United States v. Sellers

1 F. App'x 468
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 12, 2001
DocketNo. 98-3216
StatusPublished
Cited by1 cases

This text of 1 F. App'x 468 (United States v. Sellers) 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. Sellers, 1 F. App'x 468 (6th Cir. 2001).

Opinion

PER CURIAM.

The defendant-appellant, Dwayne Sellers (“Sellers”), has assailed his ninety-nine month imprisonment sentence for conspiracy to possess with intent to distribute, and to distribute, cocaine base (“crack”). He has contended that the district court prejudicially erred by failing to directly inquire at his sentencing hearing whether he had read his Pre-Sentence Report (“PSR”) and had discussed it with his attorney; and that the sentencing court should have awarded Mm a downward sentencing departure because the court had purportedly misled him concermng his sentencing exposure during his prior plea acceptance hearing.

Sellers, a professional crack cocaine dealer affiliated with a Youngstown, Ohio, association of street hoodlums known as the “5150 Gang,” confronted a federal [470]*470grand jury indictment on ten related crack cocaine counts, namely one charge of conspiracy to possess with intent to distribute, and to distribute, crack cocaine, between June 21, 1996 and May 28, 1997, plus nine substantive counts of cocaine base distribution within that period. Pursuant to a written Fed.R.CrimP. 11 plea agreement, Sellers pleaded guilty to the conspiracy count, in exchange for dismissal of the nine substantive charges. The plea contract specified that the defendant faced a statutory mandatory minimum sentence of five years, and a potential maximum penalty of forty years, of incarceration. See 21 U.S.C. §§ 841(b)(1)(B) & 846. That memorial further posited that “[t]he defendant understands that the recommendations contained herein are not binding on the Court, and the Court may impose any sentence provided for by law.... The defendant understands that sentencing is within the discretion of the Court and that the Court is required to consider any and all applicable sentencing guideline provisions.”

The defendant conceded, via the plea agreement, that at least five but less than twenty grams of cocaine base should be charged against him, which triggered a base offense level of 26. United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) § 2Dl.l(c)(7) (Drug Quantity Table). The United States agreed to recommend a three-point deduction for acceptance of responsibility, thereby reducing Sellers’ offense level to 23. The plea compact additionally memorialized that “[t]he defendant understands that the defendant’s criminal history will be determined by the Court after an investigation by the Federal Probation Department.” Finally, the agreement stated that “[t]he defendant agrees not to seek a downward departure from the applicable sentencing guidelines and the government agrees not to seek an upward departure from the applicable sentencing guidelines!)]”

On December 8, 1997, the trial judge conducted a plea acceptance hearing. In open court, the prosecutor summarized, among other things, the above-described provisions of the plea agreement. Thereafter, defense counsel concurred with the government’s summation of the plea agreement’s terms. In response to an inquiry by the district judge, the defendant’s counselor stated that had discussed with his client, “on numerous occasions” prior to the defendant’s execution of the agreement, the constitutional rights which would be affected by the agreement. Those conferences included a session which lasted between one and one-half to two hours. The defense lawyer represented that Sellers had volitionally assented to all of the terms of the plea agreement.

The court then specifically queried the defendant to ensure that he understood the stipulations of his plea bargain. The defendant, who in 1994 had completed a semester in the criminal justice program at Youngstown State University, expressed comprehension that he would sustain a prison term of at least five years but not more than forty years. The trial court unequivocally cautioned the defendant that “[n]o one can promise you in advance exactly what your sentence will be.” The trial judge, with the aid of the Assistant United States Attorney, explained to the defendant that his ultimate sentence would depend upon his criminal history calculation, which had not been performed at that point in time:

THE COURT: Then it [the plea agreement] says that your criminal history has to be determined by the Court after an investigation by the federal probation department, and it says that you understand that.

[471]*471Now, you know, sir, what your criminal history is. I don’t know and I don’t want to know today. Your lawyer knows what your criminal history is if you have been truthful with him and told him everything. Have you?

THE DEFENDANT: Yes.

THE COURT: Okay. That means that you and he together can use the law and try and figure out where would you come down on the guidelines if you went through [with] a guilty plea here, what it really [would] translate to. I can’t promise what it will translate into because I don’t know your criminal history and I don’t know what the probation department investigation would show about that or how it would be calculated. We will do that later.

But I’m going to ask Mr. Bamberger [the Assistant United States Attorney] and your lawyer, or one or the other, [to] put right here on the record what are we talking about if these calculations go on. If we take three levels off of this and it takes you down, what are we talking about in terms of how much time you might spend?

Mr. Bamberger.

MR. BAMBERGER: Your Honor, if it please the Court, with the reduction of three levels down to an adjusted base offense level of 23, the guidelines would bring him out, if his criminal history category were one, at 46 to 57 month range.

However, the statutory mandatory minimum would come into play, so his best case scenario essentially is a 60 month sentence.

In my discussions with [defense] counsel, it is estimated that the defendant’s criminal history may be as high as five, maybe four. In that case at a level 23, criminal history five which is the worst case scenario, based upon our discussions his range is 84 to 105 months. If his criminal history is four, the range is 70 to 87 months.

So essentially his range—

THE COURT: 60 to 105.

MR. BAMBERGER: — is 60 to 105 months.

THE COURT: That’s a big range, okay, but you understand that in order to get into the — the 60 month sentence is the minimum under the statute, you know that. So you can’t get under that. But it depends really on what your criminal history is, and you and your lawyer have to take what you know about your criminal history and apply it to the law and come up with the best guesstimate you can.

What Mr. Bamberger is saying is assume the very worst, we don’t know that you will fall in that, but if it’s the very worst, you are in a range of 84 to 105 months, okay? If you are four, the range is 70 to 87, okay? You got that now?

(Emphases added).

On January 16, 1998, the probation department completed its presentence report (PSR) for Sellers. Based upon Sellers’ eventful criminal past, the PSR reflected that he had accumulated thirteen criminal history points under U.S.S.G. § 4A1.1, which earned him admission into the highest possible criminal history category under the Guidelines, to wit, category VI. When category VI is matched with Sellers’ offensive level of 23, the Guidelines mandate a sentencing range of 92 to 115 months in penal confinement.

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1 F. App'x 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sellers-ca6-2001.