USA v. Walter Lucas

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12855
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER LUCAS,
a.k.a. Walter Steven Lucas,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cr-00168-TFM-N-1
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2 Opinion of the Court 22-12855
____________________
Before WILSON, L UCK , and EDMONDSON, Circuit Judges.
PER CURIAM:
Walter Lucas appeals his above-guidelines 60-month sen-
tence after pleading guilty to possessing a firearm while under a
protection order: a violation of 18 U.S.C. § 922(g)(8). On appeal,
Lucas contends that the government breached the plea agreement
by (1) failing to recommend a sentence at the low end of the advi-
sory guidelines range, and (2) by presenting witness testimony that
caused the district court to vary upwards. No reversible error has
been shown; we affirm.
In February 2022, Lucas pleaded guilty pursuant to a written
plea agreement.1 In exchange for Lucas’s guilty plea, the govern-
ment agreed -- in pertinent part -- to recommend that Lucas “be
sentenced at the low end of the advisory guideline range as deter-
mined by the Court.” The plea agreement also provided that the
government would “provide all relevant sentencing information to
the Probation Office for purposes of the pre-sentence investiga-
tion.” The agreement allowed both parties “to allocute fully at the
time of sentencing.”
1 We note that the plea agreement contained a waiver of Lucas’s right to ap-
peal his sentence but reserved expressly Lucas’s right to appeal a sentence im-
posed above the advisory guidelines range. Lucas’s appeal is thus properly
before us.
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22-12855 Opinion of the Court 3
Following Lucas’s guilty plea, a probation officer prepared a
Pre-Sentence Investigation Report (“PSI”). The probation officer
determined that Lucas was subject to a four-level enhancement un-
der U.S.S.G. § 2K2.1(b)(6)(B) because he had possessed a firearm in
connection with another felony offense: aggravated stalking. The
probation officer calculated the advisory guidelines range as 37 to
46 months’ imprisonment.
Lucas filed objections to the PSI. Among other things, Lucas
denied that he had committed aggravated stalking and, thus, ob-
jected to the four-level enhancement under section 2K2.1(b)(6)(B).
On 12 August 2022 -- in accordance with the district court’s
local rules -- the government filed a notice advising the district
court that the sentencing hearing would likely exceed thirty
minutes. The government said it intended to call various witnesses
to testify. To the extent Lucas maintained his objection to the PSI’s
guidelines calculation, the government said it would call between
one and three witnesses to testify about facts supporting the section
2K2.1 enhancement. The government also said it intended to call
one witness to testify about “problematic and concerning behav-
ior” Lucas had engaged in after entering his guilty plea: conduct
the government said was pertinent to the sentencing factors set out
in 18 U.S.C. § 3553(a). Despite Lucas’s alleged post-plea conduct,
the government said that “[b]ecause the defendant does not appear
to have violated the terms of his Plea Agreement, the United States
will honor its obligation to recommend a sentence at the low-end
of the Guidelines.”
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4 Opinion of the Court 22-12855
At the sentencing hearing, the government called four wit-
nesses. Three of those witnesses -- Lucas’s ex-wife (K.L.), K.L.’s
neighbor ( Jasmine Malone), and Officer Joshua Coleman -- testified
about the events leading up to Lucas’s arrest. Briefly stated, K.L.
testified that she had obtained a protection-from-abuse order
against Lucas, but that Lucas had continued to follow, harass, and
intimidate her.
Malone testified that, on 6 September 2021, Lucas entered
her backyard and appeared to be watching K.L.’s home over the
fence. When Malone spoke to Lucas, Lucas talked about “getting
back at her” and about “taking her to a warehouse and just tasing
the hell out of her”: comments Malone understood as referring to
K.L. Based on Lucas’s behavior and comments, Malone called 911.
Malone testified further that Lucas entered her backyard several
more times throughout the night and into the following morning.
At one point, Malone could see on her security camera that Lucas
had a gun in his waistband.
K.L. testified that, on 6 September 2021, Lucas twice visited
her home in violation of the protection-from-abuse order. The po-
lice were called both times: once by the neighbor and once by K.L.
Early in the morning of 7 September, Lucas knocked on K.L.’s bed-
room window while K.L. was sleeping. K.L. again called 911; Lucas
left the property.
Following K.L.’s 911 call, Officer Coleman was dispatched to
K.L.’s home. While Officer Coleman spoke with K.L., Lucas called
K.L.’s cell phone about fifteen times. When K.L. answered the
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22-12855 Opinion of the Court 5
phone at Officer Coleman’s direction, Officer Coleman heard Lu-
cas yelling, saying that he was coming over, and heard a single gun-
shot. Officer Coleman called for backup. Officers stopped Lucas’s
car about two houses away from K.L.’s home and took Lucas into
custody. Then, during a search of Lucas’s car, officers found two
guns, ammunition, a flashlight, and a pair of binoculars.
The government also called Lucas’s cellmate of two months,
Monroe Mahoney. Mahoney testified that Lucas talked frequently
about making K.L. “pay” for what she did to him, about his stalking
of K.L., and about his violent fantasies about harming K.L. At one
point, Mahoney told Lucas falsely that he could arrange to have
K.L. killed. Mahoney said Lucas expressed interest and began plan-
ning the details of the arranged killing: plans that included shoot-
ing K.L.’s son in front of her and then allowing Lucas to dismem-
ber K.L.’s body.
At the end of the sentencing hearing, the district court over-
ruled Lucas’s objection to the four-level enhancement and adopted
the PSI. Without asking the government for a recommended sen-
tence, the district court sentenced Lucas to 60 months’ imprison-
ment. The district court credited the testimony of the govern-
ment’s four witnesses and found Lucas’s testimony not credible.
Based on the hearing testimony, the district court was convinced
that Lucas intended to harm K.L.; and the court was concerned for
K.L.’s safety. The district court explained that the circumstances
involved in this case were more serious than the typical section
922(g)(8) case. The district court concluded that an upward
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6 Opinion of the Court 22-12855
variance was necessary to reflect the seriousness of the offense, to
provide adequate deterrence, and to protect K.L. from future
harm.
Lucas objected, arguing that the government had failed to
recommend a sentence at the low-end of the advisory guidelines
range and had, thus, breached the plea agreement. The district
court overruled the objection, stating that “[t]he government made
its recommendation” and that the court “knew what the govern-
ment’s recommendation was prior” to announcing the sentence.
The district court also said that the government had “complied
with not only the letter but the spirit of the plea agreement.”
Whether the government breached a plea agreement is a
question of law that we review de novo. See United States v. Copeland,
381 F.3d 1101, 1104 (11th Cir. 2004).
We construe a plea agreement “in light of the fact that it
constitutes a waiver of substantial constitutional rights requiring
that the defendant be adequately warned of the consequences of
the plea.” See United States v. Hunter, 835 F.3d 1320, 1324 (11th Cir.
2016). When the government makes a material promise that in-
duces a defendant to plead guilty, the government is bound by that
promise. Id.
“Whether the government violated the agreement is judged
according to the defendant’s reasonable understanding at the time
he entered his plea.” Id. “We apply an objective standard to ‘decide
whether the government’s actions are inconsistent’ with the
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22-12855 Opinion of the Court 7
defendant’s understanding of the plea agreement.” Id. (citations
omitted).
Contrary to Lucas’s assertion, the record demonstrates that
the government did actually recommend a sentence at the low end
of the guidelines range. The government did so in writing in its 12
August 2022 notice. The plea agreement contained no express lan-
guage about the method or manner of the government’s recom-
mendation on sentencing: only that the government recommend a
low-end sentence. The government’s written recommendation
satisfied the reasonable understanding of its obligation. That the
government did not also make an oral recommendation at the sen-
tencing hearing constitutes no breach of the plea agreement. The
district court also confirmed that it understood the government’s
recommended sentence and had taken that recommendation into
consideration.
Nor is there evidence that the government’s failure to offer
an oral recommendation was inconsistent with its obligations un-
der the plea agreement. At the sentencing hearing, the govern-
ment made no statements in favor of an upward variance or that
otherwise conflicted with its earlier recommendation for a low-end
sentence. The government failed to make an oral recommenda-
tion solely because the district court announced the sentence
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8 Opinion of the Court 22-12855
without first giving the government an opportunity to present ar-
gument about the appropriate sentence.2
We also reject Lucas’s argument that the government
breached the plea agreement by presenting damaging witness tes-
timony. First, the plea agreement contained no limitation on the
testimony and evidence that could be presented at the sentencing
hearing. The plea agreement provided expressly that both parties
were free to allocute fully.
Moreover, the government presented the testimony of three
of its witnesses -- K.L., Malone, and Officer Coleman -- in response
to Lucas’s own objection to the section 2K2.1 enhancement. Given
Lucas’s objection, the government bore the burden of presenting
evidence sufficient to support the enhancement: evidence that
would show that Lucas had possessed a gun in connection with an
aggravated-stalking offense. See United States v. Askew, 193 F.3d
1181, 1183 (11th Cir. 1999) (“The Government bears the burden of
establishing by a preponderance of the evidence the facts necessary
to support a sentencing enhancement.”). Nothing in the plea
agreement can be construed reasonably as limiting the govern-
ment’s ability to present evidence and argument about the proper
calculation of the advisory guidelines range.
The government also determined reasonably that it was ob-
ligated to make the district court aware of Lucas’s post-plea
2 On appeal, Lucas raises no substantive argument challenging the district
court’s hearing conduct or announcement of sentence.
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22-12855 Opinion of the Court 9
conduct by presenting Mahoney’s testimony. The government’s
decision was consistent with the terms of the plea agreement,
which required the government to provide information about Lu-
cas’s “conduct and background” that might inform the sentencing
decision.
Lucas has failed to show that the government breached the
terms of the plea agreement. We affirm.
AFFIRMED.
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