United States v. Tommy Bennett, Jr. ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4422
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TOMMY LEWIS BENNETT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:08-cr-00369-NCT-2)
Submitted: January 5, 2012 Decided: February 10, 2012
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Paul A. Weinman, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tommy Lewis Bennett, Jr., appeals his 102-month
sentence following his guilty plea to conspiracy to distribute
cocaine base, in violation of 21 U.S.C. § 846 (2006). On
appeal, Bennett argues that (1) the district court lacked
jurisdiction to hear his case because it was later discovered
that an Assistant United States Attorney (“AUSA”) who signed the
indictment had had his bar license administratively suspended;
(2) the Government committed a violation pursuant to Brady v.
Maryland, 373 U.S. 83 (1963), in failing to inform him of the
AUSA’s bar status; and (3) the district court imposed an
unreasonable sentence. We affirm.
Bennett first argues that the AUSA’s signature on the
indictment deprived the district court of jurisdiction. A
federal court is without jurisdiction in a criminal prosecution
where the Government lacks an authorized representative. See
United States v. Providence Journal Co., 485 U.S. 693, 708, 108
S. Ct. 1502, 1511 (1988). Further, Federal Rule of Criminal
Procedure 7(c) requires that an indictment “be signed by an
attorney for the government.” Here, the United States Attorney,
an authorized representative of the Government, also signed the
indictment. The unauthorized AUSA did not participate in any
further proceedings. Accordingly, the errant signature was
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superfluous and therefore did not deprive the district court of
jurisdiction to hear Bennett’s case.
Bennett also contends that the Government committed a
Brady violation in failing to disclose the AUSA’s bar status
prior to the entry of Bennett’s guilty plea. “In Brady, the
Supreme Court announced that the Due Process Clause requires the
government to disclose ‘evidence favorable to an accused upon
request . . . where the evidence is material either to guilt or
to punishment.’” United States v. Caro, 597 F.3d 608, 619 (4th
Cir. 2010) (quoting Brady, 373 U.S. at 87). To prevail on a
Brady claim, a defendant must demonstrate that the evidence was
exculpatory or impeaching in nature, was material to the
defense, and was suppressed by the government either willfully
or inadvertently. United States v. Moussaoui, 591 F.3d 263, 285
(4th Cir. 2010).
Here, as the district court found, the evidence
suggested that the Government did provide defense counsel with
accurate information regarding the AUSA’s professional standing.
Any failure by defense counsel to relay that information to
Bennett personally is not attributable to the Government. *
*
Bennett does not raise an ineffective assistance of
counsel claim; moreover, ineffective assistance of counsel does
not appear conclusively from the record. See United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
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Moreover, the information was not exculpatory evidence material
to either guilt or punishment. Accordingly, the Government did
not commit a Brady violation.
Finally, Bennett challenges the reasonableness of his
102-month sentence on the grounds that the district court failed
to provide an adequate explanation and erred in refusing to
grant a departure greater than fifteen percent pursuant to the
Government’s substantial assistance motion under U.S. Sentencing
Guidelines Manual (“USSG”) § 5K1.1 (2008). We review a sentence
imposed by a district court under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 46
(2007); United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir.
2010) (abuse of discretion standard of review applicable when
defendant properly preserves a claim of sentencing error in the
district court “[b]y drawing arguments from [18 U.S.C.] § 3553
[(2006)] for a sentence different than the one ultimately
imposed”). We begin by reviewing the sentence for significant
procedural error, including such errors as “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence — including
an explanation for any deviation from the Guidelines.” Gall,
552 U.S. at 51.
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“When rendering a sentence, the district court ‘must
make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50 (emphasis omitted)).
Accordingly, a sentencing court must apply the relevant
§ 3553(a) factors to the particular facts presented and must
“state in open court” the particular reasons that support its
chosen sentence. Id. (internal quotation marks omitted). The
court’s explanation need not be exhaustive; it must be
“sufficient ‘to satisfy the appellate court that the district
court has considered the parties’ arguments and has a reasoned
basis for exercising its own legal decisionmaking authority.’”
United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007)
(alterations omitted)).
Here, the district court’s explanation was adequate.
Though it must provide an explanation for its decision, in
departing below the statutory mandatory minimum pursuant to USSG
§ 5K1.1, a court is permitted to consider only “the nature,
extent, and significance of the defendant’s assistance.” United
States v. Pearce, 191 F.3d 488, 493 (4th Cir. 1999); see United
States v. Fennell, 592 F.3d 506, 509 (4th Cir. 2010) (noting
that, under § 5K1.1, sentencing judge has discretion to award
reduction “consistent with the non-exclusive list of factors,
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all related to the nature and quality of a defendant’s
assistance.”). The court’s discussion with counsel reflected
its consideration of Bennett’s assistance and both parties’
arguments regarding the departure.
We further hold that the district court’s fifteen
percent departure was reasonable. In support of his request for
a greater departure, Bennett presented only his own testimony
and that of a police officer. The officer acknowledged that
Bennett was cooperative, but stated that the information Bennett
provided was not productive to his agency. In the absence of
more extensive and reliable testimony, the district court did
not err in granting the Government’s request for a fifteen
percent departure. See USSG § 5K1.1 cmt. n.3 (“Substantial
weight should be given to the government’s evaluation of the
extent of the defendant’s assistance, particularly where the
extent and value of the assistance are difficult to
ascertain.”). Thus, we find Bennett’s sentence to be
reasonable.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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