Appeals from the United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding DC Nos. CR 07-2063 LRS, CR 07-2114 LRS, 07-2066 LRS & CR 07-2065 LRS.
The opinion of the court was delivered by: Tashima, Circuit Judge
Argued and Submitted March 4, 2010 -- Seattle, Washington
Before: A. Wallace Tashima, Raymond C. Fisher, and Marsha S. Berzon, Circuit Judges.
In April 2008, Glen Briggs pled guilty to a host of drug-related charges. Six months, a new lawyer, and a change of heart later, Briggs filed a motion to withdraw his plea of guilty. The district court denied the motion and eventually sentenced Briggs to 324 months' imprisonment. Briggs timely appealed. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm Briggs' conviction, but vacate his sentence and remand for resentencing.
In early 2007, based on a referral from local police in Yakima, Washington, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") began investigating Briggs for trafficking in drugs and weapons. Acting undercover, ATF Special Agent Eric Floyd succeeded in making a number of methamphetamine purchases from Briggs. Floyd also indicated that he wanted to purchase guns from Briggs. Although Briggs indicated his willingness to sell guns, no sales ever materialized.
During the course of its investigation, ATF began to suspect that Briggs was involved in a string of home invasion robberies in the Yakima area. It therefore decided to stage a "reverse sting" operation. At a meeting with Briggs on February 28, 2007, Floyd floated the idea of robbing a "stash house" in Tacoma. According to Floyd, if they timed it right, the house would contain at least twenty kilograms of cocaine and ten pounds of methamphetamine. The stash house and drugs were, of course, entirely fictional. Nonetheless, Briggs immediately expressed his desire to be included in the job. He told Floyd that he had "the hardest working crew in town" and that they "do this all the time." The two agreed to discuss plans for the operation at a later date.
A month later, on March 28, 2007, Briggs and Agent Floyd met in Michael's All-star Tavern, a bar in Yakima, where they were joined by Briggs' brother Michael and Matt Steadman, an undercover member of the Yakima Sheriff's Office.*fn1 The group discussed the robbery in general terms, with each person at the meeting stating that he wanted to participate. The robbery was eventually set for April 19, 2007. On the morning of that day, Floyd met Briggs and his brother at a Motel 6 and told them he had a van ready to go to Tacoma. Briggs, moving slowly from an apparent late night of drinking, told Floyd he had to "pick up his guys." Over the next few hours, Floyd called Briggs repeatedly, telling him to hurry up and encouraging him to leave people behind so they could get on the road. Briggs refused, telling Floyd that he was waiting for someone to get out of the shower. Briggs claimed that this person "had access to the guns" that they needed for the robbery.
Briggs and his brother eventually returned to the Motel 6 with their co-defendant, Julian Mora, in the car. They met with Floyd at the van, and indicated that they were ready to go. Michael Briggs, at his brother's request, returned to his car and retrieved a bulletproof vest. Floyd then told the defendants that if they "wanted to go ahead, to get in the van." After the three entered the van, they were arrested by an ATF SWAT team. When they were arrested, none of the defendants had any guns on them, and no guns were ever recovered in connection with the conspiracy.
Briggs was ultimately charged in four separate indictments containing a total of eight counts. The two most serious counts related to the conspiracy to rob the fictional stash house: Briggs was charged with conspiracy to possess with intent to distribute cocaine and methamphetamine and conspiracy to possess a firearm in connection with a drug trafficking crime. Of the remaining six counts, four charged Briggs with completed ...