No. 22-1186 ___________________________

United States of America

Plaintiff - Appellee

v.

Lacee Tuttle

Defendant - Appellant ____________

Appeal from United States District Court for the District of Nebraska - Omaha ____________

Submitted: November 18, 2022 Filed: March 22, 2023 ____________ Before BENTON, KELLY, and ERICKSON, Circuit Judges. ____________ KELLY, Circuit Judge.

Lacee Tuttle pleaded guilty to one count of possession with intent to distribute methamphetamine, and the district court 1 imposed a sentence of 71 months of imprisonment. Tuttle appeals, asserting that the government violated the terms of

1 The Honorable Brian C. Buescher, United States District Judge for the District of Nebraska. the plea agreement, rendering her appeal waiver invalid, and that the district court procedurally erred when determining her advisory Guidelines range.

I.

Tuttle was indicted in June 2020 on two counts of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and two counts of tampering with evidence, in violation of 18 U.S.C. § 1512(c)(1). The day before her trial was set to begin, the parties entered a plea agreement. Tuttle agreed to plead guilty to an information charging her with a single count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and she admitted to “knowingly” being in possession of “approximately 13 grams of methamphetamine” and that she “intended to distribute at least some of the methamphetamine to another individual.” The government, in turn, agreed to dismiss the four-count indictment. The plea agreement also provided in relevant part:

The defendant hereby knowingly and expressly waives any and all rights to appeal the defendant’s conviction and sentence, . . . including a waiver of all motions, defenses, and objections which the defendant could assert to the charges or to the [district court’s] entry of Judgment against the defendant, and including review pursuant to 18 U.S.C. § 3742 of any sentence imposed . . . .”

In the Presentence Investigation Report, the Probation Office recommended that Tuttle receive a three-level reduction in her offense level for acceptance of responsibility under United States Sentencing Guidelines § 3E1.1 (2018),2 which

2 USSG § 3E1.1(a) provides for a two-level reduction in a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” A defendant who qualifies for this two-level reduction can receive an additional one-level reduction “upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty.” USSG § 3E1.1(b). -2- resulted in a recommended advisory Guidelines range of 57 to 71 months of imprisonment.

At sentencing, the government objected to the acceptance-of-responsibility adjustment based on Tuttle’s post-plea conduct, which included failing to appear at a court hearing, testing positive for methamphetamine, failing to participate in random drug testing in the weeks leading up to her sentencing hearing, and attempting to withdraw her guilty plea. The district court sustained the objection and calculated a Guidelines range of 7