United States v. Calvin Bernard Cochran

199 F. App'x 784
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 26, 2006
Docket06-10609
StatusUnpublished
Cited by1 cases

This text of 199 F. App'x 784 (United States v. Calvin Bernard Cochran) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Calvin Bernard Cochran, 199 F. App'x 784 (11th Cir. 2006).

Opinion

PER CURIAM:

Calvin Cochran appeals his sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Cochran argues on appeal that the government breached the plea agreement in which it agreed not to oppose a sentence for Cochran at the low end *786 of the relevant guidelines range, by advocating a position inconsistent with a low end sentence. Specifically, Cochran objects to the government’s adding facts about his offense and calling the district court’s attention to them at his sentencing. Cochran also contends that the district court did not understand the mandatory requirements of U.S.S.G. § 5G1.3(b) (Nov. 2005) and should have phrased the judgment to deduct the time Cochran had already served for his state sentence. For the reasons discussed below, we hold that the government did not breach the plea agreement and, therefore, Cochran’s argument concerning U.S.S.G. § 5G1.3(b) is waived by his plea agreement sentence appeal waiver. Accordingly, we AFFIRM.

I. BACKGROUND

Cochran and the government entered into a plea agreement in which Cochran agreed to plead guilty to possession of a firearm by a convicted felon as an armed career criminal in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The probation officer recommended an enhanced base offense level of 34 pursuant to the armed career criminal provision of § 4B1.4(b)(3)(A). The government agreed to not oppose Cochran’s request for a two-level reduction for acceptance of responsibility. Further, the government agreed to make a motion pursuant to U.S.S.G. § 3El.l(b) for a one-point downward adjustment, creating a final offense level of 31 with a criminal history category of VI. Cochran’s guideline imprisonment range was 188-235 months. The government also represented that “[a]t the time of sentencing, and in the event that no adverse information is received suggesting such a recommendation to be unwarranted, the United States will not oppose the defendant’s request to the Court that the defendant receive a sentence at the low end of the applicable guideline range.... ” Rl-24 at 3-4. The agreement emphasized that the district court was not bound by these recommendations. The agreement also provided that:

The United States reserves its right and obligation to report to the [district court] and the United States Probation Office all information concerning the background, character, and conduct of the defendant, to provide relevant factual information, including the totality of the defendant’s criminal activities, if any, not limited to the count to which the defendant pleads, to respond to comments made by the defendant or defendant’s counsel, and to correct any misstatements or inaccuracies. The United States further reserves its right to make any recommendations it deems appropriate regarding the disposition of this case, subject to any limitations set forth herein, if any.

Id. at 9. Additionally, the agreement stated that:

[Cochran] agrees that [the district court] has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal [his] sentence or to challenge it collaterally on any ground, including the ground that the [district court] erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant’s applicable guidelines range as determined by the [district court] pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution;....

Id. at 10-11. By entering into the agreement, Cochran acknowledged that he had numerous felony convictions and that:

*787 On August 19, 2004, ... the Fort Myers Police Department received a complaint of a possible assault in progress ____ The complainant provided Florida tag number X62719 and indicated it was attached to a silver vehicle involved in the assault. A registration check on the tag number ... showed it registered to a 1990 Buick Regal listed as stolen.
[A Fort Myers Police officer] arrived in the area minutes later and observed a gray Buick ... [and] ... a single black male occupant in the vehicle. The driver of the vehicle, later identified as Calvin Bernard Cochran, spotted [the officer] ... and made a quick turn ... [the officer] was able to catch up to the Buick ... [and] confirmed the tag on the vehicle was X62719.... Cochran ignored [the officer’s] attempt to stop him and accelerated away from him and began a series of turns in an attempt to escape ... Cochran continued ... [until] he impacted with stop sticks.... The stop sticks ... flattened the right front tire of the vehicle ... [and] Cochran continued to attempt to flee and put the vehicle in reverse and spun it away from [the officer]. Cochran ... then fled from the vehicle on foot[,] ... ran through the front entrance of [a house,] and shut the door behind him. [The officer] believed that Cochran had entered this home illegally and attempted to open the front door, but Cochran blocked his efforts temporarily. [The officer] was able to make entry through the front entrance causing Cochran to flee into a back bedroom where he locked the door. [The officer] bre[a]ehed this door and ordered Cochran to the ground. Cochran continued to resist ... and was forcibly taken to the ground.... [B]ackup officers secured the vehicle ... [and] observe[d] a silver revolver sticking out from under the front center armrest of the vehicle....
The ... revolver was manufactured in Connecticut. The presence of this item in Florida proves Cochran possessed it in or affecting commerce. Cochran knowingly possessed the firearm at the time he was confronted and eventually apprehended.... According to the Florida Department of Clemency, there is no record of restoration of the civil right to possess a firearm for Cochran.

Id. at 12-16.

At his change-of-plea hearing, Cochran stated that he read and understood the plea agreement before signing it. Cochran understood that the court was not bound by the recommendations or facts contained in the agreement and that it could sentence him based on what the it believed to be correct. The magistrate judge reviewed the terms and consequences of the sentence appeal waiver in the plea agreement, and Cochran stated that he understood them. Cochran agreed with the facts contained in the plea agreement and pled guilty to the charge.

In the presentence investigation report (PSI) the probation officer also reported that Cochran was then serving a three-year, two-month Florida state sentence for fleeing, possession of cocaine and marijuana, and grand theft of an automobile, charges stemming from the same conduct as the instant offense. The PSI also stated that U.S.S.G.

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166 F.3d 1166 (Eleventh Circuit, 1999)

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Bluebook (online)
199 F. App'x 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-calvin-bernard-cochran-ca11-2006.