United States v. Elliott , 45 F. App'x 208 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
8-28-2002
USA v. Elliott
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2108
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 01-2108
____________
UNITED STATES OF AMERICA
v.
TOM ELLIOTT, III
Tom Elliott,
Appellant
____________
Appeal from the United States District Court
For the Middle District of Pennsylvania
D.C. No.: 00-cr-00119-2
District Judge: Honorable Yvette Kane
____________
Submitted Under Third Circuit LAR 34.1(a) May 7, 2002
Before: NYGAARD, ALITO, and ROSENN, Circuit Judges.
(Filed: August 28, 2002)
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OPINION OF THE COURT
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ROSENN, Circuit Judge.
The appellant, Thomas Elliott, III, pled guilty in November 2000 in the United States
District Court for the Middle District of Pennsylvania to possession with intent to
distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). The court
sentenced the appellant to 140 months of imprisonment. His attorney filed a motion to
withdraw as counsel and a supporting brief pursuant to Anders v. California, 386 U.S. 738(1967). As part of his plea bargain, Elliott agreed to testify and did testify as a Government
witness against another defendant, John Watson, charged with possession with intent to
manufacture and distribute crack cocaine.
Pursuant to the plea agreement, the Government filed a motion under Sentencing
Guidelines § 5K1.1 seeking a departure from the Sentencing Guideline range of 151-158
months. The Government recommended a range of 70-87 months. The District Court
granted the Government’s motion but instead, departed downward from the minimum in the
range by 11 months only. Disappointed in the extent of the downward departure, Elliott
timely appealed.
Because we could not on the record then before us determine whether the District
Court complied with the analysis set forth by this Court in United States v. Torres, 251 F.3d
138 (3d Cir. 2001), we denied the motion of counsel for the appellant to withdraw from
this proceeding and directed him to obtain the sentencing transcript and file a supplemental
brief on this issue. We retained jurisdiction. Counsel complied and the Government also
filed a supplemental brief. It is undisputed by both counsel that the District Court complied
with Torres.
Our review of the sentencing transcript reveals that the District Court considered all
of the five factors set forth in § 5K1.1 of the Sentencing Guidelines. Although the District
Court did not consider each of the five specific 5K1.1 factors individually and articulate its
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specific findings on each factor, as we encouraged sentencing courts to do in Torres, we
are satisfied that the District Court adequately complied with Torres. Of particular
importance, the Court considered the significance and usefulness factor and found the
defendant’s testimony to be not particularly helpful. As to the other factors, the Court
recited general observations and conclusions which demonstrated that it applied all of the
other relevant factors. Significantly, the Court also noted the defendant’s “25 years of
criminal activity in this community, and a lot of [his] crimes” of violence. The defendant’s
history of criminal activity, the District Court ruled, militated against the degree of the
downward departure recommended by the Government.
Nonetheless, we pause to make a few brief observations. The Government
acknowledged again at sentencing that Elliott cooperated with the investigators, unlike his
alleged co-conspirators, and noted that Elliott provided credible information. No doubt, the
Government was aware of Elliott’s career offender status when it made its original
recommendation and when it reaffirmed it at sentencing. Notwithstanding, the Government
urged the District Court to reduce Elliott’s sentence by half. The Court thought otherwise.
Under these circumstances, we are constrained to affirm.
The judgment and sentence of the District Court is affirmed. In light of the
supplemental brief and the sentencing transcript, we vacate our original denial of counsel’s
motion to withdraw as counsel and now grant the motion.
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TO THE CLERK:
Please file the foregoing opinion.
/s/Max Rosenn
Circuit Judge
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