United States v. Luckerson , 267 F. App'x 293 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5154
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH MICHAEL LUCKERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00008)
Argued: February 1, 2008 Decided: February 29, 2008
Before MOTZ, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Motz and Judge King joined.
ARGUED: James Stephens Weidner, Jr., Charlotte, North Carolina,
for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
On January 24, 2006, the Appellant, Keith Michael Luckerson
(“Luckerson”), was indicted for possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1) (“Count One”) and possession
with intent to distribute marijuana in violation of 21 U.S.C. § 841(“Count Two”). Subsequently, Luckerson and the Government signed
a plea agreement in which Luckerson pled guilty to Count One in
exchange for the Government’s agreement to dismiss Count Two. The
plea agreement included a series of stipulations related to
Luckerson’s offense level along with a provision waiving (“waiver
provision”) Luckerson’s right to appeal his sentence.
The waiver provision contained three exceptions that would
allow Luckerson to appeal his sentence. At Luckerson’s sentencing,
the district court applied a non-stipulated four-level enhancement
pursuant to United States Sentencing Guideline (U.S.S.G.)
§ 2K2.1(b)(5)(2005)1. Luckerson appeals the district court’s
decision to apply the non-stipulated enhancement, and contends that
our review is proper because it falls within one of the plea
agreement’s three exceptions. After a thorough review of the
record, we dismiss Luckerson’s appeal.
1
“If the defendant used or possessed any firearm or ammunition
in connection with another felony offense; or possessed or
transferred any firearm or ammunition with knowledge, intent, or
reason to believe that it would be used or possessed in connection
with another felony offense, increase by 4 levels...”
2
I.
On July 5, 2005, as Luckerson was driving from Houston to New
York, a North Carolina police officer pulled him over for speeding.
After Luckerson consented to a search of his vehicle, the police
officer looked in the vehicle’s trunk and discovered seven unloaded
new pistols, several boxes of ammunition, and marijuana. As a
result, on January 24, 2006, Luckerson was indicted for possession
of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and
possession with intent to distribute marijuana in violation of 21
U.S.C. § 841(a). Luckerson eventually entered into a plea
agreement with the Government in which he pled guilty to the gun
possession charge, and the Government agreed to drop the marijuana
possession charge.
Paragraph 7 of the plea agreement contained several
stipulations relating to the calculation of Luckerson’s offense
level under the sentencing guidelines including: Luckerson’s base
offense level (20), his eligibility for a two-level enhancement
because of the multiple firearms involved in the crime2, and his
opportunity to obtain a three-level reduction based on acceptance
of responsibility and the timeliness with which Luckerson notified
the Government of his intent to plead guilty or provided
information to the Government about his involvement in this crime.
(J.A. 10-11.) Though the plea agreement did not contain a
2
U.S.S.G. § 2K2.1(b)(1)(A)(2005).
3
stipulation setting out Luckerson’s final offense level, based on
the stipulations in the plea agreement, Luckerson’s final offense
level would have been 19.
The United States Probation Office submitted a Pre-Sentencing
Report (PSR) to the district court in which it recommended a
sentence consistent with the stipulations in paragraph 7; however,
the PSR also recommended an additional four-level enhancement
because Luckerson possessed the firearms in connection with another
felony offense - i.e., drug trafficking. U.S.S.G. § 2K2.1
(b)(5)(2005). With this four-level enhancement, the PSR calculated
Luckerson’s offense level to be 23, resulting in a sentencing
guideline range of 51-63 months.3
On October 30, 2006, Luckerson’s sentencing hearing took
place. During the hearing, Luckerson objected to the four-level
enhancement, contending that simply because both the firearms and
marijuana were located in the trunk of his vehicle did not
necessarily indicate a connection between the two items; in fact,
Luckerson claimed that their close proximity was merely fortuitous.
While conceding that the issue was “close” (J.A. 54), the district
court overruled Luckerson’s objection to the four-level
enhancement, and sentenced him to 51 months imprisonment, a two-
year term of supervised release, and a $100.00 special monetary
3
Without the four-level enhancement, Luckerson’s sentencing
guideline range would have been 33-41 months.
4
assessment fee. Luckerson appeals the reasonableness of the
district court’s decision to apply the four-level enhancement.
Prior to reviewing the substance of Luckerson’s contentions, we
must determine whether the plea agreement precludes Luckerson’s
appeal.
II.
We review whether Luckerson has waived his right to appeal de
novo. See, e.g., United States v. Brown, 232 F.3d 399, 402-03 (4th
Cir. 2000). The parties disagree over whether the plea agreement’s
waiver provision bars Luckerson from appealing his sentence. The
interpretation of a plea agreement is guided by the law of
contracts. United States v. Chase, 466 F.3d 310, 314 (4th Cir.
2006). The waiver provision states, in part:
. . .[Luckerson] waives all such rights to contest the
conviction and/or sentence except for. . . . (3)the
sentence, but only to the extent defendant contests the
sentence on the basis that one or more findings on
guideline issues were inconsistent with the explicit
stipulations contained in any paragraph in the plea
agreement filed herein, or on the basis of an
unanticipated issue that arises during the sentencing
hearing and which the District Judge finds and certifies
to be of such an unusual nature as to require review by
the Fourth Circuit of Appeals.
(J.A. 13)(emphasis added). During the sentencing hearing,
Luckerson’s attorney asked the district court to certify the issue
of whether the four-level enhancement was appropriate to us. The
district court refused, holding that the issue was not unusual
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since the parties clearly anticipated it, and in fact filed briefs
on the issue. Thus, the viability of Luckerson’s appeal depends on
whether the district court’s decision to apply the non-stipulated
four-level enhancement is “inconsistent with the explicit
stipulations” in paragraph 7 of the plea agreement.
There is no doubt that the four-level enhancement applied by
the district court was not stipulated to by the parties.
Nevertheless, no provision in the plea agreement precluded the
district court from adopting additional applicable non-stipulated
sentencing enhancements. Most importantly, however, the four-level
enhancement for using a firearm in connection with another felony
was clearly not inconsistent with the explicit stipulations in the
plea agreement. To the contrary, the four-level enhancement was
perfectly consistent with all of the stipulations in paragraph 7
including the enhancement Luckerson received for possession of
multiple firearms.
III.
Because we find that the plea agreement precludes Luckerson’s
appeal of the district court’s sentence, we dismiss his appeal.
DISMISSED
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