APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA*fn1 (D.C. No. 5:08-CR-00055-F-1).
The opinion of the court was delivered by: Hartz, Circuit Judge.
Before HARTZ, McKAY, and O'BRIEN, Circuit Judges.
Roy Dean Bullcoming was indicted in the United States District Court for the Western District of Oklahoma on seven counts of embezzlement and theft from Indian tribal organizations, see 18 U.S.C. § 1163, and eight counts of theft from gaming establishments on Indian lands, see id. § 1167. He entered into a plea agreement in which he agreed to plead guilty to one count of embezzlement. In exchange, the government dropped the other 14 counts and entered into several stipulations relating to restitution and his offense level under the United States Sentencing Guidelines (USSG). At sentencing, the government-without any objection from Mr. Bullcoming-presented testimony from a witness who claimed that Mr. Bullcoming had shown no remorse for his actions, and it also argued in favor of an upward variance, suggesting that it could probably never prove the full amount of money he took. The district court varied upward from the guidelines range, sentencing him to 36 months' imprisonment. On appeal Mr. Bullcoming contends that the government breached the plea agreement and that the court abused its discretion in varying upward. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
A. The Offense and Other Related Conduct
Mr. Bullcoming, a member of the Cheyenne-Arapahoe Tribe, was an elected member of its Business Committee, representing Cheyenne District One. He was entrusted with administering his district's share of the net gaming revenue generated by the tribe's two Lucky Star casinos. The district's share is to be used to finance various tribal programs and to provide services for tribal members, such as child welfare. In addition, a Business Committee member may dole out "Emergency Assistance" funds, which are intended to meet the emergency needs of individual tribal members.
Mr. Bullcoming did not follow these rules. Several times, he used the tribe's funds for his personal use. Counts 1 through 7 of the indictment involved his receipt of the following sums of tribal money: (1) checks totaling $10,000 in "Emergency Assistance" money to purchase a 2001 Pontiac Grand Am, titled in his name and used as a personal vehicle (counts 1 and 2); (2) two checks totaling $4,589.07 to make monthly payments in 2004 for a 2003 Toyota Tundra truck, also titled in his own name and used as a personal vehicle (counts 3 and 4); (3) a check for $2,108.50used for repairs in 2004 to his Tundra (count 5); and (4) two checks totaling $8,995 to finance the 2004 purchase of a 1998 Dodge Caravan as a gift to Mildred K. Black, his former fiancée (counts 6 and 7).
Furthermore, between 2002 and 2007 Mr. Bullcoming took $21,056.89 from the tribal casinos by making false claims for travel-related expenses (such as travel, per diem, and registration fees) for gaming-industry training conferences and trade shows that he never attended. This misconduct was the basis for counts 8 through 15 of the indictment. In addition, uncharged, related misconduct admitted by Mr. Bullcoming included (1) 54 wire transfers of $11,095 to his niece Tamara Beaver, and (2) some 60 other unauthorized disbursements of $16,035 in tribal funds, including "Emergency Assistance" funds, primarily to himself and his daughter.
Mr. Bullcoming was indicted on February 20, 2008, and entered into a plea agreement on July 23. Under the terms of the agreement, Mr. Bullcoming would plead guilty to count 1 of the indictment (relating to the purchase of his 2001 Pontiac Grand Am). In return, the government would drop the other charges and agree not to charge him with any other crimes relating to his theft or embezzlement during 2002 through January 1, 2005. The agreement contained two stipulations regarding the total losses from Mr. Bullcoming's misconduct. The stipulation regarding losses for purposes of restitution stated:
[T]he parties further agree that, as part of the sentence resulting from defendant's plea, the Court will enter an order of restitution to all victims of the defendant's relevant conduct as determined by reference to the United States Sentencing Guidelines, including, but not limited to, losses caused by defendant's relevant conduct within the meaning of USSG § 1B1.3 as follows, an additional $90,350.75 unlawfully taken from Southwest Hotel and Casino Corporation, as agent for Lucky Star Casinos, and/or Cheyenne-Arapaho Tribes as referenced in Counts 2 through 15 of the Indictment and the amounts derived from other instances of abstracting, embezzlement, theft, willful misapplication, taking and conversion to his use or that of another as detailed in the three 404(b) notices filed in this action; for a total of $95,350.75.
R., Vol. 1 at 30--31. And the stipulation for purposes of calculating his offense level under the guidelines stated:
Based upon the information that is known to the parties on the date this agreement is executed, they expect to take, but are not limited to, the following positions at sentencing: The parties hereby stipulate that the total amount of loss that should be attributed to this defendant for guideline calculation purposes is $95,350.75 and an order ...