U.S. v. Manigan, 08-4292.
| Decision Date | 26 January 2010 |
| Docket Number | No. 08-4292.,08-4292. |
| Citation | 592 F.3d 621 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenneth MANIGAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Carolina, for Appellant. William J. Watkins, Jr., Office of the United States Attorney, Greenville, South Carolina, for Appellee.
ON BRIEF:
Jessica Salvini, Salvini & Bennett, LLC, Greenville, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Columbia, South Carolina, E. Jean Howard, Assistant United States Attorney, Office of the United States Attorney, Greenville, South Carolina, for Appellee.
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge KING wrote the opinion, in which Judge AGEE joined. Judge MICHAEL wrote a separate opinion concurring in part and dissenting in part.
Kenneth Manigan pursues this appeal from his sentence in the District of South Carolina on three convictions for possession with intent to distribute cocaine, in contravention of 21 U.S.C. § 841(a)(1). Two contentions are presented for our consideration. First, the Government maintains that Manigan waived his right of appeal, precluding our review of any assertion of sentencing error. Second, Manigan contends that he is entitled to be resentenced because the district court erroneously enhanced his sentence, pursuant to section 2D1.1(b)(1) of the Sentencing Guidelines, for the specific offense characteristic of possession of a dangerous weapon. As explained below, we reject the proposition that Manigan waived his right of appeal. On the merits, we deny Manigan's sentencing contention and affirm.
Manigan's sentence is predicated on his involvement in three drug offenses that occurred between April and June 2007. On April 4, 2007, a confidential informant (the "CI") was arrested in Spartanburg, South Carolina, in possession of approximately 4.5 ounces of cocaine.1 The CI immediately cooperated with the authorities and identified Manigan as his drug supplier, advising them that he owed Manigan for nine ounces of cocaine. The following day, April 5, 2007, the CI met with Manigan in the front yard of the residence at 202 Charlesworth Avenue in Spartanburg.2 After a brief conversation, the two men entered the CI's car, where the CI paid Manigan $5600 in cash for the nine ounces of cocaine.
Thereafter, on May 26, 2007, the CI advised the authorities that Manigan had phoned that morning to arrange a meeting for the delivery of approximately 4.5 ounces of cocaine. As a result, Manigan and the CI soon met in the parking lot of a CVS Pharmacy on Union Street in Spartanburg. While there, Manigan "fronted" the CI 124.56 grams of cocaine.3 Four days later, on May 30, 2007, the CI called Manigan to arrange for payment of the fronted cocaine. The two men met outside the residence at 202 Charlesworth Avenue, where the CI paid Manigan $2800 in cash for the fronted cocaine.
Finally, on June 11, 2007, the CI again called Manigan and asked him to front two ounces of cocaine. Manigan agreed and sent "Tom Boy," one of his colleagues, to deliver 57.5 grams of cocaine to the CI, in exchange for $1700 in cash to be paid when the cocaine was sold. On June 13, 2007, Manigan and the CI agreed to meet at a residence on Pennwood Drive in Spartanburg so that the CI could pay Manigan. After obtaining $1700 in cash from the authorities, the CI drove to the Pennwood Drive residence. Manigan was waiting inside and the CI gave Manigan the money.
On June 20, 2007, the authorities executed a search warrant at 202 Charlesworth Avenue. In the back right bedroom of the residence, the agents found two shoe boxes. One shoe box, found on the right side of the bed, contained two handguns, which the agents seized.4 One of the seized firearms was later determined to be stolen. The second shoe box, found near where the handguns were seized, contained "various papers addressed to Manigan at 202 Charlesworth Avenue." J.A. 78. The federal agents also searched a 1990 Chevrolet Caprice located at the residence and seized a bag containing 3.26 grams of cocaine from under the driver's seat. Manigan was the registered owner of the Caprice. Manigan was arrested that very day in possession of 32.05 grams of marijuana, 6.70 grams of crack cocaine, and $9520 in cash.5 During an interview with the authorities on June 27, 2007, and again at sentencing, Manigan admitted that the seized handguns were his.
On July 10, 2007, the grand jury in Spartanburg returned a three-count indictment against Manigan, each count charging possession with intent to distribute cocaine, in contravention of 21 U.S.C. § 841(a)(1). On October 23, 2007, Manigan pleaded guilty to all three counts. In the plea agreement between Manigan and the Government (the "Plea Agreement"), Manigan agreed, inter alia, to
waive[] the right to contest either the conviction or the sentence in any direct appeal or other postconviction action.
J.A. 49. At the completion of his plea hearing, however, the district court advised Manigan, without objection, that "[o]nce you are sentenced, you and the Government may have a right to appeal this sentence." Id. at 30.
After Manigan's guilty pleas, the probation officer calculated Manigan's Guidelines range as 151 to 188 months, premised on an offense level of 29 and a criminal history category of VI. The Presentence Investigation Report (the "PSR") arrived at this offense level by starting with a base offense level of 26 and then recommending a two-level enhancement, pursuant to section 2D1.1(b)(1) of the Guidelines, for the specific offense characteristic of possession of a dangerous weapon (the "weapon enhancement"), which resulted in an adjusted offense level of 28.6 Because Manigan qualified as a career offender, however, the PSR enhanced his offense level to 32. See USSG § 4B1.1. Finally, the PSR subtracted three levels for acceptance of responsibility, resulting in a total offense level of 29. See id. § 3E1.1.
On January 28, 2008, Manigan filed a written objection to the PSR's references to firearm possession and to application of the weapon enhancement. His contention did not directly relate, however, to the essential nexus between the seized firearms and his offense conduct. Instead, Manigan challenged only the PSR's reference to his ownership of the firearms. More specifically, Manigan claimed that he admitted such ownership as part of an immunized proffer he had made to the prosecutors, arguing that such circumstances precluded the sentencing court from using the ownership admission against him. The probation officer responded that the authorities had independently established Manigan's ownership of the two firearms prior to any such proffered admission and that, as a result, the PSR's recommended application of the weapon enhancement was appropriate.
Manigan first objected to the nexus aspect of the weapon enhancement at his sentencing hearing on February 28, 2008. More specifically, Manigan orally contended that the Government had failed to establish that the handguns seized at 202 Charlesworth Avenue were sufficiently related to his offenses of conviction. The Government countered that the PSR properly recommended the weapon enhancement. The prosecutors emphasized that (1) cocaine was found in Manigan's car during the search at the Charlesworth Avenue residence, and (2) the authorities had observed Manigan proceed directly from the Charlesworth Avenue residence to other locations where he engaged in fronting transactions.
At the conclusion of the sentencing hearing, the district court adopted "the findings including the guideline calculations contained in the [PSR]," thus overruling Manigan's objection to the weapon enhancement. J.A. 60. The court then determined Manigan to be a career offender, calculated his advisory Guidelines range as 151 to 188 months, and sentenced him to concurrent terms of 169 months on each of his three convictions, followed by three years of supervised release. Notably, the district court concluded the sentencing proceedings by again advising Manigan that he "ha[d] the right to appeal this sentence." Id. at 66. Manigan has filed a timely notice of appeal, and we possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
The issue of whether a defendant has waived his right of appeal in connection with a plea proceeding "is a matter of law that we review de novo." United States v. Brown, 232 F.3d 399, 403 (4th Cir.2000). In assessing whether a district court has properly applied the Guidelines—including the application of an enhancement—"we review the district court's legal conclusions de novo and its factual findings for clear error." United States v. Layton, 564 F.3d 330, 334 (4th Cir.2009). The question of whether a defendant, as a specific offense characteristic, possessed a dangerous weapon for purposes of the weapon enhancement is a factual determination subject to clear error review. See United States v. Rusher, 966 F.2d 868, 880 (4th Cir.1992).
The Government's primary contention in this proceeding is that we need not address the merits of Manigan's appeal, because the Plea Agreement's appellate waiver mandates dismissal. Manigan's sole appellate contention is that the district court erred in its application of the weapon enhancement. We assess these contentions in turn.
We first analyze the Government's assertion that this appeal must be dismissed because Manigan waived his right of appeal. The Government contends that the Plea Agreement's plain and unambiguous terms, coupled with Manigan's plea colloquy representation that he had discussed the Agreement with his attorney and understood its terms, demonstrate that Manigan knowingly and intelligently waived his right of appeal.7
We have heretofore recognized that a defendant...
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