U.S. v. Jenkins

• Decision Date: 18 July 2008
• Docket Number: No. 07-1814.,07-1814.
• Citation: 537 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Donnell A. JENKINS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

537 F.3d 1

UNITED STATES of America, Appellee, v. Donnell A. JENKINS, Defendant, Appellant.

No. 07-1814.

United States Court of Appeals, First Circuit.

July 18, 2008.

Robert C. Andrews, with whom Robert C. Andrews Esquire P.C. was on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, and Sandra R. Beckner, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and STAFFORD,^* Senior District Judge.

STAFFORD, Senior District Judge.

Donnell A. Jenkins ("Defendant") appeals from his sentence on a plea of guilty to two counts of distributing cocaine base. We affirm.

I. BACKGROUND

Soon after Defendant was indicted on two counts of distributing crack cocaine, the government offered Defendant a written plea agreement. Under the terms of that agreement, Defendant was required to (1) stipulate that he was a career offender; (2) seek neither a downward departure under the Sentencing Guidelines nor a sentence below the Guidelines range; (3) refrain from moving to vacate his prior convictions; and (4) waive his right to file a direct appeal, provided the district court imposed a sentence within or below the applicable Guidelines range. In exchange for Defendant's plea, the government was required to (1) recommend a three-level reduction for acceptance of responsibility; (2) recommend a term of imprisonment at the lowest point of the applicable Guidelines range; and (3) refrain from filing a sentencing enhancement information under 21 U.S.C. § 851 stating Defendant's prior felony drug convictions. The plea agreement further provided that "if the government were to file the sentencing enhancement [information], pursuant to U.S.S.G. § 4B1.1, the Defendant would face a higher guidelines range."

Defendant rejected the government's plea offer. Thereafter, the government filed a section 851 information based on Defendant's prior felony drug convictions, and Defendant pleaded guilty-without benefit of a plea agreement-to two counts of distributing crack cocaine. Before sentencing, Defendant filed motions seeking (1) a one-level downward departure in his criminal history category based on the purported overstatement of the seriousness of his criminal record; and (2) a downward variance in the advisory Guidelines range pursuant to 18 U.S.C. § 3553. Defendant acknowledged that his probation officer "correctly compiled [his] record and assigned points as prescribed by the guidelines as well [as] assigning the career offender designation."

At sentencing, the district court denied Defendant's request for a downward departure in his criminal history category. While recognizing that it had the authority to grant such a departure for over-representation of criminal history, the district court declined to do so, specifically stating that "I think the defendant's criminal history actually is accurately reflected here." The district court nonetheless determined that "a sentence below the advisory guideline range but above the mandatory minimum is an appropriate sentence to satisfy all of the requirements of section 3553." Defendant was accordingly sentenced to a term of imprisonment of 200 months, 62 months below the bottom of the advisory Guidelines range. Defendant thereafter filed this appeal.

II. PROSECUTORIAL VINDICTIVENESS

Defendant first argues that the government's decision to file a section 851 information was motivated by prosecutorial vindictiveness. According to Defendant, the government sought to penalize Defendant for refusing to accept a plea offer requiring Defendant to waive his right to appeal his sentence. Because Defendant failed to raise this issue in the district court, we review for plain error. To vacate Defendant's sentence for plain error, we must find that (1) there was error; (2) the error was plain and obvious; (3) the error affected Defendant's substantial rights; and (4) the error impaired the fairness, integrity, or public reputation of the judicial proceedings. United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001).

A vindictive prosecution-one in which the prosecutor seeks to punish the defendant for exercising a protected statutory or constitutional right-violates a defendant's Fifth Amendment right to due process. United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). A defendant may establish a vindictive prosecution either (1) by producing evidence of actual vindictiveness or (2) by demonstrating circumstances that reveal a sufficient likelihood of vindictiveness to warrant a presumption of vindictiveness. United States v. Marrapese, 826 F.2d 145, 147 (1st Cir.1987) (citing Goodwin, 457 U.S. at 376, 102 S.Ct. 2485). If a defendant raises a presumption of vindictiveness, the prosecutor may rebut the presumption by showing objective reasons for its charges.

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Supreme Court considered an allegation of prosecutorial vindictiveness arising from unsuccessful plea negotiations. The prosecutor in that case had explicitly told the defendant that if he did not plead guilty and "save the court the inconvenience and necessity of a trial," id. at 359 n. 1, 98 S.Ct. 663, he (the prosecutor) would return to the grand jury to seek an additional charge under the state habitual offender statute, a charge that would increase significantly the defendant's potential punishment. The defendant refused to plead guilty, and the prosecutor made good his threat to add habitual criminal offender charges. On review, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not prohibit a prosecutor from carrying out a threat made during plea negotiations to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged.

In finding no due process violation in Bordenkircher, the Supreme Court distinguished its decisions in North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (applying a presumption of vindictiveness where the trial judge, on retrial, imposed a more severe sentence upon the defendant who successfully attacked his initial conviction on appeal) and Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (applying a presumption of vindictiveness where the prosecutor reindicted — on a felony charge — a defendant originally convicted of a misdemeanor after the defendant successfully exercised his right to appeal the misdemeanor charge). The Court stressed that, in Pearce and Perry, it was dealing with the state's unilateral imposition of a penalty upon a defendant who exercised a legal right to appeal his original conviction "a situation very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense." Bordenkircher, 434 U.S. at 363, 98 S.Ct. 663 (internal quotation marks and citation omitted). The Court explained that in the give-and-take of plea bargaining, "there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." Id. In distinguishing the post-appeal posture of the Pearce and Perry cases from the pre-trial posture of Bordenkircher, the Court stated: "[T]he due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction." Id. (citations omitted); see also Goodwin, 457 U.S. at 384, 102 S.Ct. 2485 (finding that a presumption of vindictiveness was not warranted where the prosecutor modified the charges against the defendant after the defendant refused to plead guilty); United States v. Cooper, 461 F.3d 850, 856 (7th Cir.2006) (explaining that the "presumption of vindictiveness does not apply to pretrial decisions by the prosecution because `[a] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution'") (quoting Goodwin, 457 U.S. at 382, 102 S.Ct. 2485); United States v. Perry, 335 F.3d 316, 324 (4th Cir.2003) (noting that "a presumption of prosecutorial vindictiveness is generally warranted only in a post-conviction setting, such as when a defendant successfully attacks his conviction on appeal, and then receives a harsher sentence on retrial").

Here, as in Bordenkircher, the prosecutor tried to induce a plea by agreeing to lenient treatment for the defendant. In Bordenkircher, the prosecutor agreed, as part of his plea offer, to refrain from seeking the return of additional charges under the state career offender statute, charges that were undisputedly supported by the facts. Here, the prosecutor agreed, as part of his plea offer, to refrain from filing a section 851 enhancement information, an information that was undisputedly supported by the facts. In both cases, the plea negotiations were unsuccessful, and the defendants faced higher penalties as a result. In neither case was a presumption of vindictiveness warranted. See Cooper, 461 F.3d at 856 (finding no prosecutorial vindictiveness where the prosecutor filed a section 851 enhancement information during the time it was trying to induce the defendant to plead guilty); United States v. Cooks, 52 F.3d 101, 106 (5th Cir.1995) (recognizing that there was no presumption of prosecutorial vindictiveness where the government filed a section 851 enhancement notice after the defendant withdrew his guilty plea that would have waived the government's discretionary right to seek enhanced penalties).

Defendant contends that the inclusion of an appellate waiver provision in the prosecutor's plea offer makes his case more like Pearce and Perry and less like B...