United States v. Rolander Charles Weaver , 245 F. App'x 946 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 29, 2007
No. 07-11407 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00125-CR-ORL-19-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDER CHARLES WEAVER,
a.k.a. Roe,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 29, 2007)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Rolander Charles Weaver appeals his 102-month sentence for
conspiring to possess with intent to distribute a substance containing cocaine
hydrochloride. Weaver argues that his sentence should not have been enhanced
based on possession of a firearm, under U.S.S.G. § 2D1.1, because the government
violated his plea agreement by adding the enhancement in retaliation for his
objection to the presentence investigation report (“PSI”). He also argues that he
should not have received the firearm enhancement because the jury did not find
that he had possessed a firearm.
We review de novo the legal question of whether a presumption of
prosecutorial vindictiveness arises under the Supreme Court’s case law. United
States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006). In addition, we review the
district court’s findings of fact concerning prosecutorial vindictiveness for clear
error. See id.In Blackledge v. Perry, the Supreme Court held that it was a violation of the
defendant’s due process rights for the government to bring new and more serious
charges against him after the defendant was granted a trial de novo. 417 U.S. 21,
28-29, 94 S. Ct. 2098, 2103 (1974). The Supreme Court noted, “A person
convicted of an offense is entitled to pursue his statutory right to a trial de novo,
without apprehension that the State will retaliate by substituting a more serious
charge for the original one, thus subjecting him to a significantly increased
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potential period of incarceration.” Id. at 28, 94 S. Ct. at 2102-03. Therefore, a
prosecutor violates a defendant’s due process rights when additional charges are
added as retaliation “for exercising statutory or constitutional rights.” United
States v. Spence, 719 F.2d 358, 361 (11th Cir. 1983); see Bordenkircher v. Hayes,
434 U.S. 357, 363, 98 S. Ct. 663, 668 (1978). A presumption of vindictiveness
applies when a prosecutor brings more serious charges following the defendant’s
exercise of procedural rights and
the circumstances demonstrate either actual vindictiveness or a
realistic fear of vindictiveness. Where the circumstances show only a
realistic fear of vindictiveness, however, the strength of the
presumption is determined by a balancing test which weighs the need
to give defendants freedom to decide whether to appeal against the
need to give the prosecutors freedom to decide whether to prosecute.
Spence, 719 F.2d at 361-62 (quotation and alteration omitted). Where the
presumption of vindictiveness applies, the government may prove, through
objective evidence, that there was no actual vindictiveness. Id. at 362; Barner, 441
F.3d at 1317 n.6. “Vindictiveness in this context means the desire to punish a
person for exercising his rights.” Barner, 441 F.3d at 1315.
The Supreme Court also has held that “when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be fulfilled.” Santobello v.
New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971). Furthermore, whether the
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government violated a plea agreement “is judged according to the defendant’s
reasonable understanding at the time he entered his plea.” United States v. Taylor,
77 F.3d 368, 370 (11th Cir. 1996) (quotation omitted). However, we will enforce
any sentence appeal waivers contained within a valid plea agreement. United
States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993).
As an initial matter, we conclude from the record that the government did
not violate Weaver’s plea agreement. The plea agreement stated that the
government reserved the right to report“relevant factual information, including the
totality of the defendant’s criminal activities,” to the court and the probation office,
and did not indicate that the government agreed not to hold Weaver responsible for
the firearm. Therefore, we conclude that the government did not violate the
agreement by presenting information to the probation office that resulted in
Weaver being held accountable for the firearm. See Taylor, 77 F.3d at 370.
Weaver’s claim that the government vindictively retaliated against him fails
because he has not shown that the district court clearly erred in finding that he had
not established that the firearm enhancement was applied as a result of
prosecutorial vindictiveness.1 We need not determine whether a presumption of
1
Although Weaver’s argument that he should not have received the firearm enhancement
because the government sought the enhancement in order to retaliate against him for exercising
his rights may be barred by his sentence appeal waiver, we decline to address the issue because
the government has not made this argument on appeal. See United States v. Ford, 270 F.3d
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prosecutorial vindictiveness applies to this case because Weaver’s claim fails even
if a presumption of vindictiveness applies. Here, the government presented
evidence that the results of the search of Weaver’s house were turned over to the
probation office because the probation office requested additional details about the
case in response to Weaver’s objections to the PSI. Thus, the government
presented evidence that the information was not turned over out of vindictiveness.
See Barner, 441 F.3d at 1317 n.6.
Additionally, we hold that Weaver’s argument that he should not have
received the firearm enhancement because the jury did not find that he had
possessed a firearm is barred by the sentence appeal waiver provision of his plea
agreement. See Bushert, 997 F.2d at 1350-51. Accordingly, we affirm Weaver’s
sentence.
AFFIRMED.
1346, 1347 (11th Cir. 2001) (stating that this court has a “well established rule . . . that issues
and contentions not timely raised in the briefs are deemed abandoned.”).
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