held accountable for a cohort's possession if the possession furthered the crime and was reasonably foreseeable to him. See Guidelines § 1B1.3; see also Garcia, 909 F.2d at 1350 (adjustment made although defendant did not know that cohort had gun); Willis, 899 F.2d at 875.

For the purposes of section 2D1.1(b)(1), no connection between the offense and the possession need be shown except contemporaneity unless it is "clearly improbable" that the two are unconnected. United States v. Heldberg, 907 F.2d 91, 93 (9th Cir. 1990). Here the connection is not improbable, because the gun was found at a nearby motel room and a reasonable inference is that Schremser (or his roommate) was carrying it in connection with the drug transaction. This fact distinguishes this case from United States v. Vasquez, 874 F.2d 250 (5th Cir. 1989). See United States v. Willard, 919 F.2d 606, 610 (9th Cir. 1990) (distinguishing Vasquez similarly); see also United States v. Stewart, 926 F.2d 899, 901 (9th Cir. 1991) ...


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