Case Information
*1 Before E ASTERBROOK R OVNER , W ILLIAMS , Circuit Judges .
W ILLIAMS Circuit Judge
. By almost all accounts Gale Ra chuy is career criminal. accumulated, over years, nearly convictions, mostly fraud. He man who has spent many years gaining people’s trust turn around betray them. most recent scheme, “purchased” six vehicles writing bad checks drawn four bank accounts knew were closed *2 had funds. indicted on five counts trans porting stolen vehicles across state lines, but pled guilty to one count in exchange for favorable recom mendation. exchange his guilty plea, the government that it would: (1) recommend that the calculate the loss amount based on the checks returned on the four bank accounts involved the purchase the stolen vehicles; (2) recommend five year prison sentence; (3) not oppose request the return his held by local authorities.
On appeal, raises number arguments. First, he asserts that the government breached the agreement by referencing his lengthy criminal history. But the govern ment did not breach the agreement because it had to refer ence history order to justify above Guideline range sentence. Second, he argues the gov ernment failed his loss amount based solely on checks used purchase vehicles charged superseding indictment. However, did not breach deal because it authorized, per agreement, include loss calculation relevant bad checks drawn on accounts used steal cars. Third, contends breached agreement opposing his request return his property. Here, too, did because it “oppose” his formal sense, simply reminded have power command local authorities release property. Fourth, claims abused discretion failing hold evidentiary hearing property. But required hold hearing *3 improperly asked exceed jurisdiction, properly dismissed complaint on jurisdic tional grounds. Finally, Rachuy asserts failed give him credit, pursuant U.S.S.G. § 5G1.3(b)(1), time served on sentence a related state conviction. However, Rachuy eligible sentenced § 5G1.3(b)(1) since he meet statute’s require ments. Because commit any errors, we affirm judgment.
I. BACKGROUND
Between April August 2010, Gale “pur chased” six cars writing bad checks drawn on accounts knew were either closed or had funds, then drove cars away. Ultimately, charged with five counts of transporting stolen vehicle across lines, violation U.S.C. § 2312.
On November entered into written plea where, exchange on one count transporting stolen vehicle, gov ernment made following promises:
4. … [T]o recommend calculate loss amount based checks returned on four bank accounts involved purchase vehi cles charged superseding indictment … 5. [T]o jointly impose five year imprisonment … 6. [N]ot oppose any currently held custody local authorities.
On same day, district court accepted Rachuy’s guilty plea.
While was represented counsel, filed pro se motion return of seized evidence and property with district court, asking order directing and local authorities return evidence they seized dur ing searches homes and automobiles. The filed its own motion, arguing Rachuy’s should denied because he: (1) was represented counsel; (2) cit ed authority support district court order local law enforcement agencies holding it; and (3) pursuing same relief without government’s opposition. The district government’s position denied motion.
On February held sentencing hearing which both sides made joint recommendation months’ imprisonment. Although this above Ra chuy’s advisory Guidelines range months, filed memorandum explaining upward variance warranted ex tensive criminal history likelihood recidivism.
At start hearing, calculated Guidelines range noted “that this defendant has almost convictions over some years, most which involve fraud … extraordinary history consider, much less comprehend.” dis trict then invited present posi tion sentencing. *5 5 ‐
The stated “echo[ed] what Court ha[d] already said, one be hard pressed find a defendant longer criminal history fraud than Mr. Rachuy. He’s perfect example why perhaps there should be career offender provision white collar defendants well.”
The then urged district court accept parties’ joint recommendation, and months’ imprisonment. The defense attorney reiterated parties’ recommendation, judge remarked, “I’m having substantial trouble arriving at months given your client’s behavior here … . My problem is, I’m looking years this same behavior. I’m just astounded criminal record.”
Ultimately, concluded Criminal History Category VI significantly underrepresented seri ousness history, and rejected parties’ rec ommendation. Instead based on parties’ joint recommendation, sentenced him months’ imprisonment based on determination “is epitome career offender” “[his crime is] just latest string fraudulent schemes spanning en tire adult life.” also stated that, “if federal law guidelines recognize[d] [the] status [of] white collar fraud, [Rachuy] could well Exhibit A.” Even though felt months’ imprisonment justified given conduct, settled months based on “the requests input counsel.” now ap peals.
6 12 1376
II. ANALYSIS
A. The Prosecution Did Not Breach Plea Agreement Rachuy maintains materially breached plea agreement three ways, namely by: (1) inducing district impose above recommended 60 months highlighting history; (2) failing upon loss amount at sentencing; (3) opposing pro se mo ‐ tion property. Because raise first two issues before sentencing, we review plain error. United States v. Winters , 695 F.3d 686, 689 (7th Cir. 2012). “Under plain error standard, we will reverse determination when we find: (1) error or defect; (2) clear or obvi ‐ ous; (3) affecting defendant’s substantial rights; (4) seriously impugning fairness, integrity, or public reputa tion judicial proceedings.” United States v. Goodwin , F.3d 511, (7th Cir. 2013) (internal quotations omitted). parties dispute whether raised third pur ported breach below, we do need decide mat ter loses even most generous standard.
This analyzes agreements using ordinary con tract principles. United States v. Schilling , F.3d 388, (7th Cir. 1998). When terms are unam biguous, we apply plain meaning those terms. United States v. O’Doherty F.3d (7th Cir. 2011). To suc ceed claim, defendant must show material breach; minor will warrant resentencing withdrawal guilty plea. Diaz Jimenez (7th 2010). *7 7 12 ‐ 1376 contends the government broke its promise to a sentence months’ imprisonment at sentencing by paying “lip service” to the joint recommenda ‐ tion, while simultaneously undermining it by citing lengthy criminal history. A prosecutor may agreement by making a sentencing recommendation pursu ‐ ant agreement, then attempting augment ultimate referencing aggravating circumstances defendant’s case. See Salazar F.3d (7th 2006). That what occurred here.
During sentencing hearing, government unques ‐ tionably mentioned Rachuy’s lengthy criminal history, even went so far as say “Rachuy’s perfect example why perhaps there should career offender provision white collar defendants well.” From transcript, it appears relied gov ernment’s representations imposing higher than recommended term imprisonment—the even par roted “career offender” characterization used government.
However, simply government referenced Ra chuy’s criminal history does mean government breached its him. Guidelines range months, government joint recommendation months upward departure had justify. primary means justify upward departure ref erence history. Moreover, honored obligation it never advocated higher sentence. Instead, urged impose month sentence. See Salazar 914–15 (finding substan *8 ‐ tial breach of plea agreement when the government made necessary recommendation “did a higher remind the judge that he need abide the agreement”). The government, on numerous occasions, rec ‐ ommended that Rachuy receive the upon ‐ month sentence. Therefore, the government’s conduct con stitute breach of the plea agreement.
In his second breach related claim, Rachuy contends that the failed recommend his loss amount be based solely on the checks used purchase the vehicles charged the superseding indictment, claim rests on mischaracterization plea agreement. The govern ment promised loss amount “based only on checks returned on four bank accounts involved purchase vehicles charged superseding dictment.” So, unambiguous terms this clause do mandate loss calculation be based on four checks upon charges were based. Instead, authorized include any rele vant bad checks from accounts Rachuy used steal cars. As result, both checks Rachuy issued steal cars charged indictment well as other checks issued from those same accounts rele vant conduct purposes. government’s loss calculation consistent terms plea agreement, cannot show breach provision, cannot prevail plain error review. third related claim, contends breached opposing pro se Federal Rule Criminal Procedure 41(g) seized property. argues de *9 vo review is appropriate because, before filing his motion for the return his property the district court, he made it clear in pro se motion in several letters the district that he would hold the government promise not oppose the motion. This, alleges, preserved the argu ment for appellate review because the district was alerted that opposition breach the plea agreement. As support, points First Circuit case, United States Gonczy which states “objection is suf ficiently raised long as brings the purported breach plea agreement the district attention.” 50, (1st 2004). government, other hand, ar gues plain error review appropriate standard be cause did not formally object level.
We do need decide standard applies cause loses either standard. In between parties, oppose Rachuy’s request for return property was held state local authorities. On December filed pro se motion federal evidence seized state local authorities. response, filed motion asserting there basis making claim federal because custody authorities proper forum court. Af ter considering government’s response, denied motion, partly jurisdictional reasons.
We conclude government’s response motion constitute “oppose” legal sense. Rather, *10 government simply alerted court to limits of its jurisdiction, this has said all parties should do. See Hart v. Terminex Int’l (7th 2003) (“We … emphasize this waste of federal judicial re sources delay of justice avoidable reiterate our admonitions to future litigants to meticulously review limits of federal jurisdiction”). Rachuy’s request not made in proper forum because he asked a federal district order state authorities turn over his property they seized in connection with state prosecution against him. This power federal district does not have authority exercise. See generally Smith Phillips U.S. (1982) (“Federal courts hold supervisory authori ty over state judicial proceedings.”). claim have merit if alleged
government opposed motions made state court. However, government did file motion opposi tion motion filed court. When made appropriate requests return court, lived up its end bargain oppose those requests. Because did oppose motion, simply alerted federal boundaries its jurisdiction (something encourages parties do), its Rachuy.
B. No Abuse Discretion Denying Re quest Evidentiary Hearing contends abused discre tion failed hold evidentiary hearing return property. We review denial Rule 41(g) seized *11 11 1376 for abuse discretion. Stevens v. United States , F.3d 502, (7th Cir. 2008). A abuses its discretion when it makes error law or when it makes clearly er roneous finding fact. United States v. Freeman , F.3d 673, 678–79 (7th Cir. 2011).
As we previously mentioned, motion properly dismissed jurisdictional grounds. When finds it lacks jurisdiction, it is improper for it proceed merits issue. “Without jurisdiction cannot proceed all any cause. Jurisdiction is power declare law, when ceases exist, func tion remaining announcing fact dismissing cause.” Steel Co. v. Citizens Better Env’t U.S. (1998) (internal quotation marks omitted). abuse discretion denying without holding evidentiary hearing there need accept evidence.
C. No Plain Error Regarding Credit Time Served asserts should have been sentenced under U.S.S.G. § 5G1.3(b) rather than § 5G1.3(c), given credit received related fraud convic tion Minnesota. We do agree. This review sentencing decisions proceeds two steps. Jackson (7th 2008). First, we ensure commit “significant procedural error,” including failing calculate, or improperly calculat ing, applicable Guidelines range, treating Guidelines mandatory, failing consider § 3553(a) factors. Id . Once convinced judge followed correct procedure, we then consider reasonableness sen tence. Id . conducting review, we will generally set *12 1376 aside factual findings underlying sentence only if they are clearly erroneous, review questions of law de novo. United States v. Bothun , F.3d 582, (7th Cir. 2005). However, because Rachuy not raise this issue below, we review decision plain error. United States v. Martin F.3d (7th Cir. 2012).
Because Minnesota conviction was not basis offense level increase, option of being sentenced under § 5G1.3(b) available him. Under § 5G1.3(c), sentencing judge has discretion impose sentence runs concurrently with prior undischarged term of imprisonment, here ordering Ra chuy’s federal sentence run concurrently Minne sota sentence. prefer be sentenced under § 5G1.3(b) because when provision applies, may adjust sentence “for period imprisonment already served undischarged term imprisonment if determines such period imprisonment will be credited federal Bureau Pris ons.” § 5G1.3(b)(1). A judge looks § 5G1.3(b) if “term imprisonment resulted from another offense is relevant conduct instant offense con viction … basis increase offense level instant offense.” Broadnax (7th 2008). Before defendant can benefit from section, must show both elements § 5G1.3(b) are met. Id . 701. eligible sentenced § 5G1.3(b)
because does meet both elements. satisfies first condition set out § 5G1.3(b) Minnesota conviction relevant conduct instant offense. *13 ‐ But, fails meet the second condition § 5G1.3(b) be cause his Minnesota conviction was not the basis for fense level increase. agreement, the the calcu late loss“ based only on checks returned on four bank accounts involved purchase vehicles charged superseding indictment.” The loss amount associated with these four accounts both state and federal cases taled $136,398.63. The subtracted $14,279.32— amount associated with Minnesota state conviction— from $136,398.63, arrive loss amount $122,119.71. This $122,119.71 figure was loss amount associated with federal case and Rachuy’s offense level was based.
Therefore, we conclude correctly calculated Guidelines range. Pursuant U.S.S.G. § 2B1.1(b)(1)(F), monetary losses between $120,000 $199,999 result level increase offense level. Even without $14,279.32 loss from Minnesota conviction, total loss amount was still above $120,000 threshold necessary trigger level increase. Ulti mately, even though conviction was included relevant conduct, received history points offense, loss associated used calculate offense level. Given conviction “the basis increase offense level” federal transporting stolen vehicle conviction, eligible sentenced under § 5G1.3(b) err him § 5G1.3(c).
III. CONCLUSION judgment A FFIRMED .