U.S. v. Newsome, 89-1379

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore KRUPANSKY and NELSON, Circuit Judges, and BROWN; DAVID A. NELSON
Citation894 F.2d 852
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Terrence NEWSOME, Defendant-Appellant.
Docket NumberNo. 89-1379,89-1379
Decision Date31 January 1990

Page 852

894 F.2d 852
UNITED STATES of America, Plaintiff-Appellee,
Terrence NEWSOME, Defendant-Appellant.
No. 89-1379.
United States Court of Appeals,
Sixth Circuit.
Argued Nov. 7, 1989.
Decided Jan. 31, 1990.

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Richard Delonis, Asst. U.S. Atty., Kathleen Moro Nesi, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee.

Jill L. Price (argued), Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.

Before KRUPANSKY and NELSON, Circuit Judges, and BROWN, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is an appeal under the sentencing guidelines. The defendant-appellant, Terrence Newsome, entered into a plea agreement that said his maximum term of imprisonment could not exceed 57 months. The guideline sentence range was only 33-41 months. Without specifying a legitimate reason for a departure from the guideline range, according to Mr. Newsome's submission on appeal, the district court imposed a sentence of 57 months, the maximum permitted under the plea agreement.

Mr. Newsome contends that (a) the sentence was imposed in violation of law, and (b) the upward departure from the guideline range was unreasonable. The government disputes both contentions, and raises a question as to whether, under 18 U.S.C. Sec. 3742(c)(1), 1 the sentence is appealable at all.

We do not read 18 U.S.C. Sec. 3742(c)(1) as barring an appeal filed under 18 U.S.C. Sec. 3742(a)(1), a section that authorizes the filing of a notice of appeal for review of a sentence "imposed in violation of law." Moreover, the statutory bar applies only in the case of a plea agreement that includes a "specific" sentence under Rule 11(e)(1)(C), Fed.R.Crim.P.; Mr. Newsome's plea agreement, in our view, does not fit that description.

As to the merits of the appeal, it appears to us that the district court failed to make a specific finding of an aggravating circumstance that would justify an upward departure from the guideline range. Under 18 U.S.C. Secs. 3553(b) and (c), a sentence exceeding the guideline range may not be imposed without such a finding being announced

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in open court. Accordingly, we shall remand the case for sentencing.

A criminal complaint filed against Mr. Newsome in October of 1988 alleged that on September 23, 1988, while armed with a handgun, Newsome violated 18 U.S.C. Sec. 2113 by feloniously taking approximately $3,023 from a federally insured savings and loan company in Redford, Michigan. The complaint also alleged that Mr. Newsome robbed the Michigan National Bank, in Dearborn, Michigan, six days later. The complaint was accompanied by an affidavit of a special agent of the Federal Bureau of Investigation explaining in detail why Mr. Newsome was believed to be the individual who had committed both robberies.

Mr. Newsome turned himself in a few days after the filing of the complaint. He told the authorities that he had participated in a total of five bank robberies in the Detroit area, including the two specified in the complaint and one other that came under federal jurisdiction. His statement also incriminated a fellow robber.

According to the case agent, Mr. Newsome admitted initially that he was armed with a handgun at the time of the Redford robbery. Newsome denied having been armed during any of the other robberies. The teller who was involved in the Redford episode told the FBI that he saw the handle of a gun in an inside pocket of the jacket of the man who committed the crime. When the presentence report was prepared, however, Mr. Newsome maintained that he had not been in possession of a firearm during any of the robberies, including the robbery in Redford on September 23rd.

In December of 1988, after obtaining legal counsel, Mr. Newsome entered into a plea agreement pursuant to Rule 11, Fed.R.Crim.P. Waiving indictment, Mr. Newsome pleaded guilty to a single-count information charging him with unlawfully taking $3,023 from the savings and loan in Redford. The information did not charge that Mr. Newsome was armed. The plea agreement contained a promise that "the defendant will not be charged by the federal government for other bank robberies which he has disclosed to the government." With respect to sentencing, the plea agreement said that "[t]he maximum term of imprisonment shall not exceed 57 months (4 years and 9 months)."

The cap of 57 months was agreed to, we are informed, because of counsel's miscalculation of the guideline range. Counsel thought that the range would be 46 to 57 months, but the probation officer who subsequently prepared the presentence report determined that the range was only 33-41 months. (In making his calculation, the officer assumed that Mr. Newsome was in possession of a gun when he committed the robbery with which he was charged.) Only if Newsome had been convicted of the two other federal-jurisdiction robberies in question would the range have been 46-57 months. No one challenged the probation officer's 33-41 month calculation, and the district court appears to have accepted it as correct.

Prior to the sentencing hearing, Mr. Newsome's counsel filed a memorandum urging the district court not to impose a sentence outside the guideline range. The memorandum stressed that Newsome insisted he was unarmed when he committed the robbery; that there had been no discharge of a firearm in any event; and that to sentence a defendant on the basis of uncharged conduct "would discourage defendants from fully and honestly disclosing information when talking with law enforcement officials." (The "uncharged conduct" referred to in this connection was not possession of a firearm, but commission of robberies that had not been charged.) "Defendant's disclosure provided the information necessary to resolve and close the file[s] on several bank robberies," the memorandum argued, adding that "[i]f a Defendant's full disclosure of information can be later used against him for sentence enhancement, defendants will soon stop providing this information."

Both in her memorandum and in her oral presentation at the sentencing hearing, Mr. Newsome's lawyer pointed out that where a defendant agrees to provide self-incriminating

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information concerning unlawful activities of others, and the government agrees that the self-incriminating information so provided will not be used against the defendant, it is the policy of the Sentencing Commission that the defendant should not be subject to an increased sentence because of his cooperation....

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