Ellis R. Curry attorney win in plea agreement case re: possession of firearm

Ellis R. Curry attorney win in plea agreement case re: possession of firearm.

United States v. Romano 314 F.3d 1279 (11th 2002) - The Government properly concedes that appellant was denied the entire benefit of his plea agreement because it breached the agreement when the prosecutor strongly endorsed the probations officer's recommendation (in the PSI) that the court enhance appellant's base offense level under sections 2K2.1(b)(3) and 3C1.1 of the Guidelines. The breach bore fruit, in the form of error, in that the two sections related to conduct wholly unrelated to the offense to which appellant had plead guilty, possession of a firearm by a convicted felon. The prosecutor knew that the application of those sections would constitute error. What's more, he knew that by urging the court to apply them, he - that is, the Government - was breaching the plea agreement then and there. And, he must have known that because he was an officer of the court, who regularly appeared before the court as an attorney for the United States, the court might be inclined to accept his representations as reliable, as constituting a correct statement of the law, and act accordingly - which, indeed, is exactly what the court did. We therefore vacate the district court's judgment, and remand the case for a new sentencing hearing. VACATED and REMANDED, for further proceedings.

2002 U.S. App. LEXIS 26427,*;16 Fla. L. Weekly Fed. C 130
http://laws.lp.findlaw.com/11th/0011505opn.html
http://bulk.resource.org/courts.gov/c/F3/314/314.F3d.1279.00-11505.html
http://openjurist.org/314/f3d/1279/united-states-v-romano
http://bulk.resource.org/courts.gov/c/F3/314/314.F3d.1279.00-11505.html
http://scholar.google.com/scholar_case?case=14620769958996613040
...................................................

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ROMANO, Defendant-Appellant.

No. 00-11505

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

2002 U.S. App. LEXIS 26427;16 Fla. L. Weekly Fed. C 130

December 20, 2002, Decided

December 20, 2002, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Middle District of Florida. D. C. Docket No. 99-00208-CR-ORL-22-B. Anne C. Conway, Judge.

DISPOSITION: Vacated and remanded.

COUNSEL: For Romano, Appellant: Ellis Rexwood Curry, Attorney at Law, Tampa, FL.

For United States of America, Appellee: U.S. Attorney's Office, M.D. of Florida, Tampa, FL. Assistant U.S. Attorney/Middle Dist. of FL, Orlando, FL. United States Attorney's Office, Jacksonville, FL.

JUDGES: Before TJOFLAT, RONEY and FAY, Circuit Judges.

OPINIONBY: TJOFLAT

OPINION: TJOFLAT, Circuit Judge:

On October 19, 1999, a Middle District of Florida grand jury returned a two-count indictment against appellant, charging him, in Count One, with possession of a Ruger Mini-14 .223 caliber semi-automatic rifle in September 1998, (n1, footnote 1) after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and, in Count Two, with possession of a destructive device on May 11, 1998, that had not been registered to appellant in the National Firearms Registration and Transfer Records, in violation of 26 U.S.C. §§ 5841, 5845(a)(8), (f), 5861(d), and 5871.

On December 16, 1999, pursuant to a plea agreement, appellant pled guilty to the Count One offense, and agreed to pay $ 400 in restitution to Diane Setordepour. In the agreement, the Government promised not to oppose at sentencing appellant's requests that: (1) the court set the base offense level at level 14, pursuant to United States Sentencing Commission, Guidelines Manual, § 2K2.1(a)(6) (Nov. 1, 1998) (possession of a firearm by a "prohibited person"); (2) that the court adjust the base offense level to level 19 pursuant to U.S.S.G. §§ 2K2.1(b)(1)(A)(offense involving 3-4 firearms), 2K2.1(b)(4) (offense involving a stolen firearm), and 3B1.4 (using a minor to commit a crime); and (3) that the court adjust level 19 downward for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, provided that subsequent adverse information did not render such adjustment "unwarranted."

In the Presentence Investigation Report (PSI), the probation officer assigned to the case fixed the base offense level of the Count One offense at 14 and adjusted it upward to level 19, all in conformance with the plea agreement. The PSI, however, made two other adjustments - each providing a two-level [*3] increase of the base offense level - which the parties had not contemplated, because they related to the Count Two offense, which would be dismissed at sentencing. The probation officer made these adjustments pursuant to U.S.S.G. § 2K2.1(b)(3), because the "offense" involved a destructive device, and U.S.S.G. § 3C1.1, because appellant had obstructed justice. Since the probation officer gave appellant no credit for acceptance of responsibility, the PSI set the adjusted offense level at level 23. Coupled with a criminal history score of V, the Guidelines prescribed a prison sentence for a term of somewhere between 84 to 105 months.

Appellant interposed several objections to the PSI, among them that the adjusted offense level should not have included the two-level increases provided by sections 2K2.1(b)(3) and 3C1.1, since those increases were based on conduct involved in the Count Two offense, which was to be dismissed. The probation officer (who prepared the PSI) stated in the Addendum to the PSI that, due to the constraints of time, he had been unable to hold a "position of parties meeting" (for the purpose of discussing appellant's objections). Because he had been unable to hold [*4] the meeting, the probation officer, in the Addendum, adhered to the PSI as written, noting that the Government "agreed" with his use of sections 2K2.1(b)(3) and 3C1.1 to enhance the base offense level.

At the sentencing hearing, appellant renewed his objection to the sections 2K2.1(b)(3) and 3C1.1 enhancements, arguing that they related solely to the Count Two offense and, therefore, were irrelevant. The prosecutor acknowledged that, in negotiating the plea agreement, the parties had not contemplated that appellant's base offense level would be enhanced for conduct that related not to Count One, but to Count Two, which was not before the court. The prosecutor nonetheless urged the court to apply the two Guidelines enhancements, and the court did so. In addition, the prosecutor urged the court to depart upwardly from the Guildelines sentence range (recommended in the PSI) on the ground that "a criminal history category of five does not adequately represent the defendant's prior criminal conduct . . . we are suggesting . . . that there is a basis to move up to the next level on a guided departure to a criminal history category of six." After saying this, the prosecutor proceeded to [*5] argue at length (in five pages of the sentencing transcript) why the court should depart. The court rejected the prosecutor's request, adopted the factual recitations of the PSI and the Guidelines sentence range it prescribed, and, after affording appellant his right of allocution, sentenced him to a prison term of 105 months and dismissed Count Two of the indictment. Six days after the court imposed sentence, the prosecutor moved the court to order appellant to make the restitution called for in the plea agreement. Twenty-three days later, the court entered the requested restitution order.

In this appeal, appellant contends that the Government breached the plea agreement by urging the court to consider information wholly unrelated to the Count One offense and, based on such information, to enhance the Count One base offense level by a total of four levels pursuant to sections 2K2.1(b)(3) and 3C1.1 of the Guidelines. In response, the Government notes that appellant failed to raise this issue before the district court. The Government is right; hence, we review appellant's contention for plain error. We note plain error if (1) error occurred, (2) the error is plain, (3) affects the [*6] defendant's substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings. United States v. Candelario, 240 F.3d 1300, 1308-09 (11th Cir.), cert. denied, 533 U.S. 922, 121 S. Ct. 2535, 150 L. Ed. 2d 705 (2001).

The Government properly concedes that appellant was denied the entire benefit of his plea agreement because it breached the agreement when the prosecutor strongly endorsed the probations officer's recommendation (in the PSI) that the court enhance appellant's base offense level under sections 2K2.1(b)(3) and 3C1.1 of the Guidelines. The breach bore fruit, in the form of error, in that the two sections related to conduct wholly unrelated to the offense to which appellant had plead guilty, possession of a firearm by a convicted felon. The prosecutor knew that the application of those sections would constitute error. What's more, he knew that by urging the court to apply them, he - that is, the Government - was breaching the plea agreement then and there. And, he must have known that because he was an officer of the court, who regularly appeared before the court as an attorney for the United [*7] States, the court might be inclined to accept his representations as reliable, as constituting a correct statement of the law, and act accordingly - which, indeed, is exactly what the court did. n2

We therefore vacate the district court's judgment, and remand the case for a new sentencing hearing. n3

VACATED and REMANDED, for further proceedings.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 footnote 1 Such possession began on September 26, 1998 and ended on October 4, 1998, when appellant voluntarily surrendered the semi-automatic rifle firearm (along with two other firearms) to deputies of the Orange County, Florida sheriff's office.

n2 The prosecutor's final act - in his effort to obtain a sentence far beyond what the parties contemplated when they executed the plea agreement - was to urge the court to depart from the Guidelines sentence range, by increasing appellant's criminal history category from V to VI. United States v. Burns, 501 U.S. 129, 139, 111 S. Ct. 2182, 2187, 115 L. Ed. 2d 123 (1991), teaches that the defendant must be given "reasonable notice" that the court is contemplating an upward departure from the Guidelines sentence range. In United States v. Hunerlach, 258 F.3d 1282, 1287 (11th Cir. 2001), we explained Burns as follows:

"This notice must specifically identify the ground on which the district court is contemplating an upward departure." [Burns, 501 U.S.] at 138-39, 111 S. Ct. at 2182. This Court has held that Burns requires that the notice "must affirmatively indicate that an upward departure is appropriate based on a particular ground" and that the defendant must be provided with notice "setting forth the potential ground (or grounds) for the upward departure within a 'reasonable' amount of time prior to the sentencing hearing." United States v. Paslay, 971 F.2d 667, 673-74 n.11 (11th Cir. 1992).

In this case, the court had not provided appellant with notice that it was considering a departure. Thus, had the court bowed to the prosecutor's urging and departed from the prescribed Guidelines sentence range, the court would have committed error that was plain. As noted above, though, the court declined the prosecutor's invitation.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*8]

Because the error was "plain," we must ask whether it affected appellant's substantial rights. The sentence range the Guidelines prescribes for an offense level of 23 (the level the court used) and a criminal history category of V is 84 to 105 months. The sentence range prescribed by an offense level of 19 - the level yielded by omitting the section 2K2.1(b)(3) and 3C1.1 enhancements - is 57 to 71 months. We have no difficulty in concluding that the use of the higher sentence range affected appellant's substantial rights. Finally, we ask whether the plain error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. More specifically, the question is whether the prosecutor's conduct produced such affect. We think it obvious that it did.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Appellant challenges the court's untimely entry of the restitution order. Given our disposition, we need not deal with the restitution aspect of the case. The court, on remand, should consider the restitution issue anew. Appellant also contends that he received ineffective assistance at sentencing. His claim is moot; moreover, such claims should be brought in a collateral proceeding under 28 U.S.C. § 2255.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*9]


US v. Romano, 314 F.3d 1279 (11th Cir. 2002)
http://scholar.google.com/scholar_case?case=14620769958996613040&q=related:sBeyRNBo58oJ:scholar.google.com/&hl=en&as_sdt=40000

The above case was also cited by 7 other cases
US v. De La Garza, 516 F. 3d 1266 (11th Cir. 2008)
http://scholar.google.com/scholar_case?case=11228292603546889&hl=en&as_sdt=40000

US v. Velez, 357 F. 3d 239 (2nd Cir. 2004)
http://scholar.google.com/scholar_case?case=4277013719399623869&hl=en&as_sdt=40000

United States v. Woody Daniel Franklin, No. 07-14087 (11th Cir. May 29, 2008)
http://scholar.google.com/scholar_case?case=3081806861712917416&hl=en&as_sdt=40000

United States v. Yasmani Lazo, No. 08-10681 (11th Cir. August 8, 2008)
http://scholar.google.com/scholar_case?case=249649997400426391&hl=en&as_sdt=40000

US v. Geronimo Enrique Gastelum, No. 09-11440 (11th Cir. November 17, 2009)
http://scholar.google.com/scholar_case?case=17876269408864668597&hl=en&as_sdt=40000

United States v. Damaris Cruz, No. 08-10673 (11 Cir. November 17, 2008)
http://scholar.google.com/scholar_case?case=2452031652210934650&hl=en&as_sdt=40000

"Because De La Garza failed to raise this issue before the district court, however, we review for plain error."
- in US v. De La Garza, 2008 and 2 similar citations
"Under plain error review, there must be (1) an error,(2) that is plain,(3) that affects the defendant's substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings." - in US v. Gastelum, 2009 and one similar citation
"Moreover, even if the government's change in position regarding an adjustment for acceptance of responsibility did constitute a breach of the plea agreement, Lazo has not shown plain error-the standard applicable here because Lazo did not voice any objection below to the government's alleged breach of the plea agreement."
- in United States v. Lazo, 2008
"We review an argument that the government breached a plea agreement, raised for the first time on appeal, for plain error."
- in United States v. Cruz, 2008

Ellis Curry www.flickr.com/photos/ellis_curry/

Ellis Curry http://www.flickr.com/people/ellis_curry/

Ellis Rexwood Curry IV of 3004 River Grove Dr Tampa FL 33610 at 813 238-5371 appeal win

Ellis Rexwood Curry IV of 3004 River Grove Dr Tampa FL 33610 at 813 238-5371 appeal win.

Ellis Curry

http://www.flickr.com/photos/48255328@N03/4429656782/

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fl&vol=98-03161&invol=1

http://myfloridalegal.com/alerts.nsf/Print%20Slip%20Opinions/D83BAD656FA4BE5685256801006A7E09?OpenDocument

4th Amendment search & seizure court case win.

Office of the Attorney General
AG number: 10006 Style: Johnson vs. State
Jurisdiction: 2nd DCA

AG HEADNOTE
Verification of tip caller's identity
Even if a caller provides his name, address and phone number, police still
need more to verify the caller's identity before he can be considered
a citizen-informant to justify the search of a criminal suspect, the 2nd DCA
said.

The DCA said a trial court should have granted a motion to suppress evidence
against a man charged with possession of cocaine and drug
paraphernalia. Johnson was arrested after a deputy, acting on a
telephone tip, found him sitting on a curb with a cigarette pack
containing crack cocaine lying approximately a foot away. The DCA concluded
that the informant's information, without further verification, was
insufficient to provide reasonable suspicion for the deputy to question
Johnson. The court cited the Florida Supreme Court's 1998 decision in
J.L. vs. State, which held that innocent detail tips from anonymous
informants must be substantiated in some additional manner.
"In this case, the informant was anonymous because the police did not
independently verify his identity after he called, even though he provided
his name, address, and telephone number. Additionally, the deputy testified
that he did not have any independent reason to believe that
Johnson was selling drugs. Because the anonymous informant's assertion that
Johnson was selling drugs was not substantiated in any
additional manner before (the deputy) initiated the search, he did not have
reasonable suspicion of criminal activity to pat down Johnson," the
DCA said.
Opinion # 10006
www.flhsmv.gov/CASES/Johnson1199.html

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

C. JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.

Appeal from the Circuit Court for Hillsborough County; Judge.

Ellis Rexwood Curry IV, Tampa, for Appellant.

PER CURIAM.
Following a plea of no contest to the charges of possession of cocaine and
possession of drug paraphernalia, Curtis Johnson appeals his
dispositive motion to suppress. We reverse because the law enforcement
officer did not have reasonable suspicion to conduct a Terry stop
based on an anonymous informant's tip or probable cause to arrest Johnson
based on the discovery of cocaine in a cigarette pack.
In April 1998 Deputy Amsler was dispatched regarding a complaint that a
black male in his forties, wearing burgundy pants and a white shirt,
was selling narcotics at a certain address. Although the complainant had
provided the police his name, address, and telephone number, the
police did not corroborate this information prior to dispatching the deputy.
When the deputy arrived at the address, he saw Johnson sitting on
the curb alone, whittling with a knife. Johnson fit the informant's
description of the suspect.
Approximately a foot away from Johnson, Deputy Amsler noticed an empty
cigarette pack with a flip top that was lying open. As the deputy
reached for the cigarette pack, Johnson reached toward it, but abruptly
pulled back. Inside the cigarette pack, the deputy found one small piece
of rock cocaine. Deputy Amsler directed Johnson to stand up and be patted
down. In Johnson's left rear pocket, the deputy felt a long object,
removed it, and discovered a glass pipe with wire stuck into it. Deputy
Amsler put Johnson in his vehicle while he ran a Valtox test, and
determined that the substance was presumptively crack cocaine. The deputy
then arrested Johnson.
On appeal, the State contends that the informant's tip provided reasonable
suspicion to conduct a Terry stop of Johnson. The State also claims
that the discovery of cocaine in the cigarette pack created probable cause
to arrest Johnson. We disagree and address the State's contentions
in turn.
We conclude that the information provided by the informant in this case did
not give Deputy Amsler reasonable suspicion to pat down Johnson.
The Florida Supreme Court has recently held that innocent detail tips from
anonymous informants must be substantiated in some additional
manner. See J.L. v. State, 727 So. 2d 204, 207 (Fla. 1998) (an officer did
not have reasonable suspicion to stop a defendant based solely on
an anonymous informant's description of the defendant's clothing and
location and belief that he was engaging in illegal activity). In this case,
the
informant was anonymous because the police did not independently verify his
identity after he called, even though he provided his name,
address, and telephone number. See Maynard v. State, No. 98-02708 (Fla. 2d
DCA June 4, 1999) (requiring the police to verify a caller's
identity by either dispatching an officer to the caller's address or calling
them back to gain information that would corroborate their identity in
order for the caller to qualify as a citizen-informant). Additionally, the
deputy testified that he did not have any independent reason to believe that
Johnson was selling drugs. Because the anonymous informant's assertion that
Johnson was selling drugs was not substantiated in any
additional manner before Deputy Amsler initiated the search, he did not have
reasonable suspicion of criminal activity to pat down Johnson.
Moreover, the discovery of crack cocaine in the open cigarette pack could
not have provided probable cause to arrest Johnson because there
was no evidence that Johnson ever had possession of the cigarette pack.
Deputy Amsler noticed what appeared to be an empty cigarette pack
on the ground a foot away from Johnson. There was no testimony that the pack
was ever in Johnson's possession or that Johnson claimed
ownership of the pack. Even though Johnson reached toward the cigarette
pack, he pulled back to let the deputy grab it first. The State's
argument that Johnson abandoned the crack cocaine found in the cigarette
pack is also without merit for the same reason. Johnson could not
have abandoned property if there was no evidence that he possessed it in the
first place. Since Deputy Amsler did not have probable cause to
arrest Johnson, any contraband obtained as a result of a search incident to
arrest must be suppressed. See Gnann v. State, 662 So. 2d 406,
408 (Fla. 2d DCA 1995).
Because the anonymous informant's tip did not provide reasonable suspicion
to pat down Johnson and the discovery of cocaine in the cigarette
pack did not provide probable cause to arrest him, the trial court erred in
denying the motion to suppress. Accordingly, we reverse and remand
with directions for the trial court to grant Johnson's motion to suppress.
Reverse and remanded.
THREADGILL, A.C.J., and PARKER and SALCINES, JJ., Concur.

Ellis Curry blogspot
http://www.flickriver.com/places/United+States/Illinois/River+Grove/search/