United States v. Shelton , 91 F. App'x 247 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
3-30-2004
USA v. Shelton
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1186
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"USA v. Shelton" (2004). 2004 Decisions. Paper 902.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1186
___________
UNITED STATES OF AMERICA
Appellee
v.
RAYMOND SHELTON,
Appellant
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 02-189-1)
District Judge: Honorable Harvey Bartle
___________
Submitted Under Third Circuit LAR 34.1(a)
March 12, 2004
BEFORE: SLOVITER, NYGAARD, Circuit Judges.
and SHADUR,* District Judge.
* Honorable Milton I. Shadur, Senior District Judge for the United States District
Court for the Northern District of Illinois, sitting by designation.
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(Filed: March 30, 2004 )
___________
OPINION OF THE COURT
___________
SHADUR, District Judge.
Raymond Shelton (“Shelton”) appeals his sentence of 188 months'
imprisonment followed by three years' supervised release (Supp. App. 24), asserting that
the United States breached the terms of its plea agreement with him when the prosecutor
took a position that called for a base offense level higher than that stipulated in the plea
agreement (“Agreement”). We agree with Shelton and remand for resentencing.
Because the parties are familiar with the facts, we review them only briefly.
Shelton was charged with a variety of crimes, including possession of a firearm by a felon
under 18 U.S.C. §922(g)(1).1 Shelton pleaded guilty to several of those offenses pursuant
to the Agreement, in which the parties expressly stipulated to a Sentencing Guidelines
offense level of 20 for his firearm possession violations (Agreement ¶¶1, 8b). Thereafter
the probation department's Presentence Investigation Report (“PSI”) correctly
recalculated the base offense level for those violations as 26 rather than 20 (PSI ¶37). At
sentencing the prosecutor stated his belief that the PSI rather than the stipulation in the
Agreement had the offense level right and then “ask[ed] for a substantial sentence”
1
Further references to Title 18 provisions will take the form “Section --.”
2
(Supp. App. [Jan. 3, 2003 Tr.] 6-7).
We engage in a plenary review of Shelton's claim that the Assistant United
States Attorney's comments at sentencing were a breach of the Agreement--regardless of
whether or not Shelton raised that issue before the district court (United States v. Rivera,
357 F.3d 290, 294 (3d Cir. 2004)). And for that purpose general principles of contract
law inform what constitutes such a breach (United States v. Nolan-Cooper, 155 F.3d 221,
236 (3d Cir. 1998)).
That being so, the government committed a breach if its actions were
inconsistent with the text of the Agreement or did not comport with what Shelton could
reasonably have understood to be the operative effects of the Agreement (United States v.
Baird, 218 F.3d 221, 229 (3d Cir. 2000). Moreover, recognizing that Shelton was
negotiating a contract that relinquished many of his constitutional rights, we give careful
scrutiny to all the implications of the prosecutor's actions and demand strict adherence to
the terms of the Agreement (United States v. Hayes, 946 F.2d 230, 233 (3d Cir. 1991);
United States v. Queensborough, 227 F.3d 149, 156 (3d Cir. 2000)).
In this instance the prosecutor's position at sentencing conflicted directly
with the government's unambiguous and specific Agreement stipulation that Shelton's
base offense level was 20. That position was correspondingly outside any reasonable
expectations that Shelton could have had about how the United States would conduct
itself pursuant to the Agreement. In short, it was a clear breach (Rivera, 357 F.3d at 295).
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Shelton does not wish to withdraw his guilty plea (S. Br. 21). Hence the
appropriate remedy is specific performance of the Agreement (Nolan-Cooper, 155 F.3d at
241). We therefore vacate Shelton's sentence and remand for resentencing by another
district judge (Rivera, 357 F.3d at 297), at which time the government must inform the
court that it is bound by the Agreement but the court may independently determine the
appropriate sentence (Nolan-Cooper, 155 F.3d at 238).
Because remand is warranted based on the government's breach of the
Agreement alone, there is no need to delve too deeply into Shelton's other contentions of
error (see Rivera, 357 F.3d at 293 n.2). But our de novo review of the Guidelines (United
States v. Butch, 256 F.3d 171, 177 (3d Cir. 2001)) reveals that the district judge's decision
to adopt the PSI's calculation of Shelton's base offense level of 26 for his Section
922(g)(1) violation was correct.
Section 922(g)(1) makes it unlawful for any person “who has been
convicted in any court of a crime punishable by imprisonment for a term exceeding one
year” to possess a firearm or ammunition. For that purpose Section 921(a)(20)(B)
(emphasis added) excludes “any State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of two years or less” from the
definition of “crime punishable by imprisonment for a term exceeding one year.” But the
Guideline applicable to a Section 922(g)(1) violation employs a different definition: It
increases the base offense level of a defendant who committed the firearm offense at
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issue “subsequent to sustaining at least two felony convictions” of a specified nature
(Guideline §2K2.1(a)(1)), with a “felony conviction” being defined by Application Note 5
to Guideline §2K2.1 (emphasis added) as any “prior adult federal or state conviction for
an offense punishable by death or imprisonment for a term exceeding one year, regardless
of whether such offense is specifically designated as a felony....”
Shelton argues that those provisions are in conflict and that the statutory
definition must control over the Guideline definition. From that premise he contends that
his prior conviction for simple assault (excluded from consideration under Section
921(a)(2)(B), but included for Guideline purposes under Application Note 5 to Guideline
§2K2.1) cannot be considered when determining his Section 922(g)(1) base offense level
calculation (United States v. LaBonte, 520 U.S. 751, 757 (1997)).
That argument is flawed because the two definitions have very different
purposes: W hile the statute addresses only when an individual will be initially liable
under Section 922(g)(1), once such initial liability is established the Guidelines consider
the impact that a variety of factors (including prior felony convictions) will have on the
defendant's eventual punishment. Those different purposes persuade us that the texts are
not in conflict but can rather coexist peacefully, each having a full operative effect in its
own realm (United States v. Morris, 139 F.3d 582, 583-84 (8 th Cir. 1998)(per curiam); but
cf. United States v. Palmer, 183 F.3d 1014, 1017-18 (9 th Cir. 1999)).
In sum, we vacate Shelton's sentence and remand to the district court for
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resentencing by a different judge in accordance with this opinion.
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