United States v. Frank Eugene Kerley , 230 F. App'x 919 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 10, 2007
No. 05-15031 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60301-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK EUGENE KERLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 10, 2007)
Before BIRCH, BLACK and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Frank E. Kerley appeals his conviction and sentence
for conspiracy to possess with intent to distribute 100 or more marijuana plants, in
violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2. After review, we
affirm.
I. BACKGROUND
Kerley pled guilty pursuant to an oral plea agreement. During the plea
hearing, the parties entered the terms of the oral plea agreement into the record.
Under the terms, Kerley agreed to plead guilty to the drug conspiracy count in
exchange for the government dismissing a drug possession count and not objecting
to Kerley’s receiving a guidelines adjustment for acceptance of responsibility.
During the plea hearing, Kerley’s counsel summarized the substance of the
plea negotiations, stating, among other things, that the government had agreed not
to object to Kerley’s request for safety-valve relief pursuant to U.S.S.G. § 5C1.2,
as follows:
[Kerley’s Counsel]: . . . [H]e is pleading to one count of conspiracy, . .
. and I also understand based on the terms of our – either they are
going to agree or not object to the fact by coming forward he is
entitled to acceptance of responsibility. The Government is not going
to object or possibly agree, depending on the term of art, the guideline
safety valve would probably apply if he has the one point that we
think that he has as far as prior conviction, and I think the
Government would also probably agree or not object, actually,
probably affirmatively agree that he is still in the posture of based
upon his debriefings and information he is still in a posture of reaping
that information into a possible 5K1 or Rule 35.
2
The district court stated that it had reservations about the parties’ decision to enter
into an oral plea agreement and directed the parties to put every term of the plea
agreement in the record. In response, the government clarified that it was making
no promises with regard to whether Kerley was eligible for safety-valve relief
under U.S.S.G. § 5C1.2, as follows:
[Government]: If I may, Your Honor, the only thing the Government
is agreeing to with respect to Frank Eugene Kerley is two level
acceptance for coming forward if the court does accept and adjudicate
guilty and the dismissal of Count 2. All of the other things are
pending concerning criminal history. I cannot make agreements or
obligate the Government with respect to whether he is eligible for
safety valve. There are only two agreements to recommend two levels
for acceptance, as well as, dismissal of Count 2.
When the district court asked Kerley’s counsel if this was his understanding of the
plea agreement, Kerley’s counsel replied that it was, as follows:
THE COURT: Mr. Gelety, is that your understanding?
[Kerley’s counsel]: It is. She can’t agree – I hate to say
anything nice about her, she can’t agree because, in fairness, we need
to firm up that one point on the criminal history. I am comfortable
saying if it is one point as I anticipate I am comfortable she will not
object or she will agree the safety valve applies, is that fair enough?
The district court then asked Kerley directly whether that was his understanding of
the plea agreement, and Kerley responded that it was.
Kerley’s Presentence Investigation Report (“PSI”) stated that Kerley, along
with his codefendant father and brother, had operated five marijuana grow houses
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with more than 200 plants. The PSI characterized Kerley as involved in the entire
operation, responsible for establishing the houses, recruiting his family members
and distributing the marijuana while receiving the majority of the profits.
Consequently, the PSI recommended a two-level enhancement under U.S.S.G. §
3B1.1(c) as an organizer. Additionally, because Kerley was an organizer/manager
of the offense, the PSI concluded that Kerley was ineligible for safety-valve relief,
despite the fact that Kerley had provided a truthful safety-valve statement to the
government. With a total offense level of 17 and a criminal history category of I,
the PSI calculated Kerley’s advisory guidelines range as 24 to 30 months.
However, the PSI noted that, under 21 U.S.C. § 841(b)(1)(B), the statutory
mandatory-minimum sentence of 60 months’ imprisonment applied and became
the guideline sentence.
Kerley objected to the organizer enhancement and the safety-valve
disqualification. Kerley argued that the government had breached the plea
agreement by providing information to the probation office and the sentencing
court that resulted in the PSI’s recommendation for the organizer enhancement and
the denial of safety-valve relief. Kerley also objected to various factual allegations
in the PSI relating to Kerley’s role in the offense, including the assertions that he
was responsible for establishing the marijuana-growing operation, that he supplied
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equipment and provided instruction on the operation of the grow houses, that he
recruited others and that he had profited significantly from the operation.
At the sentencing hearing, the government called Drug Enforcement Agency
special agent Dean Wolpert. Wolpert testified that during interviews with Kerley’s
codefendants, Wolpert learned that Kerley had approached them to participate in
the marijuana-growing scheme, provided them with materials and plant “clones,”
checked on plant growth, processed the product, sold the product to a distributor
and received a percentage of the profits from the marijuana grown in their
residences. To counter the government’s evidence, Kerley called his father, who
testified that the operation was “a family thing” with “no boss” and “everybody in
charge of their own operation.” However, Kerley’s father admitted on cross-
examination that Kerley provided plant “clones” and equipment, assisted in each
harvest, distributed the product and was the only defendant involved in all five
grow houses.
After hearing arguments from counsel, the district court found that the plea
agreement did not include any terms relating to an organizer/manager enhancement
under § 3B1.1(c) or a safety-valve reduction under § 5C1.2. In addition, the
district court concluded that Kerley’s actions in recruiting, providing plants and
equipment, monitoring the plants’ growth, harvesting, processing and distributing
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the product, and sharing in his codefendants’ profits categorized Kerley as an
organizer/manager under § 3B1.1(c) and thus rendered him ineligible for safety-
valve relief. The district court sentenced Kerley to the statutory mandatory-
minimum 60-month sentence. Kerley filed this appeal.
II. DISCUSSION
A. Breach of the Plea Agreement
On appeal, Kerley argues that the government breached the oral plea
agreement by presenting evidence to support a finding that he was an
organizer/manager of the conspiracy pursuant to § 3B1.1(c) and thus ineligible for
safety-valve relief.1
The government is bound by promises it makes to a defendant in order to
induce the defendant to plead guilty. United States v. Johnson, 132 F.3d 628, 630
(11th Cir. 1998). In determining whether the government breached the plea
agreement, we first determine the scope of the government’s promises. Raulerson
v. United States, 901 F.2d 1009, 1011 (11th Cir. 1990). Whether the government
violated the promises of the plea agreement is judged according to the defendant’s
reasonable understanding at the time that he entered his plea. United States v.
Taylor, 77 F.3d 368, 370 (11th Cir. 1996).
1
We review de novo whether the government has breached a plea agreement. United
States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).
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Here, the record shows that the oral plea agreement consisted of three
unambiguous terms: (1) Kerley would plead guilty to one count of conspiracy; (2)
the government would dismiss the count of possession; and (3) the government
would not object to Kerley receiving a two-point reduction for acceptance of
responsibility. The plea agreement contained no restrictions on the government
with regard to a role enhancement under § 3B1.1(c) or safety-valve relief.
Furthermore, Kerley concurred with the government’s statement during the plea
hearing that the government was making no promise with regard to Kerley’s
eligibility for a safety-valve reduction. All references to the possibility of Kerley
receiving a safety-valve reduction at sentencing were couched in conditional
language and clearly did not constitute a promise by the government not to object
should Kerley seek safety-valve relief. Therefore, the government did not breach
the plea agreement by presenting evidence regarding Kerley’s organizer role in the
offense.
B. Organizer Role Enhancement
Kerley also argues that the district court erred in finding that he was an
organizer pursuant to U.S.S.G. § 3B1.1(c) and that Kerley, therefore, did not meet
the criteria for a safety-valve reduction, pursuant to 18 U.S.C. § 3553(f) and
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U.S.S.G. § 5C1.2.2
The safety-valve provision of § 5C1.2 implements 18 U.S.C. § 3553(f), and
allows a court to sentence a defendant without regard to the statutory mandatory-
minimum sentence if the defendant meets five criteria. United States v. Brownlee,
204 F.3d 1302, 1304 (11th Cir. 2000).3 There is no dispute that Kerley met four of
the five criteria. The only issue in this appeal is whether Kerley was an “organizer,
leader, manager, or supervisor of others in the offense.” 18 U.S.C. 3553(f);
U.S.S.G. § 5C1.2(a). If he was, then the two-point enhancement under § 3B1.1(c)
was proper, and Kerley was ineligible for safety-valve relief.4
Section 3B1.1(c) provides for a two-level increase in a defendant’s offense
level if he was “an organizer, leader, manager, or supervisor in any criminal
2
We review the district court’s factual determinations in denying a safety-valve reduction
for clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). We also review for
clear error the district court’s determination of a defendant’s role in the offense. United States v.
Mesa, 247 F.3d 1165, 1168 (2001). However, the district court’s application of the guidelines to
its factual findings is reviewed de novo. United States v. Trujillo, 146 F.3d 838, 847 (11th Cir.
1998).
3
To be eligible for a safety-valve reduction, the defendant must show that: (1) he has no
more than one criminal history point; (2) he did not use violence or threats of violence or possess
a firearm in connection with the offense; (3) the offense did not result in death or serious bodily
injury; (4) he was not an organizer, leader, manager or supervisor of the offense “as determined
under the sentencing guidelines” and was not engaged in a continuing criminal enterprise; and
(5) he truthfully provided to the government all information and evidence about the offense. 18
U.S.C. § 3553(f)(1)-(5); U.S.S.G. § 5C1.2(a)(1)-(5).
4
While the government bears the burden of proving the applicability of a § 3B1.1(c)
managerial role enhancement, United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993), the
defendant bears the burden of proving his eligibility for the safety-valve reduction. Cruz, 106
F.3d at 1557.
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activity . . . .” U.S.S.G. § 3B1.1(c). “[T]he assertion of control or influence over
only one individual is enough to support a § 3B1.1(c) enhancement.” United
States v. Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000); see also U.S.S.G. § 3B1.1
cmt. n.2 (“To qualify for an adjustment under this section, the defendant must have
been the organizer, leader, manager, or supervisor of one or more other
participants.”). Factors to consider in determining whether the defendant qualifies
for the § 3B1.1(c) role enhancement include: (1) the exercise of decision-making
authority; (2) the nature of participation; (3) the recruitment of accomplices; (4) the
claimed right to a larger share of the fruits of the crime; (5) the degree of
participation in planning or organizing the offense; (6) the nature and scope of the
illegal activity; and (7) the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1, cmt. n.4.
Here, the record shows that the district court did not clearly err in
concluding that Kerley was an organizer/manager under § 3B1.1(c). The
government presented evidence that Kerley had great influence over his
codefendants and played a significant role in organizing and maintaining the
marijuana-growing operation. Kerley initiated the scheme to grow marijuana
plants at the five houses; recruited his codefendants to join in the scheme; provided
his codefendants with equipment and plants; checked on their operations;
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harvested and processed the marijuana from their plants and took it to a distributor;
and took a significant share of his codefendants’ profits from the sales.
Because Kerley was an organizer/manager, the district court also did not
clearly err in finding that Kerley was ineligible for safety-valve relief.
AFFIRMED.
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