Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:13-cr-00130--Janet T. Neff, District Judge.
Barry A. Spevack, MONICO & SPEVACK, Chicago, Illinois, for Appellant.
Clay Stiffler, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.
Before: SUTTON, GRIFFIN, and WHITE, Circuit Judges.
SUTTON, Circuit Judge.
Freeman " Buck" Reed pled guilty to conning investors out of $1.3 million with false promises of buried treasure and received a seven-year sentence for the fraud. On appeal, Reed claims that federal prosecutors made a false promise of their own by failing to recommend a three-year sentence in exchange for Reed's guilty plea. Because the government eventually made this recommendation and because the government otherwise lived up to its end of the plea bargain, we affirm.
Buck Reed was a self-employed " Multi-Level Marketing" guru who sold an " antioxidant rich whole food puree" called " ViaViente." R. 113 ¶ 20; R. 109 at 2. He sold fruit juice, in other words, and on top of that he offered training sessions to teach other marketers how to replicate his success. To recruit trainees, Reed advertised himself as a self-made millionaire with large houses, luxury cars, boats, and extended vacations--all of which he financed with precarious levels of credit.
Reed's relationship with ViaViente did not pan out, and he and its producer each went their separate ways. Desperate for money and eager to preserve the lifestyle to which he had become accustomed, Reed came up with a new idea. He told several potential investors that he had access to a secret dig site in the Philippines containing gold bars buried by the Japanese military during World War II. He promised the investors a share of the gold if they would front him the money to pay for equipment, workers' salaries, and other extraction-related expenses.
Marketing guru that he was, Reed successfully raised more than $1.3 million real dollars to dig up the purported riches. Gold excavator that he was not, he never found any gold and indeed never tried. Rather than buying excavation equipment or shovels with the $1.3 million, Reed spent almost all of the money on two mortgages, five car payments, cosmetic surgery, and a riverfront deck for his home. The only money Reed spent on the search for El Dorado was a $30,000 purchase of a gold " scanner." R. 127 at 25. One can be forgiven for wondering whether he used the scanner on potential investors.
Before long, Reed's deception was exposed. He pled guilty to wire fraud in connection with a $250,000 investment that he used to better his home and garden. In exchange for the plea, the United States Attorney's Office agreed to make a nonbinding recommendation that Reed receive a three-year sentence for the fraud. The government also agreed not to oppose Reed's request to receive credit for accepting responsibility.
In its sentencing memorandum and at the sentencing hearing, the government stated that Reed should receive credit for accepting responsibility, see U.S.S.G. § 3E1.1, but it did not say anything about an appropriate sentence for the fraud. The government spent most of its time objecting to Reed's motion for a continuance. Reed wanted to postpone sentencing for ninety days to permit a new, movie-related venture to play out and, in the fullness of time, to permit him to repay his victims. The government responded by reciting Reed's pattern of broken promises and the outlandishness of his crime.
At the end of the hearing, the district court acknowledged the written terms of the plea ...