U.S. v. Martin

• Decision Date: 25 May 1994
• Docket Number: Nos. 93-6477,93-6583 and 93-6702,s. 93-6477
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian Ashley MARTIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Brian Ashley MARTIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Brian Ashley MARTIN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 211

25 F.3d 211

UNITED STATES of America, Plaintiff-Appellee, v. Brian Ashley MARTIN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Brian Ashley MARTIN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Brian Ashley MARTIN, Defendant-Appellee.

Nos. 93-6477, 93-6583 and 93-6702.

United States Court of Appeals Fourth Circuit.

Argued April 14, 1994.

Decided May 25, 1994.

ARGUED: Michael F. Imprevento, Sacks, Sacks & Imprevento, Norfolk, VA, for appellant. William Graham Otis, Asst. U.S. Atty., Sr. Litigation Counsel, Office of the U.S. Atty., Alexandria, VA, for appellee. ON BRIEF: Andrew M. Sacks, Sacks, Sacks & Imprevento, Norfolk, VA, for appellant. Helen F. Fahey, U.S. Atty., Vincent L. Gambale, Asst. U.S. Atty., Office of the U.S. Atty., Alexandria, VA, for appellee.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and WILKINSON and HAMILTON, Circuit Judges.

Vacated and remanded for resentencing by published opinion. Judge HAMILTON wrote the opinion, in which Justice POWELL and Judge WILKINSON joined.

OPINION

HAMILTON, Circuit Judge:

On April 10, 1992, Brian Ashley Martin was sentenced to 169 months' imprisonment. On March 31, 1993, citing Fed.R.Crim.P 35(b), the government moved for a reduction of Martin's sentence based upon Martin's cooperation with the government prior to sentencing. The district court denied the motion, concluding that it lacked authority, under Fed.R.Crim.P. 35(b), to grant the motion for substantial assistance rendered to the government prior to Martin's sentencing on April 10, 1992. The government moved for reconsideration and the district court denied that motion, again concluding that it lacked authority to alter Martin's sentence. Martin appeals and the government cross-appeals the district court's refusal to consider the government's motion for a reduction of sentence and the district court's denial of the government's motion for reconsideration. For the reasons stated herein, Martin's sentence is vacated and the case is remanded for resentencing.

I

In late August 1991, a special agent of the Drug Enforcement Administration (DEA) purchased 55.35 grams of cocaine base (crack) from Martin in exchange for $2,300. In late September 1991, Martin approached an automobile occupied by the special agent and another undercover officer for the purpose of selling them additional quantities of crack. During this transaction two of Martin's associates, Gerald Davenport and Ronnie Newton, approached the automobile, with Davenport pointing a firearm at the special agent and the undercover officer. The special agent and the undercover officer proceeded to leave the scene. Shortly thereafter, Martin was arrested.

On October 15, 1991, a federal grand jury sitting in the Eastern District of Virginia returned a four-count indictment charging Martin with one count of distributing five grams or more of crack, 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B) (count one); one count of conspiracy to forcibly assault a DEA agent, 18 U.S.C. Secs. 111 and 371 (count two); one count of forcibly assaulting a DEA agent, and aiding and abetting the same, 18 U.S.C. Secs. 111, 1114, and 2 (count three); and one count of carrying a firearm during and in relation to a crime of violence, and aiding and abetting the same, 18 U.S.C. Secs. 924(c)(1) and 2 (count four).

On December 4, 1991, Martin and the government entered into a plea agreement which was filed in the district court two days later. Pursuant to the agreement, Martin agreed, among other things, to: (1) plead guilty to counts one, two, and four of the indictment; (2) truthfully disclose all information with respect to the activities of himself and others concerning narcotics activities; and (3) truthfully testify before a grand jury and at any trial or court proceeding with respect to any matter about which he was requested to give testimony. In the plea agreement, the government agreed, among other things, to: (1) not make a recommendation of sentence; (2) dismiss the remaining charge in the indictment; (3) make an application on behalf of Martin for admission into the Witness Security Program; and (4) advise the district court at the time of sentencing of Martin's cooperation. The plea agreement also provided that the decision whether to file a "substantial assistance" motion under U.S.S.G. Sec. 5K1.1 or Fed.R.Crim.P. 35(b) "rests in the government's sole discretion." (J.A. 16).

After Martin entered into the plea agreement, he cooperated extensively with the government. Martin testified before a federal grand jury which led to the indictments of Davenport and Newton. Davenport pleaded guilty in part because Martin was willing and available to testify against him at a trial. Martin also testified at Newton's trial. The government has indicated that Martin's testimony was "instrumental in the conviction of Newton on all charges." (J.A. 32).

A Presentence Report (PSR) was prepared by the probation office. Notably, the PSR contains the following statement:

Substantial Assistance

3. Assistant U.S. Attorney Charles D. Griffith has advised that he does intend to make a substantial assistance motion pursuant to 18 U.S.C. 3553(e). However, because the defendant is in the process of corroborating (sic) with the Government, the motion will not be made at the time of sentencing but will be made within the year.

(J.A. 135). In addition, in its "Position of United States with Respect to Sentencing Factors," the government made the following statement:

With respect to all unresolved matters set forth in the presentence report, and with respect to the calculations, and basis therefore, of the guideline range, the United States is in agreement with the probation department.

(J.A. 19).

At sentencing, the government candidly acknowledged that Martin's assistance was substantial, having led to the prosecution of two others. The Assistant United States Attorney added, however, that, pursuant to his office's policy, he intended to defer making a substantial assistance motion until Martin had the opportunity to provide more information. Because the government did not expect Martin to testify in any pending cases, the district court questioned whether a second sentencing hearing was really necessary. However, the district court did not take issue with the government's position that, given the circumstances, it had the discretion to make a substantial assistance motion within the next year. Counsel for Martin proffered to the district court that it was in his client's best interest to allow the government to defer making its substantial assistance motion, allowing Martin additional time to cooperate, ultimately resulting in a lower sentence for his client. We recite the following exchange between the prosecutor, defense counsel, and the district court:

PROSECUTOR: Your Honor, I simply would tell the Court the defendant has been cooperative. As Mr. Imprevento [defense counsel] indicated, he did testify at the trial against Ronnie Ray Newton, and I also believe that the fact that he was available to cooperate led to the conviction of Gerald Davenport, who also ultimately ended up cooperating and assisting in that trial against Mr. Newton. I think it is fair to say that I will at some time within the next year be coming back before you to make a motion on his behalf.

Our office has a policy. We only make one such motion, and although I believe his cooperation up to now with respect to the robbery attempt would entitle him to such a motion, he is still cooperating, and we want to give him the full benefit of all the cooperation he can provide before I come back to the Court to make such a motion.

So that is something that I've told his attorney, and we've decided to delay that until a later time when we know a little bit more about the full development and extent of his cooperation, but he has been and I expect him to be continuing to cooperate. I have no problem with you sentencing him to the low end of the guidelines on the drug conviction.

Of course, there is the five-year mandatory consecutive sentence with respect to the firearm conviction.

THE COURT: Are there any other pending cases about which you expect him to testify?

PROSECUTOR: There are no pending cases.

THE COURT: The reason I'm making an inquiry is because it seems to me if he's already extended his cooperation and applied [sic] with the provisions of his plea bargaining agreement, there's no reason to delay the idea of coming back at some subsequent time because there's no reason to use the facilities of the Court or take the time of counsel to have to do so.

PROSECUTOR: Your Honor, the reason why our office chooses to do it this way is, and I don't know that Mr. Martin would fall in this category, but oftentimes, once the motion is made, the incentive to continue to provide cooperation disappears. He has other information that we would like to pursue with him, and the law does permit us to come back within one year.

THE COURT: I'm not questioning the authority to do it. I'm trying to talk about why can't we deal with it all at one time and get it over with. I understand their reasons. I understand the reasons on each side, of course.

PROSECUTOR: We don't know what other cooperation or results there will be in the future. We do know this one thing, and if I came forward now, that would be all I could come forward to the Court on. If there's more, then certainly Mr. Martin benefits from that, so it's his choice for me to delay this hearing, this motion, as well.

THE COURT: All right.

DEFENSE COUNSEL: I would agree with that, Your Honor. I do feel that there are substantial matters that may cause the Court at a later time to substantially reduce the sentence, and I think at this stage, it would be advantageous to say wait. We'll try not to burden the Court's resources and just have a brief...