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US Court of Appeals
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
                                                     No. 98-30267
v.
                                                     D.C. No.
                                                     CR-98-00053-1-EJL
REX ALAN LAWTON III,
Defendant-Appellant.


UNITED STATES OF AMERICA,
                                                     No. 98-30283
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CR-98-00053-EJL
MARGARET MARIE BAHEZA,
                                                     OPINION
Defendant-Appellant.


Appeals from the United States District Court
for the District of Idaho
Edward J. Lodge, Chief Judge, Presiding


Argued and Submitted
July 13, 1999--Seattle, Washington


Filed September 27, 1999

Before: Alfred T. Goodwin, Thomas M. Reavley,1 and
M. Margaret McKeown, Circuit Judges.


Opinion by Judge Goodwin
_________________________________________________________________
1 Honorable Thomas M. Reavley, Senior Circuit Judge for the Fifth Cir-
cuit, sitting by designation.


                               12201




SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1999 by West Group.
_________________________________________________________________


Criminal Law and Procedure/Sentencing

The court of appeals vacated sentences and remanded for
resentencing. The court held that uncharged or dismissed con-
duct, in the context of a plea agreement, is an illegal basis for
a departure at sentencing.


Appellants Rex Lawton and Margaret Baheza, enrolled
members of the Coeur d'Alene Indian tribe and residents of
the Coeur d'Alene reservation, brought their infant to a hospi-
tal emergency room with numerous serious injuries. The doc-
tors believed the injuries were consistent with child abuse.


Federal Bureau of Investigation agents interviewed Lawton
and Baheza, Lawton denied abusing the child and provided
explanations for the baby's injuries that were inconsistent
with medical opinion. Baheza also gave answers that a jury
could have found to be false. In a second interview, Lawton
admitted he had lied to the FBI, then provided different, but
equally dubious explanations for the baby's injuries.


A week later, the baby was again brought to the hospital
with serious injuries. Initially, Baheza told the FBI that the
baby was injured when she was dropped accidentally in the
shower. Baheza then admitted that the story was not true.
Lawton again admitted to the FBI that the earlier stories had
been untrue. His new explanations contradicted medical opin-
ion. In a third interview, Lawton provided the FBI with more
explanations inconsistent with medical opinion.


In spite of the circumstantial evidence, prosecutors doubted
that they could prove either parent's individual culpability
beyond a reasonable doubt. Lawton and Baheza were charged
with two counts of making false statements to the FBI, one
count of accessory after the fact to an assault, and one count


                               12202


of misprision of the felony of assault. Lawton and Baheza
never admitted that their child had been abused.


In plea bargain, Lawton and Baheza entered guilty pleas to
the false statement counts in exchange, the government dis-
missed the misprision and accessory charges.


Lawton and Baheza's base offense level for false state-
ments was 6. The court stated the evidence of serious child
abuse took this case out of the heartland of false statement
cases. The court concluded that an upward departure was
encouraged by the Guidelines for conduct that resulted in
physical injury and unusually heinous, cruel, or brutal con-
duct. The court decided to depart upward by applying the
guideline for aggravated assault. Under that Guideline, the
defendants' base offense level was 15. The court added 5 for
the baby's very serious bodily injuries and subtracted 3 for
acceptance of responsibility resulting in an adjusted offense
level of 17.


Lawton and Baheza did not object to the district court's
substantial upward departure. The district court sentenced
Lawton to 30 months imprisonment and Baheza to 24 months
imprisonment.


Lawton and Baheza appealed their sentences.

The government argues that any error did not affect Lawton
and Baheza's' substantial rights or the fairness of the proceed-
ings because the district court would have applied the aggra-
vated assault guideline. The government contends, however,
that the district court was required to use the aggravated
assault guideline because of the stipulations in the plea agree-
ments. The government finally argues that the district court
could have imposed the same sentence by considering the
uncharged and dismissed conduct under S 1B1.3.


[1] Courts have considerable discretion in Guidelines sen-
tencing to depart upward or downward, and the decision to do


                               12203


so is reviewed only for an abuse of discretion. The use of an
illegal factor, however, is by definition an abuse of discretion.
Uncharged or dismissed conduct, in the context of a plea
agreement, is an illegal basis for a departure. The district
court abused its discretion.


[2] Sentencing Guidelines S 5K2.0 authorizes upward
departures only for aggravating or mitigating circumstance of
a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission. Upward departures are
intended to account only for factors that make a case atypical.
In the absence of a plea agreement, suspected child abuse
might indeed mark an atypical case of false statements. In the
context of a plea bargain, however, dismissed charges or
uncharged conduct are a typical occurrence. The Sentencing
Guidelines expressly take such conduct into consideration.
Under the Guidelines, a court may accept a plea agreement
only if it determines that the remaining charges adequately
reflect the seriousness of the actual offense behavior. If a dis-
trict court believes the charges included in a plea agreement
are insufficient, it is required to reject the plea agreement.
This procedure adequately takes into consideration conduct
dismissed or not charged as part of a plea bargain.


[3] Section 1B1.4 provides that when imposing a departure
the court may consider any information concerning the back-
ground, character and conduct of the defendant, unless other-
wise prohibited by law. However, the provision does not
expand the information that can be considered in imposing
upward departures. Only information that does not enter into
the determination of the applicable guideline sentencing range
may be considered in determining departures. Conduct dis-
missed or uncharged as part of a plea bargain does enter into
the determination of the guidelines range throughS 6B1.2(a).
The guidelines range is only based upon the charges included
in a plea agreement if the plea agreement is approved by the
district court. The plea agreement is only approved if the dis-


                               12204


trict court first determines the agreement reflects the serious-
ness of the dismissed or uncharged conduct.


[4] Not only are such upward departures unauthorized, but
they are also patently unfair because they hold a defendant to
his end of the bargain, the guilty plea, while simultaneously
denying him the benefits promised him from the bargain. Sec-
tion 6B1.2(a)'s requirement that the court accept or reject plea
bargains in total strikes the correct balance between the
court's need to respect the parties' evaluation of the risks of
trial with its need to monitor the contents of bargains.


[5] In accepting Lawton and Baheza's plea agreement, the
district court implicitly found it fair. The district court was not
then authorized to depart upward by applying the guideline
for aggravated assault to account for the suspected real
offense conduct. If the district court felt the plea bargain did
not reflect the seriousness of Lawton and Baheza's conduct,
the correct remedy under the Guidelines was rejection of the
plea agreement, not an upward departure.


[6] A sentencing judge must consider only conduct
included in the plea agreement when selecting a guideline
under S 1B1.2. If more serious conduct is specifically estab-
lished by stipulations in a plea, then S 1B1.2(a) requires the
district court to consider that conduct in selecting a guideline.
The facts stipulated in Lawton and Baheza's plea agreement
did not specifically establish aggravated assault. They estab-
lished only mendacity and a failed cover-up.


[7] Lawton and Baheza pled guilty to lying to the FBI.
They did not admit that their child had been abused. Sus-
pected lies cannot specifically establish more serious conduct
justifying a three or four-foul increase in sentence. [8] The
district court could not have used the aggravated assault
guideline under the plea stipulations prong of S 1B1.2. Law-
ton and Baheza's substantial rights and the fairness of the pro-
ceeding were affected by the unwarranted upward departure.


                               12205


[9] The district court may consider dismissed, uncharged,
or even acquitted conduct as relevant conduct underS 1B1.3.
Even if the district court finds the child abuse to be relevant
conduct, still the court may not use the guideline for aggra-
vated assault. Relevant conduct may not be used to select a
guideline under S 1B1.2. Relevant conduct may be considered
only in the imposition of guidelines enhancements and adjust-
ments, once a guideline has been selected.


_________________________________________________________________

COUNSEL

Stephen R. Hormel, Federal Public Defenders, and Christina
Gerrish, Student, Spokane, Washington, for defendant-
appellant Lawton; Steven Mahaffy, Moscow, Idaho, for
defendant-appellant Baheza.


James M. Peters, Assistant United States Attorney, and Lind-
say Messick, Extern, Boise, Idaho, for the plaintiff-appellee.


_________________________________________________________________

OPINION

GOODWIN, Circuit Judge:

This case requires us to determine the proper purposes for
which a judge under the Sentencing Guidelines can consider
real offense conduct outside the scope of the charges included
in a plea agreement. We recognize that the Guidelines are
premised upon a delicate balance between real offense and
charge offense sentencing. See USSG S 1A4(a), p.s. Maintain-
ing this balance is particularly difficult, and particularly
important, in the context of plea bargains.


Prosecutors suspected either Lawton or Baheza or both had
abused their infant daughter, but they doubted they could
prove at trial specifically who was responsible for the abuse.


                               12206


The government thus chose to charge the defendants with
three lesser crimes and to accept a plea agreement in which
Lawton and Baheza pled guilty to only one of the lesser
crimes. The district court accepted the agreement but substan-
tially ignored it in pronouncing its sentence. The court stated
it was departing upward to sentence the couple under the
guideline for aggravated assault, the suspected but uncharged
real offense conduct.


We vacate the sentences and remand for sentencing under
the guideline for the crime of conviction. The court deprived
Lawton and Baheza of the benefit of their plea bargain. This
was plain error, which was not waived by the failure of coun-
sel to object at the time of sentencing. We appreciate the trial
court's awareness of the cruelty of the underlying conduct,
but that was not the crime for which the defendants pled
guilty.


I. Factual & Procedural Background

Lawton and Baheza are the unmarried parents of an infant
girl born March 25, 1997. All three live on the Coeur d'Alene
Indian reservation. Baheza is an enrolled member of the
Coeur d'Alene tribe. On May 7, the defendants brought the
six-week old baby to the emergency room of Kootenai Medi-
cal Center. Doctors determined the baby had numerous seri-
ous injuries including bruises, a torn frenulum, a fractured
tibia, and a depressed fracture of her skull. The doctors
believed the injuries were consistent with child abuse. The
fractured tibia in particular was a "classic abuse X-ray
finding." FBI agents interviewed the defendants after the hos-
pital reported the suspected child battery. Lawton denied
abusing the child and provided the FBI various explanations
for the baby's injuries. The explanations were inconsistent
with medical opinion. Baheza also gave answers that a jury
could have found to be false. In a second interview, Lawton
admitted that he had lied to the FBI. He then provided differ-
ent, but equally dubious, explanations for the baby's injuries.


                               12207


A week later, the child was again brought to the hospital
with serious injuries. This time doctors determined she had
multiple fractured ribs and a fractured clavicle. X-rays also
revealed prior healed fractures in the baby's ribs and thigh.
The next day, Baheza was interviewed by the FBI. She stated
that some of the baby's injuries resulted from being acciden-
tally dropped in the shower. She then admitted the story was
not true. Soon afterwards, Lawton again admitted to the FBI
that his earlier stories had been untrue. He provided new
explanations for the baby's numerous injuries. These stories
also contradicted medical opinion. In a third interview,
Baheza provided the FBI with yet more explanations inconsis-
tent with medical opinion.


In spite of the circumstantial evidence that one or both of
the defendants had abused the infant, prosecutors doubted
they could prove either parent's individual culpability beyond
a reasonable doubt. Therefore, the defendants were each
charged with two counts of making false statements to the
FBI, 18 U.S.C. S 1001(a)(2), one count of accessory after the
fact to assault, 18 U.S.C. S 3, and one count of misprision of
the felony of assault, 18 U.S.C. S 4. The parties then reached
a plea agreement. The defendants, with advice of counsel and
in a Rule 11 hearing, entered their guilty pleas to the S 1001
counts; in exchange, the government dismissed the accessory
and misprision charges. The plea agreement contained a reci-
tation of most of the above facts. Though the defendants
admitted in the plea agreement and at sentencing that some of
the explanations they had provided the FBI were false, they
continued to deny battering the child and did not admit even
that their daughter had been abused.


The defendants' base offense level for false statements was
6. See USSG S 2F1.1(a). The court stated the evidence of seri-
ous child abuse took this case out of the heartland of false
statement cases. The court concluded that an upward depar-
ture was encouraged by Guidelines SS 5K2.2 (conduct
resulted in physical injury) and 5K2.8 (unusually heinous,


                               12208


cruel, or brutal conduct). The court decided to depart upward
by applying the guideline for aggravated assault,S 2A2.2.
Under S 2A2.2(a), the defendants' base offense level was 15.
The court added 5 for the baby's very serious bodily injuries
and subtracted 3 for acceptance of responsibility 2 resulting in
an adjusted offense level of 17. Regrettably, trial counsel
failed to object to the district court's substantial upward
departure. Given their respective criminal history categories,
the upward departure increased Lawton's sentencing range
from 2-8 months to 30-37 months and Baheza's range from
0-6 months to 24-30 months. The district court sentenced
Lawton to 30 months imprisonment and Baheza to 24 months
imprisonment.


II. Upward Departures Under USSG S 5K2.0
in the Context of Plea Agreements


[1] Inasmuch as Lawton and Baheza argue the sentencing
court was not permitted to upward depart at all in this case,
their argument is nonsense. Courts have considerable discre-
tion in Guidelines sentencing to depart upward or downward,
and decision to do so is reviewed only for an abuse of discre-
tion. See Koon v. United States, 518 U.S. 81, 100 (1996). The
use of an illegal factor, however, is by definition an abuse of
discretion. See id; United States v. Sanchez-Rodriguez, 161
F.3d 556, 559 (9th Cir. 1998) (en banc). Our cases make clear
that uncharged or dismissed conduct, in the context of a plea
agreement, is an illegal basis for a departure. See United
States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990);
United States v. Faulkner, 952 F.2d 1066 (9th Cir. 1991).3 We
conclude the district court here abused its discretion.
_________________________________________________________________
2 As the court noted, though the defendants accepted responsibility for
lying to the FBI, they did not accept responsibility for assaulting their

daughter.
3 We recognize that the circuits are split on this issue. Compare United
States v. Harris, 70 F.3d 1001, 1004 (8th Cir. 1995) (following Castro-
Cervantes and Faulkner) with United States v. Kim, 896 F.2d 678, 684 (2d
Cir. 1990); United States v. Baird, 109 F.3d 856 (3rd Cir. 1997); United
States v. Barber, 119 F.3d 276, 284 (4th Cir. 1997); United States v.
Ashburn, 38 F.3d 803, 807 (5th Cir. 1994); United States v. Zamarripa,
905 F.2d 337, 341 (10th Cir. 1990).


                               12209


In Castro-Cervantes, the defendant pled guilty to two
counts of robbery and admitted committing two more
uncharged robberies in the plea agreement. The government
agreed to dismiss five robbery counts. At sentencing, the dis-
trict court departed upward to account for the five dismissed
robberies. We reversed and remanded the sentence, holding
that the district court's upward departure violated USSG
S 6B1.2(a). See Castro-Cervantes, 927 F.2d at 1080-82. Simi-
larly, in Faulkner, the defendant pled guilty to five robbery
counts in exchange for the government dismissing three rob-
bery counts and agreeing not to charge five other robberies.
When the court departed upward to account for the eight sus-
pected robberies outside the plea agreement, we again
reversed and remanded the sentence. See Faulkner , 952 F.2d
at 1068-71.


[2] Our decisions in Castro-Cervantes and Faulkner are
based on the plain language of SS 5K2.0 and 6B1.2(a) of the
Guidelines. Section 5K2.0 authorizes upward departures only
for " `aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the Sen-
tencing Commission . . . .' " USSG S 5K2.0 (quoting 18
U.S.C. S 3553(b)). Upward departures are intended to account
only for factors that make a case atypical. See Koon, 518 U.S.
at 94. In the absence of a plea agreement, suspected child
abuse might indeed mark an atypical case of false statements.
In the context of a plea bargain, however, dismissed charges
or uncharged conduct are a typical, even routine, occurrence.
Not surprisingly, the Sentencing Guidelines expressly take
such conduct into consideration. A court may accept a plea
agreement only if it determines "that the remaining charges
adequately reflect the seriousness of the actual offense
behavior." USSG S 6B1.2(a). If a district court believes the
charges included in a plea agreement are insufficient,

S 6B1.2(a) requires the court to reject the plea agreement.
This procedure adequately takes into consideration conduct
dismissed or not charged as part of a plea bargain. There is
no need for departures under S 5K2.0.


                               12210


[3] The language of S 1B1.4 does not change our analysis.
See Faulkner, 952 F.2d at 1070-71. That section does provide
that when imposing a departure "the court may consider,
without limitation, any information concerning the back-
ground, character and conduct of the defendant, unless other-
wise prohibited by law." USSG S 1B1.4. The commentary
explains, however, that the provision does not  expand the
information which can be considered in imposing upward
departures. Only "information that does not enter into the
determination of the applicable guideline sentencing range
may be considered in determining" departures. Id., comment.
(backg'd.). Conduct dismissed or uncharged as part of a plea
bargain does enter into the determination of the guidelines
range through S 6B1.2(a). The guidelines range is only based
upon the charges included in a plea agreement if the plea
agreement is approved by the district court. The plea agree-
ment is only approved if the district court first determines the
agreement reflects the seriousness of the dismissed or

uncharged conduct.

Two basic canons of statutory construction provide further
support for our conclusion that conduct dismissed or
uncharged as part of a plea bargain may not be the basis for
an upward departure. First, S 6B1.2(a) explicitly provides that
such conduct may be considered "Relevant Conduct " under
S 1B1.3. We find it significant that the Sentencing Commis-
sion chose not to include a similar provision regarding
upward departures under S 1B1.4. See Longview Fibre Co. v.
Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992) (explain-
ing interpretive principle of "expressio unius est exclusio
alterius"). Second, if a district court may sentence a defendant
for the real offense conduct through the guise of aS 5K2.0
upward departure, regardless of the plea bargain, then the
determination required by S 6B1.2(a) is pointless. We will not
ascribe to the Sentencing Commission the intent to render a
section of the Guidelines mere surplusage. See United States
v. Fiorillo, _______ F.3d _______, _______, 1999 WL 493238, *11 (9th

Cir. 1999) ("One provision of a statute should not be inter-

                               12211


preted in a manner that renders other sections of the same
statute `inconsistent, meaningless or superfluous.' "); North-
west Forest Resource Council v. Glickman, 82 F.3d 825, 834
(9th Cir. 1996) ("We have long followed the principle that
[s]tatutes should not be construed to make surplusage of any
provision.") (internal quotation marks omitted).


[4] Not only are such upward departures unauthorized, but
they are also "patently unfair" because they hold a defendant
to his end of the bargain, the guilty plea, "while simulta-
neously denying him the benefits promised him from the
bargain." Faulkner, 952 F.2d at 1070. Section 6B1.2(a)'s
requirement that the court accept or reject plea bargains in
toto strikes the correct balance between the court's need to
respect the parties' evaluation of the risks of trial with its need
to monitor the contents of bargains. Cf. Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (When a district
court approves a class action settlement under FRCP 23,
"[t]he settlement must stand or fall in its entirety."). Courts
may not redraft plea agreements to suit their own perception
of the equities. They should instead reject faulty agreements,
sending the parties either back to the bargaining table or to
trial.


We have repeatedly expressed our concern that if judges
begin withholding " `the benefits of the plea bargain to which
defendants are entitled,' " the plea bargaining process might
break down and " `the consequences for both the criminal and
civil justice system might well be disastrous.'  " Faulkner, 952
F.2d at 1070 (quoting United States v. Enriquez-Munoz, 906
F.2d 1356, 1359 (9th Cir. 1990)). Courts have long recog-
nized that settlement agreements are motivated primarily by
the desire to avoid the risks of trial. See Rude v. Westcott, 130
U.S. 152, 164 (1889) ("The avoidance of the risk and expense
of litigation will always be a potential motive for a settle-
ment."). In departing upward to account for uncharged or dis-
missed conduct, a district court abrogates the parties' ability
to control the risks of trial through agreement.


                               12212


In this case, for example, the government admits it proba-
bly could not meet its burden of proof on the assault charges.
The decision to accept the plea bargain implies the govern-
ment may have also doubted its ability to prove the accessory
and misprision charges. Rather than risk acquittals, prosecu-
tors chose to accept guilty pleas on the false statement
charges, the least serious charged offense. Compare USSG
S 2F1.1 with SS 2X3.1 and 2X4.1. The defendants agreed in
order to avoid the risk of conviction on more serious charges.
While the government avoided acquittals, the parties were
unable to control through agreement the risks that Lawton and
Baheza would face from trial. They were sentenced just as if
they had been convicted of aggravated assault. Without the
ability to control these risks, defendants have no incentive to
settle. We doubt Lawton and Baheza would have agreed to
any plea bargain if they had known the district court could,
nevertheless, sentence them for aggravated assault.


We wish to emphasize the narrowness of our holding.
There is no blanket prohibition on upward departures when
sentencing under a plea agreement. In fact, in both Faulkner
and Castro-Cervantes, we considered the merits of upward
departures for conduct related to the offenses of conviction.
See Faulkner, 952 F.2d at 1073 (considering departure for
possession of toy gun); Castro-Cervantes, 927 F.2d at 1081
(approving departure for sophistication of robbery). The
Guidelines prohibit only upward departures which sentence a
defendant as if he had pled guilty to uncharged or dismissed
conduct. In this case, the Guidelines might encourage a rea-
sonable departure under S 2F1.1, comment. (n. 11(b)), but the
sentencing court must bear in mind that the defendants are not
being sentenced for the uncharged assault but for the gravity
of the false statements. There are, moreover, other phases of
the sentencing calculation in which a district court may con-
sider uncharged or dismissed conduct. See USSG S 1B1.4,
comment. (backg'd.) (in selecting a sentence within an appli-

cable range); United States v. Fine, 975 F.2d 596, 602 (9th
Cir. 1992) (en banc) (as relevant conduct underS 1B1.3);


                               12213


infra Part V (same); United States v. Smith , 991 F.2d 1468,
1470-73 (9th Cir. 1993) (in calculating criminal history cate-
gory enhancements under S 4A1.1(d)-(e)).


[5] We hold that in accepting, underS 6B1.2(a), Lawton
and Baheza's agreement to plead guilty only to making false
statements, the district court "implicitly f[ound] it fair."
Faulkner, 952 F.2d at 1070. The district court was not then
authorized to depart upward under S 5K2.0 by applying the
guideline for aggravated assault, to account for the suspected
real offense conduct. If the district court felt the plea bargain
did not reflect the seriousness of Lawton and Baheza's con-
duct, the correct remedy under the Guidelines was rejection
of the plea agreement, not an upward departure. See Castro-
Cervantes, 927 F.2d at 1082.


The Presentence Report contributed to the confusion by
recommending that the court consider an upward departure
"for a vulnerable victim," apparently forgetting that the victim
of the crime to which the defendants pled guilty was the FBI.
The victim of the crime being investigated was the six weeks
old baby girl.


III. Plain Error

Because trial counsel failed to object to the upward depar-
ture, the plain error standard applies. The sentence should be
reversed only if the error (1) was "clear or obvious", (2)
affected substantial rights, and (3) seriously affected the fair-
ness, integrity, or public reputation of the judicial proceed-
ings. See United States v. Randall, 162 F.3d 557, 561 (9th Cir.
1998), cert. denied, 119 S.Ct. 1480 (1999). As discussed
above, the upward departure was in violation of well-
established Ninth Circuit precedent, so the error was clear.


The government argues that any error did not affect the
defendants' substantial rights or the fairness of the proceed-
ings because the district court would have applied the aggra-


                               12214


vated assault guideline even if it had followed Castro-
Cervantes and Faulkner. The government cites the procedures
for selecting a guideline under S 1B1.2(a) and the definition
of relevant conduct under S 1B1.3. After analyzing the appli-
cability of SS 1B1.2(a) and 1B1.3, we disagree.


IV. "Plea Stipulations" Under USSGS 1B1.2(a)

[6] The government acknowledges that a sentencing judge
must consider only conduct included in the plea agreement
when selecting a guideline under S 1B1.2. Cf. United States
v. Crawford, _______ F.3d _______, _______, 1999 WL 556942 (9th Cir.
1999). The government contends, however, that the district
court was required to use the aggravated assault guideline
because of the stipulations in the plea agreements. If more
serious conduct is "specifically established" by stipulations in
a plea, then S 1B1.2(a) does require the district court to con-
sider that conduct in selecting a guideline. See United States
v. Saldana, 12 F.3d 160 (9th Cir. 1993) (distinguishing
Castro-Cervantes and Faulkner and requiring district court to
consider under S 1B1.2(a) more serious conduct specifically
established by plea agreement). The problem with the govern-
ment's argument is that the facts stipulated in the plea agree-
ments do not specifically establish aggravated assault. They
establish only mendacity and a failed cover-up.


The interpretation of stipulations is, like the interpretation
of contracts, an issue of law reviewed de novo. See Braxton
v. United States, 500 U.S. 344, 350 (1991). In Braxton, the
Supreme Court held that a stipulation which "supports two
reasonable readings," one of which is inconsistent with guilt,
is not "a stipulation that `specifically establishes' " a crime
under S 1B1.2(a). Id at 351. In his plea, Braxton admitted to
shooting at the door as U.S. Marshals were entering his apart-
ment. The district court determined the admission established
attempted murder and applied the guideline for murder. A
unanimous Supreme Court, per Justice Scalia, reversed the
sentence. Because the plea stipulation was as consistent with


                               12215


an intent to frighten as an intent to kill, attempted murder had
not been "specifically established." See id. at 350-51.


[7] Nothing in these plea agreements specifically estab-
lishes that either defendant committed aggravated assault or
even misprision of aggravated assault. The government tries
to claim that aggravated assault is established because Baheza
admitted to punching her daughter while acting out a dream
and Lawton admitted to recklessly jumping on a sofa on
which the child lay. Even a cursory reading of the plea agree-
ment makes clear that it does not establish these facts; it only
establishes that the defendants provided these explanations to
the FBI. They did not stipulate to the truth but the falsehood
of the stories. Lawton and Baheza pled guilty to lying to the
FBI. The doctors, the court, the FBI, and the prosecutors all
believed the stories to be untrue. The defendants did not even
admit that their child had been abused. Suspected lies cannot
"specifically establish" more serious conduct justifying a
three or four-fold increase in a sentence.


[8] The district court could not have used the aggravated
assault guideline under the plea stipulations prong of S 1B1.2.
The defendants' substantial rights and the fairness of the pro-
ceeding were affected by the unwarranted upward departure.


V. "Relevant Conduct" Under USSG S 1B1.3.

[9] The government finally argues that the district court
could have imposed the same sentence by considering the
uncharged and dismissed conduct under S 1B1.3. The district
court may consider dismissed, uncharged, or even acquitted
conduct as relevant conduct under USSG S 1B1.3. See USSG
S 6B1.2(a) (providing plea agreements "shall not preclude"
dismissed or uncharged conduct "from being considered
under the provisions of S 1B1.3"); United States v. Watts, 519
U.S. 148 (1997); United States v. Fine, 975 F.2d 596, 602
(9th Cir. 1992) (en banc). Section 1B1.3 is not a carte blanche
for the district court to consider whatever conduct it pleases,


                               12216


however. Before the court may consider the allegations of
child abuse relevant conduct in its sentencing, it must deter-
mine that that conduct is relevant under the definition in
S 1B1.3(a)(1).4 Even if the district court finds the child abuse
to be relevant conduct, still the court may not use the guide-
line for aggravated assault. Relevant conduct may not be used
to select a guideline under S 1B1.2. See Crawford, _______ F.3d
at _______, 1999 WL 556942 (9th Cir. 1999). Relevant conduct
may be considered only in the imposition of guidelines
enhancements and adjustments, once a guideline has been
selected. See USSG S 1B1.3(a). In this case, for example, the
enhancement in S 2F1.1(b)(6)(A) might apply if the offense
involved "the conscious or reckless risk of serious bodily
injury."


That the uncharged conduct may be considered in imposing
enhancements and adjustments does not defeat defendants'
claims of prejudice. It is not at all clear that on remand the
district court will again impose an offense level of 17 using
the guideline for false statements, S 2F1.1, and applying the
appropriate enhancements and adjustments.


VI. Conclusion

No alternative sentencing rubric would have authorized the
district judge to use the aggravated assault guideline. We can-
not be certain the application of the guideline for false state-
ments and the appropriate enhancements, adjustments, and
departures would have resulted in the same offense level. We
conclude the erroneous four-fold upward departure affected
Lawton and Baheza's substantial rights and the fairness of the
proceedings. We must vacate and remand the sentence in light
of this plain error.
_________________________________________________________________
4 Section 1B1.3(a)(2) is not relevant since the aggravated assault is not
grouped together for sentencing purposes with the false statements under
S 3D1.2(d).


                               12217


On remand, the suspected real offense conduct, i.e., the
uncharged and dismissed conduct, may not be considered in
selecting a guideline under S 1B1.2. The court must apply the
guideline suggested by the plea agreement. The district court
may consider any conduct within the definition inS 1B1.3(a)
in imposing enhancements and adjustments. Upward depar-
tures may not be used to punish the defendants for uncharged
or dismissed conduct, but there is no blanket prohibition on
upward departures. The court is, of course, free to select any
sentence within an appropriate guideline range. See S 1B1.4.
Finally, we note that if any disputed fact has a
"disproportionate impact" on the sentence, the fact must be
established by clear and convincing evidence. See United
States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999).


VACATED AND REMANDED.

                               12218


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