CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and Amici:

This appeal arises from a criminal proceeding involving defendant-appellant, Rodney xxxxx, and plaintiff-appellee, the United States of America. The same parties, as well as Mr. xxxxx's co-defendants, Milton A. xxxxxxx, Kevin xxxxxxx, Roosevelt xxxxxxx, and LaTisha xxxxxxx, appeared below. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal from the sentence imposed by the district court (Honorable James Robertson), on July 30, 1999. In this appeal, appellant (1) challenges the district court's rejection of the agreed upon sentencing range of 57 to 71 months, (2) asserts that the district court committed plain error in accepting the guideline calculations in the Presentence Report concerning aggravated role in the offense and criminal history, and (3) raises a claim of ineffective assistance of counsel for failure to challenge those calculations at the sentencing hearing on July 30, 1999.

C. Related Cases:

This case has not been before this Court previously. Appellant is not aware of any related cases.



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No.

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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxxx, Defendant-Appellant.



_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________________________________



BRIEF OF APPELLANT

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JURISDICTION

The district court had jurisdiction over this criminal case pursuant to 18 U.S.C. 3231. The notice of appeal was filed within the ten-day period set forth in Fed. R. App. P. 4(b). This Court has jurisdiction pursuant to 18 U.S.C. 3742.

SENTENCING GUIDELINES AND RULES OF CRIMINAL PROCEDURE

Pursuant to Rule 28(f) of the Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), pertinent sentencing guidelines and rules of criminal procedure are reproduced in the Addendum to this brief.

ISSUES TO BE PRESENTED

I. Whether the district court erred in determining that it could not accept the sentencing range that the parties had agreed to pursuant to Fed. R. Crim. P. 11(e)(1)(C) because that range was below the applicable guideline range.

II. Whether the district court committed plain error when it accepted the Presentence Report's guideline calculations, which added two criminal history points for "recency" under U.S.S.G. 4A1.1(d) even though the Report itself noted that Mr. xxxxx's offense occurred six months after his probation was terminated successfully, and assessed a four-level increase in the offense level pursuant to U.S.S.G. 3B1.1(a) on the ground that Mr. xxxxx was a leader of more than five individuals, when there was no evidence presented to support this enhancement and the government specifically agreed as part of the Rule 11(e)(1)(C) plea that no additional adjustments would apply.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On November 17, 1998, a federal grand jury returned an eight-count indictment against Rodney xxxxx, Milton A. xxxxxxx, Kevin xxxxxxx, Roosevelt xxxxxxx, and LaTisha xxxxxxx. (1) The indictment charged Mr. xxxxx with the following: 1) conspiracy to distribute and to possess with intent to distribute cocaine, heroin, and over 50 grams of cocaine base (Count 1), in violation of 21 U.S.C. 846; 2) unlawful possession with intent to distribute 50 grams or more of cocaine base (Count 3), in violation of 21 U.S.C. 841(a)(1) and 841(b)(1) (A) (iii), and aiding and abetting that offense, in violation of 18 U.S.C. 2; 3) unlawful possession with intent to distribute heroin (Count 4), in violation of 21 U.S.C. 841(a)(1) and 841(b)(1) (C), and aiding and abetting that offense, in violation of 18 U.S.C. 2; and 4) unlawful possession with intent to distribute cocaine (Count 5), in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C), and aiding and abetting that offense, in violation of 18 U.S.C. 2. [A. ___]. (2)

On May 13, 1999, pursuant to a written plea agreement, Mr. xxxxx entered a plea of guilty to count four of the indictment, which charged possession with the intent to distribute heroin on November 17, 1997. The government dismissed the remaining counts. [A. ___]. On July 30, 1999, the district court sentenced Mr. xxxxx to a term of 70 months incarceration, to be followed by a three-year term of supervised release. [A.___].

B. Statement of Facts

1. The Guilty Plea

The parties entered into a binding, written plea agreement pursuant to Fed. R. Crim. P. 11(e)(1)(C). In that agreement, Mr. xxxxx agreed to plead guilty to unlawful possession with intent to distribute heroin on November 17, 1997, in exchange for dismissal by the government of the remaining counts of the indictment. For purposes of relevant conduct, the defendant acknowledged that he was responsible for a total of at least 80, but less than 100, grams of heroin. [A. __].

The plea agreement contained a number of other provisions. Specifically, the government agreed to a sentencing range of 57 to 71 months, agreed not to argue for any relevant conduct beyond the 80 to 100 grams of heroin included in the plea agreement, and agreed that no other specific offense characteristics or adjustments under Chapters 1, 2, or 3 of the United States Sentencing Guidelines applied. [A. ___]. Thus, notably, the written plea agreement did not allow for an upward adjustment for an aggravated role in the offense.

During the plea hearing, the government indicated that it had agreed to recommend a sentence at the low end of the guideline range of 57 to 71 months. (Plea Tr. at 7, 14). The government's factual proffer at the plea hearing was, in relevant part, as follows:

[I]n November of 1997, the DEA/ATF task force that was investigating narcotics trafficking in the Park Morton section of Northwest Washington received information that Mr. xxxxx and others were storing heroin in the apartment of a woman named Pam xxxxx, who lived in apartment xx on the second floor of the apartment building located at 651 Morton Street, Northwest, in the District.



* * * *



When the warrant was executed, found in a closet off the living room of that apartment was a safe. In that safe the officers and agents found and recovered various quantities of different drugs. Specifically with regard to heroin, since that is what is the basis of Count Four, the agents recovered one package of 119 bags of heroin, individual sale size bags; another package of 143 bags of heroin; another package of 254 bags of heroin; and then larger bags, one containing 3.8 grams of heroin, another containing 13.8 grams of heroin; and then two packs with a total of 26.2 grams of heroin. That 26.2 grams of heroin was 94 percent purity. The other purity levels of the drugs - of the heroin that was recovered - ranged from as low as 13 percent up to as high as 60 percent.There was a total of heroin recovered during that search warrant in that safe of 64.6 grams. Also recovered were bottles of cutting agents such as Inositol and quinine, a blender with what the DEA lab found to be heroin residue, and a digital scale with heroin residue.



* * * *



Mr. xxxxx, among others, was reasonable [sic] for the heroin that was being stored in that apartment that Ms. xxxx was allowing to be stored there, and that Mr. xxxxx did have a possessory interest in that heroin, and that it was there for the purpose of distribution - being stored there for the purpose of distribution.(Plea Tr. 12-13). Nowhere in the written agreement or factual proffer did the government suggest that Mr. xxxxx was a leader or otherwise qualified for an upward adjustment for his role in the offense. In fact, as noted above, the government agreed that no upward adjustments would apply. [A.___].

2. The Presentence Report

The Presentence Investigation Report ("PSR") reiterated in part the written plea agreement between the parties. It noted that Mr. xxxxx pled guilty to count four of the indictment and acknowledged he was responsible for between 80 and 100 grams of heroin. [PSR 2]. (3) It also noted that, pursuant to Fed. R. Crim. P. 11(e)(1)(C), the parties agreed that the appropriate sentencing range would be 57 to 71 months. Id. The PSR failed to note that the government had agreed that no other adjustments were appropriate. Id.

With respect to the factual allegations, the PSR notes that a search warrant executed on November 17, 1997, at xxx Morton Street, NW, Apt. xx, led to the recovery of a quantity of crack, heroin, and other drugs. [PSR 11]. The amount of heroin recovered in that search was between 66 and 67 grams. [PSR 12]. In relaying the offense conduct, the PSR asserted, without explanation or any factual basis, that the conspiracy was "headed by defendant Rodney xxxxx" and linked him generally to sales of heroin beginning in 1994. [PSR 6]. It further noted that the defendants were in the business of distributing crack cocaine, but noted that "Milton xxxxxxx had primary responsibility for the crack side of the operation." [PSR 7]. (4)

Later, the PSR asserts, again without explanation or attribution, that Mr. xxxxx "is regarded as the leader of this criminal activity that involved more than five participants" and notes [Mr. xxxxx's] primary responsibility was the distribution of heroin. He is accountable for the quantity of heroin found during the search of Pamela xxxxxx's residence on November 17, 1997, which totaled 66.03 grams. Milton xxxxxxx had the primary responsibility for the distribution of the crack cocaine. He is accountable for the distribution of 123.1 grams of cocaine base. Defendants xxxxxxx and xxxxxxx assisted defendant xxxxx in the heroin sales. Defendant xxxxxxx provided her residence as a place where drugs were stored.

[PSR 16].

The Probation Office determined that the defendant was responsible for the distribution of 66.03 grams of heroin - the heroin seized during the search on November 17, 1997 - establishing a base offense level of 22. [PSR 12, 21]. The PSR writer then adjusted the offense level upwards by four, finding that Mr. xxxxx was an organizer or leader of a criminal activity involving five or more participants, and gave him his three-level adjustment for acceptance of responsibility, thus rendering an offense level of 23. [PSR 24, 28, 29].

With respect to the criminal history calculation, the PSR found that Mr. xxxxx was on probation for a prior conviction until April 9, 1996, and thus added two points pursuant to 4A1.1(d). [PSR 40]. However, because the PSR only held Mr. xxxxx accountable for the heroin seized on November 17, 1997, his probation had terminated prior to the commission of his offense. The assessment of these additional criminal history points put Mr. xxxxx in criminal history category IV, leaving a range of 70 to 87 months. [PSR 68]. Without the additional 2 points, Mr. xxxxx would have been in criminal history category III, with a resulting range of 57 to 71 months - the range agreed upon in the plea agreement.

Defense counsel did not object to the calculations contained in the PSR.

3. The Sentencing Hearing

At the sentencing hearing on July 30, 1999, the court noted that the plea was entered pursuant to Rule 11(e)(1)(C) and contemplated a range of incarceration of between 57 and 71 months. (S. Tr. 2). Defense counsel specifically stated that he did not contest the calculations of the Probation Officer, (5) but noted that, because the plea was entered pursuant to Rule 11(e)(1), the appropriate guideline range was 57 to 71 months. (S. Tr. 3). The court stated that because the agreed-upon range was 57 to 71 months, and the calculation by the Probation Office was 70 to 87 months, the court's discretion was limited and it was required to sentence Mr. xxxxx to a period of between 70 and 71 months. (S. Tr. 3).

Defense counsel asserted, and the government did not dispute, that the joint position of the parties was that acceptance of the Rule 11(e)(1)(C) plea by the court "removes the discretion of the probation office and supersedes the guideline calculation of the United States." (S. Tr. 3-4). The court disagreed, noting

I think the law makes it quite clear that I can accept an 11(e)(1) (c) plea if it falls within the guidelines ranges and to the extent it falls within guidelines ranges unless there is a justifiable reason for a departure downward. I have seen no application for a downward departure, and I see no reason for a downward departure.(S. Tr. 4). The prosecutor opined that the court had the power to accept the agreement; he also proffered as a rationale for the agreed-upon sentence the weakness of the government's case due to the lack of cooperating witnesses:

Based on that, the strength of our case, I became concerned the strength of our case if I'm having witnesses who are having to be impeached with their grand jury testimony possible recanting or not being able to find them at all was sufficient; and in consultation with my supervisors, we came to the conclusion that the lowering of the guidelines range by a couple of notches, which wasn't in our opinion that huge a jump, was the appropriate way to go because in our view that way was a guaranteed conviction; and the difference between the guideline range that we would arrive at without the 11(e)(1)(C) and with it was not that great.(S. Tr. 5-6). The prosecutor also noted that he had agreed not to oppose the lower end of the guideline range. (S. Tr. 6).

The court believed it could only accept the agreed-upon range if there were reasons to depart that fit within the narrow confines of the law surrounding Chapter 5 departures, and invited defense counsel to proffer a reason to depart to the agreed-upon sentencing range. In response, defense counsel stated

[t]he only proffer we can make to the Court is that it was our belief that the submission of the lowered - the lowered guideline range and the government's representations with respect to the plea would have been sufficient to establish a motion for downward departure where that was required by the court. We submit to the Court only that Mr. xxxxx in this particular instance has, by entering his plea early, and seeking to plead extremely early in this matter - although he has not given assistance to the government on that with respect to its prosecution of others, he has in fact resolved many issues. (S. Tr. 7). Despite the parties' attempt to fashion a basis for departure in order to convince the court to sentence the defendant in accordance with the plea agreement, defense counsel failed to note that if the erroneous guideline calculations in the PSR were corrected, the agreed-upon range would be the same as the applicable guideline range or higher. Defense counsel offered no alternative suggestion to the court as to how to reach the range agreed to by the parties short of a U.S.S.G. 5K1 departure, which was, of course, not available without a motion by the government.

In deciding that it did not have the authority to adopt the plea agreement, the court stated "I read this [ 6B1.2] and its use of the word 'depart' to be a - to invoke all the law about departures." (S. Tr. 6).

The court subsequently construed the parties' agreement to a range of 57 to 71 months as a motion for a downward departure, and denied that motion on the ground that there was no justifiable reason to depart. (S. Tr. 14). The court then sentenced Mr. xxxxx to what it believed to be the lowest possible sentence that it had authority to impose - 70 months. (S. Tr. 14).

SUMMARY OF ARGUMENT

The parties had agreed in a binding Rule 11(e)(1)(C) plea that the appropriate sentence would be a range of 57 to 71 months, and that no upward adjustments would apply. The sentencing court erred when it accepted the 11(e)(1)(C) plea and then rejected the agreed-upon sentencing range because it was outside the guideline range. Because the sentencing guidelines do not trump the Federal Rules of Criminal Procedure, the sentence under an11(e)(1)(C) plea does not have to be within the guideline range to be accepted by the court. Additionally, the sentencing court committed plain error in accepting the PSR's guideline calculations. First, the court committed plain error when it assessed an increase of four levels in the base offense level pursuant to U.S.S.G. 3B1.1(a) on the basis that the defendant was a leader of more than five individuals when there was no evidence in the record to support that adjustment and the government had specifically agreed as part of the 11(e)(1)(C) plea that no adjustments would be appropriate. Second, the court committed plain error when it assessed two criminal history points under U.S.S.G. 4B1.1(d) for recency of criminal activity when the misconduct for which the PSR held the defendant responsible occurred more than six months after the appellant's probation was terminated successfully. In the alternative, appellant was deprived of effective assistance of counsel at the sentencing hearing when defense counsel failed to object to the inclusion of the four-level adjustment for role in the offense and the assessment of two criminal history points for "recency."

ARGUMENT

This Court reviews de novo the district court's legal conclusions in arriving at a guidelines sentence, its factual findings under the clearly erroneous standard, and its application of the guidelines to the facts with due deference. In Re Sealed, 105 F.3d 1460, 1462 (D.C. Cir. 1997); United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994).

Fed. R. Crim. P. 11(e)(1)(C) allows the parties to make a binding sentencing recommendation to the court. When they do so, the court may either accept and order the recommendation as its sentence or reject the agreed-upon recommendation and allow the plea to be withdrawn. The court may not modify the agreement:

[U]pon the defendant's entering a plea of guilty. . . , the attorney for the government will: . . . (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement or sentencing factor is not applicable to the case. Such a plea agreement is binding on the court once it is accepted by the court.

Fed. R. Crim. P. 11(e)(1). See United States v. Mukai, 26 F.3d 953, 955-56 (9th Cir. 1994) (government's substantial assistance motion did not authorize court to depart below five years specified in binding plea agreement; remanded to allow government to withdraw plea offer when court sentenced below agreed upon sentence); United States v. Cunavelis, 969 F.2d 1419, 1422 (2d Cir. 1992) (when parties agreed to four level departure, court could not depart further).

In this case, the government and Mr. xxxxx reached a plea agreement pursuant to Rule 11(e)(1)(C) and memorialized that agreement in writing. That agreement provided that Mr. xxxxx would be sentenced within a range of 57 to 71 months and that no upward adjustments would apply. The district court was not bound to accept the guilty plea, but once it did so, it was without authority to modify the agreement by increasing the base offense level and disregarding the agreed-upon sentencing range. See, e.g., United States v. Gilchrist, 130 F.3d 1131, 1134 (3d Cir. 1997) ("An 11(e)(1)(C) plea agreement, once accepted, binds the district court notwithstanding departures from the applicable guidelines."), cert. denied, 118 S. Ct. 1307 (1998); United States v. Olesen, 920 F.2d 538, 540 (8th Cir. 1990) ("Once a court has accepted an agreement [pursuant to Rule 11(e)(1)(C)] . . . , there is no provision in the rules that allows it to reject or modify the agreement"); United States v. Mandell, 905 F.2d 970, 972 (6th Cir. 1990) (same).

The parties may also stipulate as to factual matters affecting the offense level, and when they do so, the court is bound to accept those factual stipulations or to reject the plea and allow the parties to withdraw. See, e.g., United States v. Torres, 926 F.2d 321, 325-26 (3d Cir. 1991) (stipulation that illegally seized kilogram of cocaine would not be used in calculating offense level must be honored or defendant allowed to withdraw plea); United States v. Kemper, 908 F.2d 33, 36-37 (6th Cir. 1990) (stipulation as to amount of drugs in offense was binding recommendation for specific sentence that had to be accepted or defendant allowed to withdraw plea); United States v. Jeffries, 908 F.2d 1520, 1525-27 (11th Cir. 1990) (court must sentence according to stipulated amount of cocaine or allow defendant to withdraw plea); Mandell, 905 F.2d at 971-73 (plea agreement that clearly stated offense level would be 20 was violated when court sentenced defendant on basis of offense level of 27 after it had accepted agreement, even though resulting sentence was within general range contemplated by agreement; defendant entitled to specific performance of agreement or to withdraw plea).

In determining whether a plea agreement has been breached, courts look to "what was reasonably understood by [the defendant] when he entered his plea of guilty." United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979). When a plea bargain is breached, the appropriate remedy is to award the defendant specific performance or to allow him to plead anew. Santobello v. New York, 404 U.S. 257, 263 (1971).

Here, Mr. xxxxx seeks the benefit of the bargain he struck -- namely, no upward adjustment for role in the offense and acceptance by the district court of the agreed-upon range of 57 to 71 months. The court's addition of four points to the offense level and refusal to apply the sentencing range agreed upon breached the Rule 11(e)(1)(C) plea. Thus, specific performance is the appropriate remedy. See United States v. Ritsema, 89 F.3d 392, 402 (7th Cir. 1996) (specific performance ordered when judge withdrew approval of agreement after accepting it and defendant prejudiced); United States v. Baker, 25 F.3d 1452, 1459 (9th Cir. 1994) (specific performance of plea agreement ordered when sentencing judge imposed more restitution than agreed to); Olesen, 920 F.2d at 540 (specific performance of plea agreement ordered when sentencing judge used greater criminal history category than agreed to by parties).

In a similar case, United States v. Gilchrist, the court concluded that the district court breached the agreement when it accepted a guilty plea that called for nine months incarceration but no period of supervised release and subsequently imposed a term of supervised release. 130 F.3d at 1134. The court of appeals found that the imposition of supervised release was neither implied nor explicit in the written agreement or at the plea hearing, and therefore breached the agreement. As in Gilchrist, the district court here breached the plea agreement when it assessed a four-level increase for aggravated role in the offense and sentenced Mr. xxxxx under a range that was higher than that agreed to by the parties. If the court decided to reject the agreed upon plea, the court was obliged to inform the defendant of his right to withdraw his plea. (6) Since the court failed to provide Mr. xxxxx with an opportunity to withdraw his plea, the court was obligated to comply with the terms of the binding agreement.

The district court's view that the application of the guidelines trumped Rule 11 was mistaken. (S. Tr. _). Under 6B1.2, Standards for Acceptance of Plea Agreements (Policy Statement), the court can accept a plea to a specific sentence if it is within the applicable guideline range or if it departs from the applicable range for justifiable reasons. By contrast, Chapter 1, Part A, Subpart 4(c), entitled "Plea Agreements," notes that the Commission had no intention to change the practices with respect to plea agreements and that Rule 11 still governs. Chapter 1 provides in relevant part as follows:

Nearly ninety percent of all federal criminal cases involve guilty pleas and many of these cases involve some form of plea agreement. Some commentators on early Commission guideline drafts urged the Commission not to attempt any major reforms of the plea agreement process on the grounds that any set of guidelines that threatened to change pre-guidelines practice radically also threatened to make the federal system unmanageable. Others argued that guidelines that failed to control and limit plea agreements would leave untouched a "loophole" large enough to undo the good that sentencing guidelines would bring.

The Commission decided not to make major changes in plea agreement practices in the initial guidelines, but rather to provide guidance by issuing general policy statements concerning the acceptance of plea agreements in Chapter Six, Part B (Plea Agreements). The rules set forth in Fed. R. Crim. P. 11(e) govern the acceptance or rejection of such agreements.n Fed. R. Crim. P. 11(e) does not require that an agreed upon sentence fall within the guideline range and does not require that there be departure grounds to support the plea agreement: [U]pon the entering of a plea of guilty. . . , the attorney for the government will . . . (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case , or that a particular provision of the Sentencing Guidelines, or policy statement or sentencing factor is or is not applicable to the case.

Thus, consistent with the provisions of the guidelines and 11(e)(1)(C), plea agreements may include sentences that are outside the guidelines. United States v. Barnes, 83 F.3d at 941. In Barnes, the defendant had entered a plea that included a term of incarceration that was subsequently determined to be greater than what was provided for under the guidelines. Nevertheless, the court determined that the agreed upon sentence was fair and accepted it. The court's sentence was upheld on appeal with no discussion of a need for an upward departure. The court held that the plea agreement was binding even though it provided a sentence outside of the guidelines range:

Plea agreements can retain their authority to bind the government, the defendant and the district court even when they provide for sentences that depart from the prescriptions of the guidelines.Barnes, 83 F.3d at 941. See also United States v. Kaye, 65 F.3d 240, 243 n.3 (2d Cir. 1995) (when a plea agreement designates a specific sentence the court may accept that specific sentence even if it does not comport with the guidelines), opinion vacated on other grounds upon rehearing, 140 F.3d 86 (2d Cir. 1998); United States v. Aguilar, 884 F. Supp. 88, 91-92 (E.D.N.Y. 1995) ("under Rule 11(e)(1)(C) a large class of defendants may still be sentenced outside the Guidelines"); Cunavelis, 969 F.2d at 1422 (Rule 11(e) governs acceptance of plea agreements and thus Rule 11, not guidelines, controls); United States v. Cordova-Preez, 65 F.3d 1552, 1559 (9th Cir. 1995) (Ferguson, J., dissenting) (conflict between Rule 11 and mere commentaries on policy statements in Chapter 6 must be resolved in favor of Rule 11). But see, e.g., United States v. Carrozza, 4 F.3d 70, 87-89 (1st Cir. 1993) (Rule 11(e)(1)(C) plea to sentence outside guideline range must be justified by general departure grounds); Fields v. United States, 963 F.2d 105, 108 (6th Cir. 1992) (court can only accept agreement for specific sentence if contemplated sentence is within guidelines).

The district court's error in rejecting the plea agreement's guideline range was not harmless. This is not a case where the sentencing judge would have imposed the same sentence regardless of which range controlled. See United States v. Johnson, 43 F.3d 1211, 1213 (8th Cir. 1995) (remanded for resentencing because not clear sentencing court would have imposed same sentence when court noted that the sentence fell within both ranges but declined to specifically state that he would have imposed the same sentence). In this case, the government recommended the bottom of the sentencing range and the court sentenced Mr. xxxxx to the lowest sentence the court thought it could impose. As such, the error cannot be said to be harmless. See United States v. xxxxxxx, 63 F.3d 889, 890 (9th Cir. 1995) (error not harmless when sentencing judge's remarks did not clearly indicate whether he would have imposed the same sentence absent the error). Thus, Mr. xxxxx requests that this Court remand his case for resentencing within the agreed-upon sentencing range.

II. THE DISTRICT COURT PLAINLY ERRED WHEN IT ASSESSED A FOUR- LEVEL ADJUSTMENT IN THE BASE OFFENSE LEVEL PURSUANT TO U.S.S.G. 3B1.1 FOR AN AGGRAVATED ROLE IN THE OFFENSE AND ADDED TWO CRIMINAL HISTORY POINTS PURSUANT TO 4B1.1(d) FOR RECENCY OF CRIMINAL ACTIVITY.

A. Standard of Review.

Because this error was not preserved below, plain error analysis applies. United States v. Olano, 113 S. Ct. 1770, 1777 (1993); United States v. xxxxxxx, 198 F.3d 973, 979 (D.C. Cir. 2000). Plain error has occurred if a "clear error prejudiced the defendant's substantial rights so as to affect seriously the fairness or integrity of the judicial proceedings." United States v. Savage, 67 F.3d 1435, 1439 (9th Cir. 1995). This Court has held that error is "plain" when it "is obvious under settled law and would result in grave prejudice or a miscarriage of justice if not corrected on appeal." United States v. Drew, 200 F.3d 871, 879 (D.C. Cir. 2000) (quoting United States v. Watson, 57 F.3d 1093, 1097 & n.6 (D.C. Cir. 1995)). In the context of sentencing errors, this Court has required a somewhat "less exacting" showing of prejudice to establish plain error than is required in the context of a trial. United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994).

B. The District Court's Adoption of the PSR's Upward Adjustment for Role in the Offense is Not Supported by the Record.The district court committed plain error when it adopted the PSR's finding that Mr. xxxxx was a leader of more than five individuals. This finding was not supported by the plea agreement, the government's proffer at the plea hearing, or by any evidence in the record. In fact, that adjustment conflicted with the plea agreement in which the government specifically agreed that the defendant would not be subject to any adjustments under Chapter 3. [A. ___].

U.S.S.G. 3B1.1(a) provides for a four-level increase in the base offense level for a defendant who "was an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive." Both the guideline commentary and applicable court decisions direct the district court to consider the following factors when deciding whether to apply the adjustment for aggravating role in the offense: (1) did the defendant exercise decision making authority; (2) what was the nature of the defendant's participation in the offense; (3) did the defendant recruit accomplices; (4) did the defendant claim a greater share of the proceeds of the crime; (5) to what degree did the defendant participate in planning the offense; (6) what was the nature and scope of illegal activity; and (7) to what extent did the defendant exercise control and authority over others. See U.S.S.G. 3B1.1 comment. (n. 4); accord United States v. Bapack, 129 F.3d 1320, 1324 (D.C. Cir. 1997); United States v. Thomas, 114 F.3d 228, 261 (D.C. Cir. 1997).

The district court is required to make specific findings to support a 3B1.1 enhancement and must "advance [a] factual basis" for the enhancement. United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir. 1995) ("even if the record overwhelmingly supports the enhancement, appellate factfinding cannot substitute for the district court's duty to articulate clearly the reasons for the enhancement"); United States v. Graciana, 61 F.3d 70, 76 (1st Cir. 1995) (base offense level may only be elevated if the record permits the sentencing court to "make a specific finding, based on a preponderance of the evidence, which pinpoints [the participants] with enough particularity to give credence to the upward adjustment") (citations and internal quotations omitted). The law is well-settled that the government bears the burden of proving by a preponderance of the evidence that the defendant acted in an aggravated role. See Bapack, 129 F.3d at 1324. See also United States v. Makes Room, 49 F.3d 410, 417 (8th Cir. 1995) (district court erred when it relied on conclusory and unsupported statement contained in presentence report).

In the present case, the district court in imposing sentence adopted the findings of the PSR. (S. Tr. __). The PSR concluded that Mr. xxxxx was a leader of more than five individuals and that he was accountable for approximately 66 grams of heroin, i.e., the heroin seized on November 17, 1997. [PSR ]. The sum total of the evidence cited in the PSR was as follows:

His [Mr. xxxxx's] primary responsibility was the distribution of heroin. He is accountable for the quantity of heroin found during the search of Pamela Perry's residence on November 17, 1997, which totaled 66.03 grams. Milton xxxxxxx had the primary responsibility for the distribution of the crack cocaine. He is accountable for the distribution of 123.1 grams of cocaine base. Defendants xxxxxxx and xxxxxxx assisted defendant xxxxx in the heroin sales. Defendant xxxxxxx provided her residence as a place where drugs were stored.

[PSR 16]. However, there was no evidence in the record that Mr. xxxxx directed the activities of the other participants, set the prices for the drugs, negotiated or arranged the time and location of the transactions, that he received a larger share of he profits, or that he exercised any control over the other defendants. Thus, none of the factors required to establish an aggravated role was demonstrated in this case. Moreover, the court made no findings. Rather, the court simply adopted the PSR's aggravated role adjustment.

Although the PSR asserted that Mr. xxxxx was the leader of the organization, it held him responsible for the distribution of heroin only, not the distribution of cocaine. The PSR noted that Mr. xxxxxxx was responsible for the distribution of cocaine, not Mr. xxxxx. The PSR's bare assertion that Mr. xxxxx was the leader of the criminal activity, when in conflict with the record, is not sufficient, and the sentencing court's reliance upon it was plain error. See United States v. Sobin, 56 F.3d 1423, 1428 (D.C. Cir. 1995) (when defendant failed to object to absence of factual findings to support four-level enhancement for role in offense, court noted "we are bound to uphold the district court's enhancement if supported by the record.") (emphasis added); United States v. Ivy, 83 F.3d 1266, 1292 (10th Cir. 1996) (remanded for district court to make specific findings when evidence supported finding that the defendant was a participant in a criminal organization, but did not support government contention that he was a manager or supervisor).

The district court's unsupported finding is particularly suspect where, as here, the government stipulated as part of a Rule 11(e)(1)(C) plea agreement that no adjustments would be appropriate. A district court's finding that is contrary to terms agreed upon by the parties when that finding is based solely on the same information available to the government at the time it entered into the agreement, cannot be sustained. See United States v. Khang, 904 F.2d 1219, 1223 (8th Cir. 1990). In Khang, the defendant had been charged with use of a firearm in a drug trafficking crime, but that count was dismissed and the parties agreed that the weapon which was recovered at Mr. Khang's residence in a stash of opium had no relationship to the crime to which Mr. Khang pled guilty -- importation of opium. Id. Despite that agreement, the district court enhanced Mr. Khang's sentence for possession of a firearm during the commission of a felony. The court of appeals reversed finding that "[t]he probation office added no new evidence from an independent investigation. It relied solely on reports produced by the government investigators and prosecution attorneys." Id. The same is true in this case. The probation office "added no new evidence from an independent investigation" suggesting Mr. xxxxx was a leader of more than five individuals.

Although defense counsel did not object to the PSR or point out the lack of any factual basis on which to find the defendant was a leader, in the context of a plea agreement that specifically delineated that no such adjustment would be appropriate, it was plain error to adopt such an adjustment without making specific findings. A sentencing court cannot simply adopt the findings of the presentence report when such findings are not supported by the record. To do so is plain error. Saro, 24 F.3d at 290 ("obvious error for the district court to adopt the report's calculations [of drug amounts attributable to defendant] without any further comment or analysis because the legal standard applied by the report seems to conflict with the well-established principles of conspiracy law."). Defense counsel's error was "plain" because it should have been "obvious" from the perspective of the trial court. Olano, 113 S. Ct. at 1777, and the government and court should have realized the error even without a timely objection from defense counsel. Saro, 24 F.3d at 286. The district court in adopting the PSR's adjustment for role in the offense in the face of a conflicting agreement by the parties was clear error. In the absence of the adjustment, the sentencing range would have been 46 to 57 months. (7)

C. The Relevant Conduct for Which Mr. xxxxx Was Held Responsible Occurred After his Probation Was Terminated.

U.S.S.G. 4A1.1(d) provides that a defendant be assessed an additional two criminal history points if the offense occurred while the defendant was under any criminal justice sentence. Mr. xxxxx had been placed on probation in 1991 and remained on probation until it was terminated successfully on April 9, 1996.

Mr. xxxxx was originally charged with conspiracy to distribute and possess with intent to distribute cocaine, cocaine base, and heroin from October 1994 through September 1998. However, that charge, as well as the other substantive charges regarding cocaine and cocaine base, were dismissed as part of the Rule 11(e)(1)(C) plea. In the plea agreement, Mr. xxxxx pled guilty to the distribution of heroin on November 17, 1997 and acknowledged responsibility for between 80 and 100 grams of heroin as relevant conduct, but the government made no representations about when the additional 13 to 33 grams of heroin were possessed, and the probation office made no findings regarding that heroin.

The PSR does not find Mr. xxxxx committed any specific acts or offenses prior to the termination of his probation on April 9, 1996. In fact, the probation office specifically found in the PSR that Mr. xxxxx was accountable only for the distribution of between approximately 66 and 67 grams of heroin -- the heroin that was seized on November 17, 1997. [PSR 12]. In light of this contradictory finding, the assessment of two additional two criminal history points was plain error. See Saro, 24 F.3d at 290 (holding that PSR findings that are "internally contradictory, wildly implausible, or in direct conflict with the evidence that the sentencing court heard at trial"cannot be relied upon.).

The assessment of these additional points put Mr. xxxxx in a criminal history category IV, with a resulting range of 70 to 87 months. [PSR 68]. Without the additional two points, Mr. xxxxx would have been in a criminal history category III with a range of 57 to 71 months - the range agreed upon in the plea agreement. Cf. United States v. Martinez, 956 F.2d 891 (9th Cir. 1992) (no plain error when district court erred with respect to one point because would not have changed criminal history category).

Additionally, there is no reason to believe that the court would have sentenced Mr. xxxxx to the same sentence if it had believed it had the ability to impose a lesser sentence. The sentencing court believed that it only had the discretion to sentence Mr. xxxxx to 70 to 71 months, and sentenced him to 70 months - the lowest amount available under that mistaken belief. (S. Tr. 6, 14). See xxxxxxx, 63 F.3d at 891 ("to determine whether the sentencing error is harmless, we must look to the record, in particular the district court's sentencing remarks, to determine whether the district court would have imposed the same sentence absent the erroneous factor") (internal quotations omitted). Thus, Mr. xxxxx requests that this Court remand his case for resentencing under the agreed-upon sentencing range.

III. MR. xxxxx WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO OBJECT TO THE CALCULATIONS OF THE PRESENTENCE REPORT WITH RESPECT TO AN AGGRAVATED ROLE IN THE OFFENSE ADJUSTMENT AND THE CRIMINAL HISTORY ENHANCEMENT.

A. Standard of Review

To obtain relief for a violation of his Sixth Amendment right to effective assistance of counsel, Mr. xxxxx must demonstrate that his attorney's performance fell below "an objective standard of reasonableness" defined by "prevailing professional norms," and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Unless the trial record alone conclusively shows whether the defendant is entitled to any relief on an ineffective assistance of counsel claim, it is this Court's general practice to remand the claim for an evidentiary hearing in the district court. United States v. Fennell, 53 F.3d 1296, 1303 (D. C. Cir. 1995). However, because the record so clearly establishes defense counsel's ineffectiveness in this case, a remand is not necessary and this Court should resolve the issue on direct appeal. United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997).

B. Counsel Failed to Challenge the PSR Calculation's regarding Role in the Offense and Criminal History



To demonstrate an ineffective assistance of counsel claim, a defendant must show (1) that the representation fell below an objective standard of reasonableness; and (2) that he was prejudiced by counsel's error. See Strickland v. Washington, 466 U.S. at 688-94. The first prong of this showing is based on "prevailing professional norms," and the defendant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 688-89 (citation omitted). Under the second prong, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

This claim of ineffectiveness is controlled by this Court's decision in Soto, 132 F.3d at 58-60. Defendant Soto was convicted of transporting drugs as a courier into Washington, D.C. Soto's lawyer failed to request a downward adjustment for a mitigating role in the offense under U.S.S.G. 3B1.2. On direct appeal, Soto argued to this Court that her counsel's sentencing lapse constituted ineffective assistance of counsel. Id. at 58. After finding that it was unnecessary to remand the ineffectiveness claim because the record clearly showed that Soto was entitled to relief, this Court held that counsel's apparent ignorance of 3B1.2 fell below prevailing professional standards and clearly satisfied Strickland's performance prong. Id. at 59. The Court also concluded that Soto satisfied Strickland's prejudice test because the downward adjustment would have reduced her sentence by at least seventeen months and by as much as two and one-half years. Id. Thus, the Court remanded the case to the district court to determine whether a reduced sentence was appropriate under 3B1.2. Id. at 60.

In Soto, defense counsel did not object to the presentence report, but argued for a downward departure in two separate sentencing memoranda. Counsel even mentioned the provision at question in those memoranda. However, this Court held that " [t]o 'raise' the issue properly, counsel had to do more than simply mention the provision; he had to 'specifically [] request an adjustment under 3B1.2.'" (Internal citations omitted). Soto, 132 F.3d at 58. Counsel in this case did even less.

Counsel's deficient conduct satisfies both prongs of the Strickland test. Defense counsel did not object to the PSR's guideline calculations of offense level or criminal history. Each of these failures constituted ineffective assistance of counsel. First, the record of the district court proceedings are utterly without any evidence indicating that Mr. xxxxx was a leader or organizer of five or more individuals. Moreover, the government had specifically agreed in the written plea agreement that no other adjustments would apply. Thus, the government was precluded from arguing that the defendant was a "leader" or from offering any evidence to the court if defense counsel had challenged that finding in the PSR. Since there was no evidence whatsoever in the record that would support a conclusion that the defendant was a leader of five or more individuals and the government had conceded the point, defense counsel was ineffective for failing to challenge the four-level upward adjustment included in the PSR and adopted by the sentencing court.

Similarly, defense counsel was ineffective in failing to challenge the inclusion of a two-point increase in Mr. xxxxx's criminal history on the basis that he was on probation when he committed the instant offense. Although the original indictment had charged Mr. xxxxx with a conspiracy that began in 1994, the PSR writer had specifically held the defendant responsible only for the heroin seized on November 17, 1997. This seizure occurred more than two years after Mr. xxxxx completed his term of probation successfully. Thus, reasonably competent defense counsel would have argued that the additional two points were inappropriately assessed. Had defense counsel simply pointed out this error, the court would have been able to sentence Mr. xxxxx within the range agreed upon in the plea agreement.

No reasonably competent counsel would have failed to object to the PSR's guideline calculations, especially in the face of the parties' 11(e)(1)(C) agreement, and there was no arguable strategy for the failure to do so. The error of Mr. xxxxx's counsel in failing to challenge in any way the calculations contained in the PSR was "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.

The probability of a different result is supported by the comments made by the district court that suggest that the court believed its discretion was severely limited and sentenced Mr. xxxxx to the lowest sentence within its discretion. In the plea, the government specifically agreed not to oppose the low end of the guidelines, and there is nothing in the record that suggests the court would not have gone along with the government. Like the defendant in Soto, Mr. xxxxx satisfies Strickland's prejudice test because the correct calculation would have resulted in a sentencing range of 57 to 71 months, as stipulated in the plea agreement, or lower, and would have allowed the Court to sentence Mr. xxxxx as much as 13 months below the 70 month sentence he received. The general practice in this circuit is to remand an ineffective assistance of counsel claim for an evidentiary hearing unless the record conclusively shows that the defendant either is or is not entitled to relief. Fennell, 53 F.3d at 1303-04. Because the record clearly indicates that Mr. xxxxx's counsel rendered ineffective assistance by failing to challenge the PSR calculations, this Court can resolve the ineffectiveness claim without a remand to the district court for an evidentiary hearing on the issue. Since the record conclusively shows that Mr. xxxxx could have successfully challenged the PSR calculations, this Court should remand his case for the district court to sentence within the appropriate range of 57 to 71 months.



CONCLUSION

For the foregoing reasons, appellant Rodney xxxxx respectfully requests that this Court remand the case for resentencing within the agreed-upon sentencing range of 57 to 71 months.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER



_____________________

MICHELLE PETERSON

Assistant Federal Public Defender

625 Indiana Ave. N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant Rodney xxxxx





CERTIFICATE OF LENGTH



I hereby certify that the foregoing Brief for Appellant Rodney xxxxx does not exceed the number of words permitted by D.C. Circuit Rule 28(d).



_________________________________

Michelle Peterson









CERTIFICATE OF SERVICE



I hereby certify that on this _____ day of _____, 2000, I caused two copies of the foregoing Brief of Appellant Rodney Renard xxxxx, together with one copy of the Appendix thereto, to be served by mail, addressed to: John R. Fisher, Chief, Appellate Section, Office of the United States Attorney, 555 Fourth Street N.W., Room 10-435, Washington, D.C. 20001.



_________________________________

Michelle Peterson


1. Mr. xxxxxxx entered a guilty plea and was sentenced to 57 months in prison on October 19, 1999. Ms. xxxxxxx entered a guilty plea and was sentenced to three years probation on September 28, 1999. Mr. xxxxxxx entered a guilty plea and was sentenced to 80 months in prison on April 27, 2000. These other defendants have not appealed their sentences. Mr. Cobb has yet to be apprehended.

2. "A. __" refers to pages of the Appendix filed with this brief. "Plea Tr. __" refers to the May 13, 1999 transcript of Mr. xxxxx's guilty plea hearing. "S. Tr. __" refers to the July 31, 1999 transcript of his sentencing hearing.

3. The Presentence Report is being filed separately today under seal.

4. Mr. xxxxxxx entered a plea of guilty to unlawful possession with intent to distribute cocaine base in violation of 21 U.S.C. 841(a)(1) and 841 (b)(1)(C). Pursuant to the 11(e)(1)(C) agreement, the parties agreed that the appropriate sentencing range would be 46 to 57 months. On October 19, 1999, the court sentenced Mr. xxxxxxx to a sentence of 57 months, despite the PSR guidelines calculation of 188 to 235 months. The court noted that if it were to adopt the PSR, it would have to sentence within that range because "I find no basis whatsoever in this record for any downward departure." Nevertheless, the court accepted the range proffered by the parties. Additionally, at the request of counsel for Mr. xxxxxxx, the court removed from the presentence report the two-level enhancement for possession of a weapon.

5. The Court inquired of defense counsel as follows: "I have a set of guideline calculations. Mr. Beaman, if I'm not mistaken, we have never received probation - probation has never received the receipt and acknowledgement of the presentence report from you; is that correct? . . . Where is it?" At that time, defense counsel submitted the form noting that "there are no material factual inaccuracies."

6. U.S.S.G. 6B1.3 provides that if the court decides to reject a plea that has been entered pursuant to Rule 11(e)(1)(C), the court must allow the defendant an opportunity to withdraw his guilty plea:

If a plea agreement pursuant to Rule 11(e)(1)(A) or Rule 11(e)(1)(C) is rejected, the court shall afford the defendant an opportunity to withdraw the defendant's guilty plea. Rule 11(e)(4), Fed. R. Crim. P.

This section of the sentencing guidelines gives effect to the requirements of Rule 11(e)(4), which states:

[i]f the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea. . .

Thus, if the court rejects the agreed upon sentence, the defendant must be allowed to withdraw his plea. See e.g., United States v. Thornton, 23 F.3d 1532 (9th Cir. 1994); United States v. Bohn, 959 F.2d 389 (2d Cir. 1992); Cunavelis, 969 F.2d at 1422 ("the district court may accept or reject an (A) or (C) plea, but it may not modify it"); Kemper, 908 F.2d at 37 ("once the district court found grounds for rejecting the plea agreement, it was error for the court to impose a sentence without affording defendant Kemper an opportunity to withdraw his guilty plea").

7. Of course, the defendant recognizes that he is entitled only to the benefit of his bargain - to be sentenced within the agreed-upon range, 57 to 71 months.