United States v. Hemphill ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0265n.06
Filed: April 10, 2007
No. 06-1154
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
RONALD CORNELIOUS HEMPHILL, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: ROGERS and GRIFFIN, Circuit Judges; and RUSSELL, District Judge.*
PER CURIAM. Ronald Cornelious Hemphill pleaded guilty to possessing with intent to
distribute and distributing cocaine base. In the plea agreement, Hemphill promised to provide
assistance to law enforcement, and, in return, the Government promised to evaluate such assistance
in good faith in determining whether to recommend an offense-level reduction based on substantial
assistance under U.S.S.G. § 5K1.1. Because the Government did not determine whether Hemphill
provided substantial assistance and instead merely refused to file a § 5K1.1 motion, we reverse
Hemphill’s sentence and remand for resentencing.
Background
*
The Honorable Thomas B. Russell, United States District Judge for the Western District of
Kentucky, sitting by designation.
No. 06-1154
United States v. Hemphill
In January and February of 2005, Hemphill sold powder and crack cocaine to two individuals,
a confidential informant and an officer of the Michigan State Police. On March 17, 2005, a grand
jury returned an indictment against Hemphill, charging him with possession with intent to distribute
and distribution of more than five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) &
(b)(1)(B)(iii) (Count One) and possession with intent to distribute and distribution of more than fifty
grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(iii) (Count Two).
On August 9, 2005, Hemphill pleaded guilty to Count Two of the indictment pursuant to a
written plea agreement. In the plea agreement, Hemphill agreed to plead guilty to Count Two of the
indictment and agreed “to fully cooperate with the Drug Enforcement Administration, the Michigan
State Police, the U.S. Attorney’s Office, and any other law enforcement agency in their investigation
of the changes contained in [the] indictment or any Superseding indictment as well as the
investigation of crimes over which they have actual or apparent jurisdiction.” JA 23 (Plea
Agreement ¶¶ 1,5). The plea agreement required Hemphill “to voluntarily come forward with any
and all information which [he] should reasonably know will assist in the investigation of other
criminal activity.” JA 24 (Plea Agreement ¶ 5). In exchange, the Government agreed to move to
dismiss Count One of the indictment and “to make a good faith evaluation of [Hemphill’s]
cooperation under this agreement in determining whether to file a motion for reduction of sentence
pursuant to U.S.S.G. 5K1.1 and/or Federal Rule of Criminal Procedure 35(b).” JA 25 (Plea
Agreement ¶ 6A,D). The plea agreement went on to state the following:
-2-
No. 06-1154
United States v. Hemphill
The Defendant fully understands that such a motion may be made pursuant to law if,
and only if, the Defendant fully cooperates with the Government and materially and
substantially assists the Government in the investigation or prosecution of others.
The determination of whether the Defendant has provided substantial assistance to
the United States, or to designated state or local law enforcement authorities, will be
made in the sole discretion of the U.S. Attorney’s Office. The Defendant fully
understands that this paragraph is not a promise by the Government to file such a
motion, but, rather, a promise to use good faith in evaluating the Defendant’s
assistance to the Government in the prosecution of others to determine whether a
motion should be filed. . . .
JA 25 (Plea Agreement ¶ 6.D).
On January 10, 2006, Hemphill was sentenced. At the sentencing hearing, the Government
told the court that Hemphill cooperated with law enforcement officers, but that the Government
would not file a § 5K1.1 motion for substantial assistance because officers did not take the time to
verify the information that Hemphill provided:
I was just going over this morning the information the defendant had given
to the law enforcement officers in the form of a proffer last May. And as I’m going
over it, it’s very rich in detail about his past involvement. . . .
I’m surprised that law enforcement didn’t do a lot more with the information
that he gave, and I suspect it’s because it was given to local law enforcement officers.
There were no DEA agents in Lansing at the time that would follow up on it, and the
information dealt with drug trafficking in Chicago and some people that were caught
in Nebraska. So there is no 5K motion, but I want the Court to know that defendant,
I believe, was extremely candid . . . .
After disposing of an objection not relevant to this appeal, the district court sentenced Hemphill to
140 months of imprisonment—the bottom of the guideline range of 140 to 175 months.
Discussion
-3-
No. 06-1154
United States v. Hemphill
As an initial matter, this court may review whether the Government breached the plea
agreement notwithstanding the fact that Hemphill waived his right to appeal in that agreement. For
example, in United States v. Swanberg, 370 F.3d 622, 625-29 (6th Cir. 2004), this court permitted
a defendant to contend on appeal that the government breached a plea agreement notwithstanding
the fact that the defendant knowingly and voluntarily waived his right to appeal. Thus, the fact that
Hemphill waived his right to appeal is not an impediment to this court’s review of whether the
Government breached the plea agreement.
Because Hemphill failed to object at his sentencing hearing to the Government’s purported
breach of the plea agreement, we review the issue of whether the Government breached the plea
agreement for plain error. See Swanberg, 370 F.3d at 627. Under plain error review, this court
reverses only if “(1) there is an error; (2) that is plain; (3) which affected the defendant’s substantial
rights; and (4) that seriously affected the fairness, integrity or public reputation of the judicial
proceedings.” Id. (internal quotations omitted). Where the government’s breach of a plea agreement
results in a defendant receiving a higher sentence than he otherwise would have had the government
not breached the agreement, the error affects the defendant’s substantial rights and seriously affects
the fairness, integrity, or public reputation of the proceedings. See id. at 628-29. This is true here
even though had the Government exercised discretion, it might not have filed a § 5K1.1 motion, and
even had the Government filed the motion the judge might not have followed the Government’s
recommendation. See United States v. Barnes, 278 F.3d 644, 648-49 (6th Cir. 2002). Thus, plain
-4-
No. 06-1154
United States v. Hemphill
error review in this case collapses into an inquiry of whether the Government plainly breached the
plea agreement.
The Government breached its duty under the plea agreement to decide whether Hemphill’s
cooperation and assistance constituted “substantial assistance.” Even when the government retains
discretion in deciding whether a defendant provided substantial assistance, the government must
exercise that discretion and cannot simply decline to file a § 5K1.1 motion. In United States v.
Lukse, 286 F.3d 906, 909 (6th Cir. 2002), defendants provided information to the government that
led to the prosecution of individuals previously unknown to the government. The plea agreement
required the government to file a § 5K1.1 motion if, in the government’s sole discretion, the
defendants provided “substantial assistance in the investigation or prosecution” of others. Id. at 908.
After the government initially concluded that defendants had provided substantial assistance,
defendants were caught smoking marijuana in prison and the government decided not to file § 5K1.1
motions because defendants no longer would be credible witnesses in the trials of others. Id. at 911.
This court remanded for resentencing because the government “did not determine whether the
defendants satisfied their duties with respect to parts of the plea agreement,” i.e., the parts requiring
the government to file § 5K1.1 motions if the defendants provided assistance in the investigation of
suspects (not merely the prosecution). Id. at 912-13. Importantly, the court noted that even though
the government had “complete discretion” to determine whether defendants provided substantial
assistance, the government still “had to analyze and determine whether substantial assistance had
been rendered; they could not simply leave the question unanswered.” Id. at 912.
-5-
No. 06-1154
United States v. Hemphill
The Government here had a similar obligation to evaluate Hemphill’s cooperation and
assistance and determine whether Hemphill provided substantial assistance. There is no indication
that the Government made such a determination, only that the Government declined to file a § 5K1.1
motion. Under Lukse, the government must conclude that the defendant did not offer substantial
assistance before declining to file a § 5K1.1 motion. 286 F.3d at 912; see also United States v.
Quach, 302 F.3d 1096, 1100, 1002-03 (9th Cir. 2002) (noting that the government “failed to make
the requisite determination of whether” the defendant provided substantial assistance where the
government failed to file a motion under § 5K1.1 because a co-defendant’s case was ongoing and
the government claimed that the defendant had therefore not completed his cooperation). Thus,
because the Government here failed to evaluate Hemphill’s cooperation and assistance and determine
that Hemphill did not provide substantial assistance, it breached the plea agreement’s requirement
that it exercise discretion.
Conclusion
For the foregoing reasons, we REVERSE Hemphill’s sentence and REMAND the case so
that the Government can evaluate in good faith the assistance that Hemphill provided, determine
whether that assistance was “substantial,” and decide whether to make a motion for an offense-level
reduction based on U.S.S.G. § 5K1.1.
-6-