United States v. Black

40 F. App'x 882
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 1, 2002
DocketNo. 00-5669
StatusPublished

This text of 40 F. App'x 882 (United States v. Black) 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. Black, 40 F. App'x 882 (6th Cir. 2002).

Opinion

PER CURIAM.

The defendant, Julius Black, entered guilty pleas to one count of conspiracy to possess cocaine with intent to distribute and one count of conspiracy to possess with intent to distribute marijuana, both in violation of 21 U.S.C. §§ 841(a)(1) and 846. Subsequently, the district court sentenced Black to serve a 262-month term of imprisonment and a 5-year term of supervised release. On appeal, Black contends the district court misapplied the sentencing guidelines and committed plain error in relying exclusively upon the stipulated amount of drugs. We find no reversible error and affirm.

Black was one of ten persons indicted for taking part in a large drug smuggling operation. Immediately prior to trial, Black entered a guilty plea pursuant to a Rule 11(e)(1)(C) oral plea agreement. The substance of the plea agreement was recited in open court by counsel for the government and affirmed by defense counsel. In essence, the government agreed to (l)not prosecute Black on a third count; (2) a sentence of 262 months (the mandatory statutory minimum for Black’s offenses); (3) a fine at the lowest end of the guideline range;(4) withdraw of its notice of intent to seek enhanced sentencing pursuant to 21 U.S.C. § 851;(5) reduction of three levels pursuant to United States Sentencing Guidelines (U.S.S.G.) § 3E1.1 for acceptance of responsibility; and (6) (most importantly for purposes of this appeal) stipulate to a marijuana quantity of at least 3,000 kilograms but not more than 10,000 kilograms.

Following the recitation of the substance of the guilty plea the district court required the government to provide it with a “factual basis for guilty pleas as to ... Mr. Black.” The government then relayed the facts of the case, most of which were based on the testimony of co-conspirators. The investigation that led to Black’s trial began when the Government seized 500 pounds of marijuana in Laredo, Texas, followed by another seizure of 137 pounds. From documents taken with the 500 pound seizure the Government was able to trace phone numbers and calls to Louisville, Kentucky. Further calls were found that were made from Louisville to Laredo, Miami, Florida, and other locations. The telephone numbers and calls discovered by authorities led to Luis Cruz who was expected to testify that he was a large-scale distributor of cocaine to the Louisville area. (Cruz would further testify that he met co-defendant Robert Hayes in the Louisville area in 1994.) Mr. Hayes was jailed shortly thereafter and while in jail he met Black and other co-conspirators who discussed their future drug distribution plans following release from incarceration.

Upon release Hayes began to receive large shipments of marijuana and cocaine from Texas. Hayes employed numerous people, including Black, to aid his enterprise. Black made trips to Miami and Laredo to deliver money received from drug sales in Louisville, and returned to Louisville with more drugs. The government possessed evidence relating to the trips and the locations in Louisville where the drugs were stored. Black aided Hayes in the Louisville distribution of the drugs. There was further evidence in the form of witness testimony as to the amount of drugs distributed, the amount of money [884]*884involved, the use of vehicles, patterns of sales and delivery, and money laundering.

The district court questioned Black on different occasions to determine if he believed that the factual basis for the plea agreement as recited by the government was accurate, to which Black responded in the affirmative. Thereafter, the court stated that it would wait to determine Black’s sentence until it had a chance to review the presentence report and the parties had an opportunity to offer objections.

The court then continued the case until sentencing where objections to the presen-tence report were voiced. The district court noted in its order continuing the case that it would defer its acceptance or rejection of the plea agreement until it had an opportunity to review the presentence report.

At sentencing, Black made numerous objections, none of which affected the plea agreement or the sentence agreed upon. Following resolution of the objections the court sentenced Black to 262 months for Count 2 and 240 months for Count 3 to be served concurrently, for a total sentence of 262 months, followed by supervised release for five years. The court noted that it “reviewed the presentence report and accepted the plea agreement under Rule 11(e)(1)(C) and sentenced in accordance with it.”

On appeal, Black makes two related arguments. First, he alleges that the district court erred by failing to “conduct an independent inquiry in ascertaining ... [whether] the factual basis of Black’s sentence [was] ... supported by competent evidence in the record.” Black argues that the district court erroneously relied “exclusively” on the stipulation of the marijuana amount. Further, since the district court erroneously relied exclusively on the stipulated quantity of drugs, the resultant sentence imposed “may very well have not been within the guidelines.”

Initially, the parties quarrel over the appropriate standard of review and, in fact, whether this court even has the power to review. Black claims that the standard of review is de novo over the question of whether his sentence resulted from an incorrect application of the guidelines. Next, to avoid the government’s waiver argument, Black maintains that since he objected to other issues contained in the presentence report this court should exercise its discretion and review his sentence for plain error.

The government argues that since Black failed to object to the drug quantity that he now claims was erroneous, Black has waived the issue and this court cannot review his appeal. Black’s knowing and voluntary stipulation to the drug quantity, with no objection to the court’s acceptance of his agreement, constituted a waiver.

The Supreme Court clearly differentiated between waiver and forfeiture of rights in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In Olano, the defendant failed to object to the presence of alternate jurors in the jury room during deliberations. Id. at 727-28, 113 S.Ct. 1770. The Court noted that waiver, as opposed to forfeiture, is the “intentional relinquishment or abandonment of a known right.” Id. at 733, 113 S.Ct. 1770 (citation and internal quotations omitted). “For example, a defendant who knowingly and voluntarily pleads guilty in conformity with the requirements of Rule 11 cannot have his conviction vacated.” Id. This is because the defendant waived his right to trial. Id. It follows that, in the plea agreement context, so long as the defendant entered into the agreement knowingly and voluntarily, the defendant waived objections to what he consented to in the agreement. United [885]*885States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001).

Forfeiture, by contrast, is simply the failure to properly object and make a “timely assertion of a right.” Olano, 507 U.S. at 733, 113 S.Ct. 1770.

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Bluebook (online)
40 F. App'x 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-black-ca6-2002.