United States v. Tippins

630 F. App'x 501
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 5, 2015
DocketNo. 15-1154
StatusPublished
Cited by8 cases

This text of 630 F. App'x 501 (United States v. Tippins) 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. Tippins, 630 F. App'x 501 (6th Cir. 2015).

Opinion

SUTTON, Circuit Judge.

Charged with an assortment of drug and firearms crimes, Deondrai Tippins asked the government for a plea bargain. The government offered one, warning him that, if the plea bargaining failed, it would seek additional charges in a new indictment. When Tippins rejected the offer, the government did just that, and the jury ultimately convicted Tippins of one of the new charges. Tippins claims that the government engaged in vindictive prosecution and that the district court improperly enhanced his sentence. We disagree and affirm.

Michigan police suspected that Tippins was engaged in drug dealing. A confidential informant visited Tippins’ home multiple times, talked to him about drug prices and quantities, and saw him packaging heroin, marijuana, and co,caine in the home’s utility room. After that, the police set up a controlled drug buy. On June 26, 2013, the confidential informant went to Tippins’ home — his utility room to be more precise — and purchased 1.32 grams of crack cocaine. The next day, the police executed a search warrant of the home, where they found heroin, marijuana, and cocaine. They also discovered various tools for preparing and packaging the drugs, including razor blades, bags, scales, and baking soda. To top it off, the police found firearms in the home, and Tippins had a pistol in his pants pocket when the police arrested him. A grand jury indicted Tippins on August 14, 2013, and issued a superseding indictment on September 25, 2013.

On February 12, 2014, a grand jury issued a second superseding indictment, charging Tippins with three crimes: (1) being a felon in possession of a firearm, (2) possessing with intent to distribute cocaine base, and (3) carrying a firearm during a drug-trafficking crime. See 18 U.S.C. § 922(g)(1); 21 U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 924(c)(1)(A). The government also could have charged Tip-pins with distributing cocaine base but chose not to do so because that would [503]*503require the confidential informant to testify at trial about the controlled buy. As to that possibility, the government was concerned that Tippins had threatened to harm the informant (if Tippins could figure out who he was) and did not want to make the name of the informant public.

On April 28, 2014, during an interview with the government, the confidential informant remembered that Tippins had carried a revolver during the controlled buy. The next day, the government told Tippins about this new information. At Tippins’ request, the government extended a plea offer. That same day, the government warned Tippins in writing that, if plea bargaining failed, the government would charge Tippins with two additional counts stemming from the controlled buy: distributing cocaine base and carrying a firearm during a drug-trafficking crime. On May 2, Tippins rejected the plea offer. Four days later, on May 6, Tippins changed his mind and the government sent him a written plea agreement. On May 7, Tippins changed his mind again and refused to sign the plea agreement. The government told Tippins it would seek additional charges. On May 14, the government obtained a third superseding indictment. The grand jury charged Tippins with the same three counts from the previous indictment (with a slight alteration) and added the two new charges. See 21 U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 924(c)(1)(A).

The jury convicted Tippins on four of the five counts, returning a not-guilty verdict on one of the two charges of carrying a firearm during a drug-trafficking crime. The judge sentenced Tippins to 147 months in prison — at the low end of the guidelines range.

On appeal, Tippins makes two arguments: (1) the district court erred when it refused to dismiss the third superseding indictment for vindictive prosecution, and (2) the district court erred in applying the enhancement for maintaining a premises for drug distribution, U.S.S.G. § 2Dl.l(b)(12).

Vindictive prosecution. Tippins says that the government filed the third superseding indictment for vindictive reasons, namely that he refused to accept the plea deal. That is not an everyday charge. It requires “objective evidence that [the] prosecutor acted in order to punish [the defendant] for standing on his legal rights,” a “difficult” showing to make. Bragan v. Poindexter, 249 F.3d 476, 481 (6th Cir.2001). We review the district court’s rejection of the argument for abuse of discretion. United States v. Moon, 513 F.3d 527, 534 (6th Cir.2008).

Proof of the government’s vindictiveness, Tippins maintains, comes from the timing of the final indictment, which added two charges after the plea bargaining failed. But Supreme Court precedent permits just this kind of sequence of events. “[I]n the ‘give-and-take’ of plea bargaining, there is no ... element of punishment or retaliation” when a prosecutor threatens to charge additional behavior if bargaining fails, “so long as the accused is free to accept or reject the prosecution’s offer.” Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The problem for Tippins is that the government gave him difficult choices, not improper choices. “When the pretrial addition of more serious charges results merely from the failure of the plea bargaining process, it is not vindictive prosecution.” United States v. Walls, 293 F.3d 959, 970 (6th Cir.2002); see United States v. LaDeau, 734 F.3d 561, 569 (6th Cir.2013); United States v. Suarez, 263 F.3d 468, 479 (6th Cir.2001). It does not matter that the government was “fully aware of the facts and circumstances,” as Tippins [504]*504argues, see Appellant’s Br. 22, on which the late-added charges were based long before it sought the third superseding indictment, see Bordenkircher, 434 U.S. at 359, 98 S.Ct. 663. In situations like this one, “an additional charge entered after a failed plea bargain cannot ... form the substance of a viable vindictive prosecution claim.” United States v. DeJohn, 368 F.3d 533, 545 (6th Cir.2004). This claim fails.

Sentencing enhancement. The district court added two levels to the guidelines range on the ground that Tippins “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). No error occurred.

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630 F. App'x 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tippins-ca6-2015.