United States v. Anthony Dwayne Barnes

278 F.3d 644, 2002 U.S. App. LEXIS 1230, 2002 WL 113825
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 30, 2002
Docket00-5567
StatusPublished
Cited by68 cases

This text of 278 F.3d 644 (United States v. Anthony Dwayne Barnes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Anthony Dwayne Barnes, 278 F.3d 644, 2002 U.S. App. LEXIS 1230, 2002 WL 113825 (6th Cir. 2002).

Opinions

OPINION

CLAY, Circuit Judge.

Defendant, Anthony Dwayne Barnes, appeals from the judgment of conviction and sentence entered by the district court on April 21, 2000, following Defendant’s guilty plea conviction for one count of use of a communication facility to facilitate the possession with the intent to distribute marijuana in violation of 21 U.S.C. § 843(b), for which Defendant was sentenced to eighteen months of imprisonment. On appeal, Defendant contests the imposition of his sentence claiming that the government violated the terms of the plea agreement by not expressly requesting that the district court sentence Defendant at the low end of the guidelines, and claims that his criminal history level was erroneously based upon misdemeanors.

For the reasons set forth below, we VACATE Defendant’s sentence and REMAND for resentencing before a different district court judge.

STATEMENT OF FACTS

On November 19, 1999, Defendant pleaded guilty to using a communication facility-a telephone-to facilitate the commission of a drug felony; namely, “possession with intent to distribute marijuana, in violation of Title 21, United States Code, Section 843(b) and Title 18, United States Code, Section 2.” As part of the plea agreement, “[t]he government agree[d] to recommend that the Defendant be sentenced at the low end of the applicable sentencing guideline range.” The plea agreement also provided that “[t]he government agree[d] to recommend that the defendant’s base offense level be calculated using two pounds of marijuana.”

At sentencing, the court found Defendant’s criminal history level was six, his sentencing range was determined to be twelve to eighteen months, and the court sentenced Defendant to eighteen months’ imprisonment.

DISCUSSION

Defendant first argues that his sentence should be reversed and his case remanded because the government breached the plea agreement by not recommending at sentencing that Defendant be sentenced at the low end of the guidelines as set forth in the plea agreement.

We review the question of whether the government’s conduct, or lack thereof, violated its plea agreement with a defendant de novo. See United States v. Wells, 211 F.3d 988, 995 (6th Cir.2000). However, because Defendant failed to object after the government did not offer a recommendation at sentencing, Defendant waived his right to appeal any breach of the plea agreement, and a plain error analysis thus guides this Court’s review. See United States v. Carr, 170 F.3d 572, 577 (6th Cir.1999); United States v. Cullens, 67 F.3d 123, 124 (6th Cir.1995); see also Teeple v. United States, No. 00-1389, 2001 WL 873644, at *1 (6th Cir. July 26, 2001) (unpublished opinion).

When reviewing a claim under a plain error standard, this Court may only reverse if it is found that (1) there is an error; (2) that is plain; (3) which affected the defendant’s substantial rights; and (4) that seriously affected the fairness, integrity or public reputation of the judicial proceedings. See United States v. Carter, 236 F.3d 777, 783-84 (6th Cir.2001).

Defendant’s plea agreement indicates that the government expressly agreed to recommend that Defendant be sentenced at the low end of the guidelines. The plea [647]*647agreement was read verbatim to Defendant by the district court at the change of plea hearing, at which time the court acknowledged that the government recommended that Defendant be sentenced at the low end of the guidelines, while Defendant acknowledged that the court was not bound by that recommendation. Specifically, the following exchange took place between the court and Defendant at his plea hearing:

THE COURT: And do you understand that the recommendations of the plea agreement with respect to the calculation of the sentencing guidelines and your receiving credit for acceptance of responsibility and your being sentenced at the low end of the guideline range, that those are all recommendations to the court? Do you understand that the judge does not have to accept those recommendations.
THE DEFENDANT: Yes, ma’am.

(J.A. at 32-33). However, at Defendant’s sentencing, the government failed to state this recommendation on the record.

In Cohen v. United States, 593 F.2d 766, 771-72 (6th Cir.1979), this Court recognized that “[t]he leading decision on the question of the consequences of the failure of prosecuting authorities to abide by a plea bargain agreement is Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).” We went on to note that in Santobello, “the sentencing judge specifically stated that he was not concerned with the alleged breach of a plea bargain agreement because he was ‘not at all influenced by what the District Attorney says.’ ” Cohen, 593 F.2d at 771 (citing Santobello, 404 U.S. at 262-64, 92 S.Ct. at 499). We then recognized the Supreme Court’s holding in Santobello that “notwithstanding this disclaimer the defendant would be entitled to relief if he established a breach of the plea agreement.” Cohen, 593 F.2d at 771. Quoting from Santobello, we opined:

[Wjhen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled.
We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor’s recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiations of pleas of guilty will be best served by remanding the case to the state courts for further consideration .... We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.

Cohen, 593 F.2d at 771 (emphasis added) (quoting Santobello, 404 U.S. at 262-64, 92 S.Ct. at 499). This Court then held that,

[a]s the touchstone of Santobello is whether the prosecution met its commitment and not whether the court would have adopted the government’s recommendation, it necessarily follows that in this case the Parole Board’s awareness of and/or disinclination to adopt the terms and conditions of the plea agreement would be irrelevant

Cohen, 593 F.2d at 772 (emphasis added; footnote omitted).

The fact that our review is guided by a plain error standard does not effect the application of Santobello, Cohen, and their progeny inasmuch as is well-settled that when a defendant pleads guilty in reliance on a plea agreement, he waives [648]

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Cite This Page — Counsel Stack

Bluebook (online)
278 F.3d 644, 2002 U.S. App. LEXIS 1230, 2002 WL 113825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-anthony-dwayne-barnes-ca6-2002.