United States v. Western ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4386
RICHARD ANTHONY WESTERN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4387
NETTASHA SULEAST WESTERN, a/k/a
Nettasha Suleast Chapman,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CR-96-253)
Argued: April 6, 1998
Decided: May 29, 1998
Before WILKINS and LUTTIG, Circuit Judges, and G. ROSS
ANDERSON, JR., United States District Judge for the District of
South Carolina, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Thomas Norman Cochran, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant Nettasha West-
ern; James Wilson Swindell, High Point, North Carolina, for Appel-
lant Richard Western. Timika Shafeek, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF:
Walter C. Holton, Jr., United States Attorney, Greensboro, North Car-
olina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Nettasha Suleast Western ("Nettasha") and Richard Anthony West-
ern ("Richard")1 appeal their sentences for violation of possession
with intent to distribute "crack" cocaine, see 21 U.S.C. § 841(a)(1)
and (b)(1)(A), and violation of 18 U.S.C. § 2. Nettasha appeals the
district court's finding that she did not enter a cooperation agreement
with the government on the night of her arrest, pursuant to United
States Sentencing Guidelines Manual § 1B1.8. She also appeals the
district court's denial of her request to remain on bond pending exe-
cution of her sentence. Richard appeals his sentence, arguing the drug
amounts attributed to him at sentencing were not established by a pre-
ponderance of the evidence. We affirm the judgment of the district
court.
I.
On December 5, 1996, police officers of the High Point Police
Department executed a search warrant at defendants' home. The offi-
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1 Nettasha and Richard are collectively referred to as "defendants."
2
cers arrested defendants and transported them to the nearby police
department, seizing 257.4 grams of cocaine base in the process. While
at the police department, Nettasha was brought to Officer Sampson's
desk, at his request, to discuss the possibility of cooperation.2 During
their meeting, where Nettasha was advised of her Miranda rights,
Sampson questioned Nettasha about her drug activities, and offered
her the opportunity to "help herself." Officer Sampson expressed his
opinion that she needed to decide on cooperating"right away."
Nettasha signed a waiver of rights form, which stated any informa-
tion she provided to the authorities could be used against her. She
revealed in a written statement that she would obtain between five
and ten ounces of crack once or twice a week from her drug supplier.
Sampson informed Nettasha that he was making no promises, but that
he would discuss her case with the district attorney. Nettasha admitted
as much, stating she understood that it was "up to the judge." Thereaf-
ter, Nettasha further indicated that she and Richard had sold crack for
approximately three years, receiving about one-half of a kilogram of
crack from their source one to two times per week. Richard confirmed
that their drug dealing activities took place over a three year period.
On December 16, 1996, the grand jury returned an indictment
against the defendants. The indictment charged them with possession
with intent to distribute "crack" cocaine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A), and violation of 18 U.S.C. § 2. On January
16, 1997, Nettasha submitted a proffer letter to the government pursu-
ant to United States Sentencing Guidelines Manual§ 1B1.8. The prof-
fer reiterated Nettasha's involvement in the crime, and provided
information as to other individuals involved in the drug trade. A plea
agreement was consummated on February 4, 1997. During this
period, Nettasha assisted police by identifying other individuals, auto-
mobiles, and places associated with illicit drug activity, and was
debriefed by an agent of the DEA. Richard submitted a similar proffer
on January 31, 1997, and entered into a plea agreement with the gov-
ernment on February 4, 1997. On the same date the plea agreements
were entered, both defendants pled guilty.
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2 Richard was also summoned to Officer Sampson's desk, but the inter-
view was terminated based on Sampson's belief cooperation was not
forthcoming.
3
Thereafter, on May 8, 1997, the district court sentenced Nettasha
to a term of imprisonment of 135 months, and sentenced Richard to
a term of imprisonment of 240 months. Both defendants were given
a five year term of supervised release and charged a $100 special
assessment.
After the district court pronounced its sentence, Nettasha requested
she be permitted to remain on bond, pursuant to 18 U.S.C. § 3145(c),
pending execution of her sentence. In a separate hearing held June 4,
1997, the district court denied her request. Defendants filed timely
appeals.
II.
Nettasha first claims that the trial judge erred by finding no cooper-
ation agreement was formed between her and the government on the
night of her arrest. She argues that § 1B1.8 should govern her state-
ments to Officer Sampson because "her cooperation led ultimately to
the formation of a written plea agreement, [and that] such writing
became the final expression of the parties' agreement." She requests
that her sentence be vacated, and that the matter be remanded to the
district court with instructions she be resentenced only on the amount
of cocaine seized the night of her arrest. We conclude that the district
court properly found that no § 1B1.8 agreement existed when the
incriminating statements were made.
We are required to give "due deference" to a district court's appli-
cation of the guidelines to the facts. 18 U.S.C.§ 3742(e). Our circuit
has stated that "[t]he amount of deference due a sentencing judge's
application of the guidelines to the facts . . . depends on the circum-
stance of the case." See United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989). Where the issue turns primarily on a question of
law, we apply a standard closer to de novo review. Id. Where, as here,
the appeal requires the legal interpretation of a guideline section, we
apply de novo review.
Section 1B1.8 of the sentencing guidelines provides
Where a defendant agrees to cooperate with the government
by providing information concerning unlawful activities of
4
others, and as part of the cooperation agreement the govern-
ment agrees that self-incriminating information provided
pursuant to the agreement will not be used against the defen-
dant, then such information shall not be used in determining
the applicable guideline range, except to the extent provided
in the agreement.
See U.S. Sentencing Guidelines Manual § 1B1.8.
We are mindful that an agreement made under § 1B1.8 cannot be
read to subject a defendant to an increased sentence by virtue of her
cooperation, where the government has agreed not to use such infor-
mation for that purpose. See United States v. Malvito, 946 F.2d 1066,
1068 (4th Cir. 1991). The district court is required to honor the gov-
ernment's § 1B1.8 promise not to use evidence learned by virtue of
the cooperation to subject a defendant to a harsher sentence. Id.
Application of § 1B1.8 requires that two separate steps be satisfied
to form a binding agreement. First, a defendant must agree to cooper-
ate by providing information on the unlawful activities of others to
the government. Second, the government must agree that self-
incriminating evidence will not be used against the defendant. Net-
tasha urges us to find an agreement was made the instant she began
cooperating with the government. However, we decline to do so, find-
ing the second requirement enunciated above has not been satisfied.
We find the analysis of United States v. Rutledge, 900 F.2d 1127(7th Cir.), cert. denied, 498 U.S. 875 (1990), instructive. The
Rutledge Court held that a proper Miranda warning, followed by a
police officer's statement that a defendant's cooperation would be
helpful, does not amount to an agreement by the government not to
use self-incriminating evidence against the defendant. Id. at 1131.
Such a promise, the court concluded, would be inconsistent with the
Miranda warning just given. Id. In addition, the court noted the officer
did not rescind the Miranda warning. Id .
We find Nettasha's reliance on United States v. Fant, 974 F.2d
559, 563 (4th Cir. 1992), misplaced. We held in Fant that solicitation
of incriminating statements by agents of the FBI, posing as probation
officers, could not be used against a defendant subsequent to execu-
5
tion of a plea agreement. Id. at 563-64. The underlying rationale for
that decision was that permitting the government to side-step its plea
obligations would impede the candor of informants and undermine
the integrity of our criminal system. Id. at 564. We find that the rea-
sons supporting the decision in Fant are not present here, as no plea
agreement existed when the incriminating statements were made.
Here, it is undisputed that officers informed Nettasha of her
Miranda rights prior to her provision of self-incriminating evidence
to Officer Sampson. She signed a waiver of rights form. In addition,
Officer Sampson told Nettasha that he made no promises regarding
the information she provided. We find that no agreement was entered
by the government during the meeting concerning the use of incrimi-
nating evidence against Nettasha. Indeed, no such agreement existed,
especially considering the proximity of the Miranda warnings to her
statements and the fact that Sampson did not rescind that warning.
Inducements of self-incriminating statements by the police do not
create § 1B1.8 cooperation agreements, absent a promise to the con-
trary. We believe that where, as here, a defendant is given a proper
Miranda warning, and that warning is not rescinded, the defendant
runs the risk of providing self incriminating evidence at her own peril.
In any event, the plea agreement entered on February 4, 1997, con-
tains a clause similar to a contract integration clause. Section 8 of the
plea agreement states that "[n]o agreements, representations, or
understanding have been made between the parties in this case other
than those which are explicitly set forth in this Plea Agreement, and
none will be entered into unless executed in writing and signed by all
the parties." The Plea Agreement does not reference an understanding
between the parties that Nettasha's incriminating statements made
prior to February 4, 1997 would not be used against her. To be sure,
the plea agreement fails to include a clause which incorporates the
statements made the night of her arrest. Accordingly, we affirm the
district court's decision that no § 1B1.8 agreement was entered on the
night Nettasha was arrested.
III.
Next, Nettasha argues the district court misunderstood the release
provisions of 18 U.S.C. § 3145(c) when it ordered she be detained
6
pending execution of her sentence. When Nettasha raised her motion
for release, she was subject to the detention provisions of 18 U.S.C.
§ 3143(a)(2), as she was awaiting execution of her sentence. Since
that time, however, Nettasha has begun serving her sentence. When
questioned at oral argument regarding the relief Nettasha currently
seeks, counsel conceded that the issue of her release is now moot.
Accordingly, we find the issue is moot.
IV.
Richard argues that his sentence is invalid, contending he should
only be held accountable for the 257.4 grams of cocaine base seized
at the time of his arrest. His base offense level was calculated at 38,
based on 3.402 kilograms of cocaine base attributed to him at sentenc-
ing. He asserts the government should have offered additional evi-
dence, other than Nettasha's January 16, 1997 proffer, as to his drug
amounts.
The Government bears the burden of establishing the quantity of
drugs for which a defendant should be held accountable for purposes
of sentencing by a preponderance of the evidence. See United States
v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990); United States v. Powell,
886 F.2d 81, 85 (4th Cir. 1989), cert. denied , 493 U.S. 1084 (1990).
The Government satisfies its burden where a defendant fails to prop-
erly object to the finding recommended in a presentence report which
the court determines is reliable. See United States v. Terry, 916 F.2d
157, 162 (4th Cir. 1990). Mere objections to findings in a presentence
report, however, are not sufficient. Id. An affirmative duty is placed
on a defendant to show information contained in a presentence report
is unreliable, and a defendant is required to articulate reasons why the
information contained in the presentence report is untrue or inaccu-
rate. Id. In the absence of such an affirmative showing, the sentencing
court may adopt the findings in the presentence report without further
inquiry or explanation. Id. (citation omitted).
Here, Richard never filed specific, written objections to the accu-
racy of the Presentence Report. At sentencing, however, he argued
that he should only be held accountable for the drugs seized at the
time he was arrested. Richard failed to establish the information con-
tained in the Presentence Report was either inaccurate or unreliable.
7
The district court adopted the findings in the Presentence Report,
which were based on defendant's own statements as to drug amounts.
Nettasha indicated she and Richard had been receiving approximately
one-half of a kilogram of crack one to two times per week over a
three year period. Richard confirmed that their illicit drug activities
occurred over a three year period. The drug amounts attributed to
Richard were properly controlled by the Presentence Report. There-
fore, the judgment of the district court is affirmed.
V.
Accordingly, we affirm defendants' sentences for possession with
intent to distribute "crack" cocaine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. We reject Nettasha's
arguments that a § 1B1.8 agreement was formed the night of her
arrest, and find her appeal on the detention issue moot. We also find
Richard's argument unpersuasive. Therefore, the judgment of the dis-
trict court is
AFFIRMED.
8