BEAM, Circuit Judge.
A jury convicted Gilberto Lara-Ruiz, also known as "Hill," of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
In February 2007, in the United States District Court for the Western District of Missouri, Lara-Ruiz was charged in a superseding indictment with (1) possession with intent to distribute 50 or more grams of methamphetamine on December 29, 2006, in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute 500 or more grams of methamphetamine on December 21, 2006, also in violation of § 841(a)(1); (3) conspiracy to distribute and possess with intent to distribute 500 or more grams of methamphetamine between December 2004 and December 26, 2006, in violation of §§ 841(a)(1) and 846; and (4) improper entry into the United States by an alien, in violation of 8 U.S.C. § 1325(a).
In May 2007, Lara-Ruiz entered into a plea agreement with the United States Attorney for the Western District of Missouri wherein he agreed to plead guilty to improper entry and possession with intent to distribute 500 or more grams of methamphetamine on December 21, 2006. In exchange for Lara-Ruiz's plea, the government agreed to the following non-prosecution provision:
Appellant's App. at 19. As an exception to this non-prosecution provision, the plea agreement provided,
Id. The district court accepted the plea agreement and sentenced Lara-Ruiz to a total of eighty-seven months' imprisonment.
Notwithstanding the terms of the plea agreement in Lara-Ruiz I, in April 2009, Lara-Ruiz was charged along with several co-defendants in a fifteen-count indictment in the Western District of Missouri. The counts in the indictment were related to Lara-Ruiz's involvement in methamphetamine distribution between January 1, 2005, and December 27, 2006. Among
In addition, Lara-Ruiz was charged with unlawfully using a firearm (Count 15) as follows:
Lara-Ruiz filed a motion to dismiss the indictment on due process grounds, asserting that the non-prosecution clause in the Lara-Ruiz I plea agreement barred his prosecution for the charges in Lara-Ruiz II. The magistrate judge agreed, in part, with Lara-Ruiz and issued a report recommending dismissal of all charges against Lara-Ruiz except the firearm offenses enumerated above. The magistrate judge reasoned that the firearm offenses were considered "crimes of violence" under the United States Sentencing Guidelines and that the plea agreement permitted the government to prosecute Lara-Ruiz for such crimes regardless of whether it had knowledge of the crimes at the time it entered into the plea agreement. The district court adopted the magistrate judge's report and recommendation, and the case proceeded to trial on the firearm counts.
At trial, the government attempted to prove unlawful firearm possession on Count 14 by introducing evidence that Lara-Ruiz showed a drug customer an AR-15-style rifle in mid-2006 and accepted.22 caliber and 9mm handguns in exchange for drug-debt reduction and methamphetamine in 2006. To prove unlawful use of a firearm on Count 15, the government presented evidence that Lara-Ruiz used a handgun to hit a drug customer in the head and shot the same drug customer's unoccupied vehicle multiple times. Lara-Ruiz's attorney openly conceded to the jury that Lara-Ruiz engaged in methamphetamine distribution, but challenged the credibility of the government's witnesses and argued that Lara-Ruiz did not unlawfully possess or use the firearms at issue.
The jury found Lara-Ruiz guilty of possessing a firearm in furtherance of a drug trafficking crime on Count 14. Particularly relevant here, the jury noted on the specific verdict form its finding that Lara-Ruiz accepted .22 caliber and 9mm handguns in exchange for drug-debt reduction and methamphetamine but that he did not unlawfully possess an AR-15-style rifle.
Lara-Ruiz argues that the district court misinterpreted the Lara-Ruiz I plea agreement when it held that, notwithstanding the agreement's non-prosecution provision, the government was permitted to prosecute Lara-Ruiz for the firearm offenses charged in Counts 14 and 15. We review a district court's interpretation of a plea agreement de novo.
Lara-Ruiz contends that the plea agreement's non-prosecution provision barred his prosecution for Counts 14 and 15 because, as the government has conceded, the government had knowledge of these offenses when it entered into the plea agreement. The key to Lara-Ruiz's argument is the plea agreement's exception to the non-prosecution provision, which provides that the government may prosecute Lara-Ruiz for
Appellant's App. at 19 (emphasis added). Lara-Ruiz contends that the "no knowledge" language at the end of the exception applies to all previously enumerated crimes — i.e., the government could only prosecute Lara-Ruiz for acts of "physical... violence against the person of another" if it had "no knowledge" of such acts at the time it entered into the plea agreement. We disagree.
Under the plain language of the exception to the non-prosecution provision, the phrase "no knowledge" does not modify the clause "an act or attempted act of physical or sexual violence against the person of another." All the clauses in the exception are separated by commas and the last clause is separated from previous clauses by the disjunctive "or." Also, there is not a comma before the words "of which" in the last clause. As such, the paragraph at issue plainly contains multiple independent clauses and the phrase "no knowledge" only applies to the last clause. See Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 470 (8th Cir.2004) (finding two independent clauses in a contract where the clauses were "separated by a comma and the disjunctive `or,' with no comma before the word `which' in the second clause"). The government was, accordingly, permitted to prosecute Lara-Ruiz for acts of "physical ... violence against the person of another" even though it had knowledge of such acts at the time it entered into the plea agreement.
That said, an important question remains: Do the firearm offenses in this
To determine whether an "error" that was "plain" exists in this case, we begin with an analysis of the plain meaning of the phrase "physical violence," as used in the plea agreement. The adjective "physical" in this phrase plainly refers to concrete bodily acts as opposed to, for example, intellectual or emotional acts. Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1270, 176 L.Ed.2d 1 (2010); The Am. Heritage Coll. Dictionary 1050 (4th ed. 2007) (defining the term "physical" as "[o]f or relating to the body as distinguished from the mind or spirit"). And, the noun "violence" commonly refers to "[p]hysical force exerted for the purpose of violating, damaging, or abusing." The Am. Heritage Coll. Dictionary at 1531. In other words, the use of the term "violence" in the phrase at issue distinguishes violent force — "force capable of causing physical pain or injury," Johnson, 130 S.Ct. at 1271 — from lesser degrees of force, such as slight "offensive touching." Id. at 1270. The phrase "physical violence," then, clearly refers to a bodily act involving a substantial amount of force.
Further, the term "physical violence" is modified in the plea agreement by the phrase "against the person of another." This language unambiguously highlights the entrenched distinction in criminal law between crimes against the person and, for example, crimes against property. See, e.g., James v. United States, 550 U.S. 192, 200, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (noting that burglary and arson are classified as crimes against property, not crimes against the person); Stuart P. Green, Deceit and the Classification of Crimes: Federal Rule of Evidence 609(a)(2) and the Origins of Crimen Falsi, 90 J.Crim. L. & Criminology 1087, 1088 (2000) (noting the universal use of "interest-based" classifications in criminal law, such as "crimes against the person," "crimes against the state," "crimes against property," and "crimes against public order"). Therefore, an act of "physical ... violence against the person of another" plainly refers to a bodily act of substantial force against the person — not the property — of another.
We do not come to the same conclusion with regard to Count 15, however. To prove this charge, the government introduced the testimony of two witnesses who testified that Lara-Ruiz used a gun to hit a drug customer in the head. The government also introduced evidence that Lara-Ruiz shot the same drug customer's unoccupied vehicle multiple times. Lara-Ruiz concedes that, even if the act of shooting an unoccupied vehicle, by itself, is not an act of physical violence against the person of another, his conviction on Count 15 must stand. This is because the jury returned a guilty verdict on a general verdict form, and using a gun to hit someone in the head is undoubtedly an act of physical violence against the person of another. Under these circumstances, Lara-Ruiz cannot demonstrate a breach of the plea agreement with regard to Count 15 that affected his substantial rights — that is, he cannot show a "reasonable probability that, but for [the error in question], the result of [the trial] proceeding would have been different." United States v. Kent, 531 F.3d 642, 656 (8th Cir.2008) (quotation omitted); see Puckett, 556 U.S. at 141, 129 S.Ct. 1423 ("The defendant whose plea agreement has been broken by the Government will not always be able to show prejudice....").
Before we discuss Lara-Ruiz's remedy with respect to Count 14, we pause to address the government's argument
To support its waiver theory, the government relies on a discussion between the magistrate judge and Lara-Ruiz's attorney during the hearing on Lara-Ruiz's motion to dismiss the indictment. During the colloquy, the magistrate judge asked Lara-Ruiz's attorney,
Hr'g Tr. at 15 (Aug. 3, 2010) (emphasis added). Lara-Ruiz's attorney responded that "defense attorneys don't like to concede anything." Id. at 16. The magistrate judge then asked, "[The government] argues that they are crimes of violence, which were specifically excluded in the plea agreement in the prior case. Is that a correct statement and circumstance?" Id. Lara-Ruiz's attorney replied, "Based on the facts that the government alleges, that's true." Id.
We disagree with the government that this colloquy depicts an intentional relinquishment of a known right that bars us from reviewing Lara-Ruiz's conviction on Count 14 for plain error. Parsing out the particulars of the magistrate judge's questioning,
Next, Lara-Ruiz argues that the jury instructions constructively amended the indictment. The parties agree that plain error review applies because Lara-Ruiz failed to raise this issue below. See United States v. Gavin, 583 F.3d 542, 546-47 (8th Cir.2009) (applying plain error review to forfeited constructive amendment claim). "Constructive amendment occurs when the essential elements of the offense set forth in the indictment are altered, either actually or in effect, by the prosecutor or the court after the grand jury has passed upon them." Id. at 546 (internal quotation omitted). Since we have reversed Lara-Ruiz's conviction on Count 14 on other grounds, our analysis on this issue is limited to Count 15.
Lara-Ruiz argues that the jury instructions constructively amended Count 15 as charged in the indictment because the instructions listed the predicate drug trafficking crime as "distribution of methamphetamine"
Lara-Ruiz's constructive amendment argument has some merit. See United States v. Willoughby, 27 F.3d 263, 266 (7th Cir.1994) (noting that "[d]istribution and possession with intent to distribute are two separate trafficking offenses"). But, under plain error review, Lara-Ruiz must show that a constructive amendment affects his substantial rights and the fairness, integrity or public reputation of judicial proceedings. Gavin, 583 F.3d at 547.
Finally, Lara-Ruiz argues that he was deprived of a fair trial because defense counsel conceded to the jury that Lara-Ruiz was a methamphetamine dealer and that Lara-Ruiz previously pled guilty to a methamphetamine distribution offense. To the extent Lara-Ruiz argues that the trial court erred when it failed to sua sponte intervene and take curative measures, his argument is without merit. And, to the extent Lara-Ruiz challenges defense counsel's trial strategy, such a claim "should be brought by motion under 28 U.S.C. § 2255 rather than on direct appeal." United States v. Turner, 431 F.3d 332, 336 n. 4 (8th Cir.2005).
For the foregoing reasons, we (1) affirm Lara-Ruiz's conviction on Count 15; (2) reverse his conviction on Count 14 and the mandatory-minimum twenty-five year sentence on Count 15; and (3) remand with instructions to vacate Lara-Ruiz's conviction and sentence on Count 14 and to resentence Lara-Ruiz on Count 15.
United States v. Van Nguyen, 602 F.3d 886, 899 (8th Cir.2010).