United States v. Sharp, Vincent ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1449
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VINCENT SHARP,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 04 CR 5—John Daniel Tinder, Judge.
____________
ARGUED SEPTEMBER 27, 2005—DECIDED FEBRUARY 1, 2006
____________
Before FLAUM, Chief Judge, and BAUER and SYKES,
Circuit Judges.
BAUER, Circuit Judge. Vincent Sharp pleaded guilty to
one count of distribution of five kilograms or more of
a substance containing cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A)(ii). The district court sen-
tenced Sharp to 235 months’ imprisonment. On appeal,
Sharp claims that the district court erred by failing to
give notice of its intention to deviate from the presen-
tence report (PSR), and that his sentence was unreasonable.
We affirm.
2 No. 05-1449
I. Background
On January 14, 2004, a grand jury indicted Sharp on one
count of distribution of five kilograms or more of a sub-
stance containing cocaine and one count of possession
with intent to distribute 500 grams or more of a mixture
containing cocaine. On March 24, 2004, a plea agreement
and petition to enter a plea of guilty were filed in the
district court. Sharp agreed to plead guilty to the distribu-
tion count with an applicable base offense level of 34
pursuant to U.S.S.G. § 2D1.1(c)(3). The parties reserved the
right to argue over an adjustment for possession of
a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1), and
agreed that the court should grant a two-level reduction if
Sharp continued to accept responsibility for his criminal
conduct.
Sharp appeared at the April 9, 2004 district court plea
hearing with counsel Michael T. Conway. Under oath,
Sharp acknowledged that the plea agreement accurately
reflected the parties’ agreement concerning the applica-
tion of the Sentencing Guidelines. He also told the court
that he understood that the guilty plea would be bind-
ing irrespective of the court’s determination of the ap-
plicable Guidelines.
The government called Detective Rob Foster of the
Metropolitan Drug Task Force to testify to the factual basis
for the guilty plea. In July 2003, he received information
that Sharp was distributing large amounts of drugs from
his residence in Indianapolis. After several con-
trolled purchases of cocaine from Sharp, Detective Foster
applied for and obtained a search warrant for the residence.
Officers executed the warrant when Sharp was at home on
August 11, 2003. After receiving Miranda warnings, Sharp
told Detective Foster that he had approximately one
kilogram of cocaine, a firearm, and drug paraphernalia in
the residence. During the search, officers located 1126
No. 05-1449 3
grams of cocaine, a firearm, a quantity of marijuana, digital
scales, plastic baggies, and more than $13,000 cash.
After his arrest and transport to the police station, Sharp
told Detective Foster that he had purchased the cocaine the
day before for approximately $23,000. He told Detective
Foster that he had been selling cocaine for approximately
fourteen years and that he had distributed approximately
one kilogram of cocaine every month for the past year and
a half. Sharp stated that he also sold crack cocaine.
At the plea hearing, Conway stated that Sharp had no
objections to the factual basis presented by Detective
Foster, except that he denied being involved in the enter-
prise for fourteen years. Instead, Sharp claimed to have
been employed in his current position for fourteen years.
The following exchange then transpired:
The Court: So there is a dispute about the length of
his involvement in the activity as opposed
to what the officer testified?
Mr. Conway: Right. We’re not saying he didn’t say
that. Maybe just in the confusion . . .
The Court: Other than that, is that pretty much the
way it happened, Mr. Sharp?
Mr. Sharp: Yes.
The district court accepted Sharp’s guilty plea, adjudged
Sharp guilty of the distribution count, and ordered the
preparation of a PSR.
The resulting PSR indicated that Sharp was respon-
sible for 19.216 kilograms of cocaine and 305.76 grams
of marijuana, and that his unadjusted base offense level
was 34. The amount of cocaine was based on Sharp’s
statement to Detective Foster that “he had been dealing
approximately one kilogram of cocaine every month for
the past year and a half.” The PSR included a two-level
4 No. 05-1449
upward adjustment for possessing a firearm during the
commission of the offense and a three-level downward
adjustment for acceptance of responsibility. Sharp ex-
pressed only the following two objections to the PSR:
The defendant objects to paragraph 19 of the presen-
tence report on the grounds that § 2D1.1(b)(1) does
not apply, as the firearm found in the defendant’s
bedroom has no connection or nexus to the narco-
tics trafficking. The defendant would also note a typo-
graphical error in paragraph 48 of the presen-
tence investigation report in that 1982 should be 1989.
Sharp appeared with Conway at the January 26, 2005
sentencing hearing at the district court. Conway examined
Sharp to establish that he used and kept the gun independ-
ently of any drug deals. On cross-examination, Sharp for
the first time claimed that the PSR was incorrect and that
he was not responsible for the 19 kilograms of cocaine. He
also denied telling Detective Foster that for the past year
and a half he had received one kilogram of cocaine every
month. Sharp gave the following answers:
Q. . . . do you remember telling him you had been
dealing in the kilogram level for a year and a
half?
A. No.
Q. Okay, so that is an incorrect statement?
A. Right.
***
Q. What is alleged in the presentence report . . . is
that you are responsible for 19—over 19 kilo-
grams of cocaine.
A. No.
No. 05-1449 5
Q. Well, the presentence report says that. Is that not
true?
A. Nineteen kilograms?
Q. Yes, sir.
A. No, that is not true.
Instead, Sharp testified that he had bought and sold
only five kilograms of cocaine and that he had only been
dealing drugs for a year and a half. After Sharp’s testimony,
the government played an audiotape recording of Sharp’s
post-arrest statement to Detective Foster. The tape con-
firmed the Detective’s testimony that Sharp told him that
he sold one kilogram of cocaine per month for the past year
and a half, and that he had been dealing drugs “off and on,
for 14 years.”
Based on Sharp’s conduct at the sentencing hearing, the
government argued that he was no longer accepting respon-
sibility for his criminal conduct and was, by providing the
district court with materially false information, attempting
to obstruct justice. The court denied Sharp any adjustment
for acceptance of responsibility and gave him a two-level
enhancement for obstruction of justice. After setting the
total offense level at 38 and the guideline range at 235 to
293 months, the court sentenced Sharp to a term of 235
months’ imprisonment, followed by a term of five years
supervised release. On February 3, 2005, Sharp filed a
notice of appeal, arguing: (1) that the district court was
required to give notice prior to the sentencing hearing that
it intended to deviate from the PSR; and (2) that the
sentence of 235 months was unreasonable.
II. Discussion
A. Notice
Sharp primarily argues that he was entitled to notice,
prior to the sentencing hearing, that the district court
6 No. 05-1449
intended to reject the PSR recommendation of acceptance of
responsibility and to impose instead an enhance-
ment for obstruction of justice. Although this Court ordi-
narily reviews for clear error a district court’s decision not
to provide notice of its intention to depart from the guide-
lines, the defendant’s failure to object at sentencing re-
sults in plain error review. See United States v. Otis, 107
F.3d 487, 489 (7th Cir. 1997); United States v. Jackson, 32
F.3d 1101, 1104 (7th Cir. 1994). Plain error exists when
there is an error which is clear or obvious and which affects
substantial rights. United States v. Sumner, 265 F.3d 532,
539 (7th Cir. 2001). At a minimum, the error must be clear
under current law. Id. (quoting United States v. Olano, 507
U.S. 725, 734 (1993)).
Rule 32 of the Federal Rules of Criminal Procedure
provides:
Before the court may depart from the applicable sen-
tencing range on a ground not identified for departure
either in the presentence report or in a
party’s prehearing submission, the court must give
the parties reasonable notice that it is contemplat-
ing such a departure. The notice must specify any
ground on which the court is contemplating a depar-
ture.
Fed. R. Crim. P. 32(h).1 The Sentencing Guidelines simi-
1
Other Courts of Appeals have considered whether the notice
requirement of Rule 32(h) survives United States v. Booker, 125
S.Ct. 738 (2005), in which the Supreme Court rendered the
Sentencing Guidelines advisory. See, e.g., United States v. Monroy,
135 Fed. Appx. 190, 193 (10th Cir. 2005) (holding that, post-
Booker, departures remain “subject to Rule 32(h)”); but cf. United
States v. Simmerer, 2005 WL 3068095, at *3 (11th Cir. 2005)
(holding that district court’s failure to comply with Rule 32(h)’s
(continued...)
No. 05-1449 7
larly require that the court provide the parties with an
adequate opportunity to present information when a
sentencing factor is reasonably in dispute. U.S.S.G.
§ 6A1.3(a). In Burns v. United States, the Supreme Court
held that “before a district court can depart upward on
a ground not identified as a ground for upward depar-
ture either in the presentence report or in a prehearing
submission by the Government, Rule 32 requires that
the district court give the parties reasonable notice that it is
contemplating such a ruling.” Id. at 138. The notice must
“specifically identify” the reason for the departure. Id. at
138-39.
Although the notice requirement for adjustments is
“less exacting than the one applicable to departures,” Rule
32 “mandates that the defendant receive some notice
of potential adjustments.” United States v. Thomas, 969
F.2d 352, 356 (7th Cir. 1991). Extending the Burns reason-
ing, this Court has held that “simply being aware of facts
which may warrant an adjustment is not sufficient to
satisfy Rule 32’s notice requirement.” United States v.
Jackson, 32 F.3d 1101, 1108 (7th Cir. 1994). Instead,
defense counsel must have a full opportunity to challenge
disputed factors relating to an adjustment within the
Guidelines after being informed that they will be at issue at
sentencing. Id. If the PSR or the prosecutor’s recommenda-
tion does not identify the basis for the potential sentencing
increase, then “the Judge must inform the defendant, a
sufficient time in advance of sentencing (i.e. [sic] not during
the actual sentencing), of the specific grounds that the court
1
(...continued)
notice provision cannot be plain error because “no precedent from
this court or from the Supreme Court establish[es] that Fed. R.
Crim. P. 32 applies to a post-Booker upward variance”). Because
the parties did not brief this issue, however, we will not address
it here.
8 No. 05-1449
is considering relying on to increase the terms of confine-
ment.” Id.
1. Acceptance of Responsibility
Sharp first argues that this Court’s case law compelled
the district court to give notice of its decision to deny
Sharp’s three-level adjustment for acceptance of responsibil-
ity. The Sentencing Guidelines provide for a two-
level reduction in the offense level “if the defendant clear-
ly demonstrates acceptance of responsibility for his offense,”
and an additional one-level reduction upon a government
motion “stating that the defendant has assisted authorities
in the investigation or prosecution of his own misconduct by
timely notifying authorities of his intention to plead guilty.”
U.S.S.G. § 3E1.1. A defendant who “falsely denies, or
frivolously contests, relevant conduct that the court deter-
mines to be true has acted in a manner inconsistent with
acceptance of responsibility.” U.S.S.G. § 3E1.1, cmt. n.1(a).
Conway conceded at argument before the district court that
the facts contested by Sharp, particularly the amount of
cocaine, constituted relevant conduct. Because the denial of
the reduction was therefore justified, the only remaining
issue is whether the district court was required to pro-
vide advance notice of its intent to deny.
This Court has never held that a defendant is entitled
to notice from the district court of a downward adjust-
ment for acceptance of responsibility. To the contrary, this
Court has expressed skepticism of the argument that
defendants must be provided “notice and opportunity to
rebut evidence that at best serves only to limit the pos-
sibility of a downward adjustment.” United States v.
Beltran, 109 F.3d 365, 370 (7th Cir. 1997). In United States
v. Saunders, this Court reviewed the district court’s
denial, after a jury trial, of a reduction based on Saunders’
acceptance of responsibility. 973 F.2d 1354 (7th Cir. 1992).
No. 05-1449 9
This Court held that the Burns notice requirement
was inapplicable because the district court “simply chose
not to accept a presentence report recommendation.” Id. at
1364. In so holding, the Court found that Saunders was not
caught off guard because “the inclusion of that recommenda-
tion in the report, by definition, gave Saunders notice that
it was an open question at the sentencing hearing.” Id. As
in Saunders, Sharp was not caught off guard by the district
court’s action because the PSR included the recommenda-
tion. Its inclusion gave Sharp notice that the issue could be
raised, although he assumed it would not be an open
question at the sentencing hearing because the parties had
agreed to the reduction. In Sharp’s words, “the parties at
Sharp’s sentencing hearing anticipated they would be
arguing solely over the role that a firearm Sharp possessed
played in his offense,” and not the acceptance of responsibil-
ity issue.
Based on the plain language of the plea agreement
and the PSR, however, this assumption was unjustified.
Sharp had ample notice, from the plea agreement and from
the court, that the recommendation of a two-level reduction
was conditional in nature and that the government could
decide not to file a motion recommending the additional
reduction if Sharp did not continue to cooperate. See United
States v. Brumfield, 301 F.3d 724, 731 (7th Cir. 2002)
(finding that both the plea agreement and the PSR provided
the defendant with notice). The language of the plea
agreement first provided Sharp with notice. In it the parties
used conditional language to describe the acceptance of
responsibility reduction:
To date, Sharp has demonstrated acceptance of respon-
sibility for his criminal conduct. In the event he contin-
ues to accept responsibility, his offense level should be
decreased by two levels, pursuant to USSG § 3E1.1(a).
***
10 No. 05-1449
In the event he continues to accept responsibility, at the
time of sentencing. [sic] the United States will file a
motion that informs the Court of the same and enables
the Court to decrease Sharp’s offense level by one
additional level, pursuant to USSG § 3E1.1(b).
By its terms, the agreement between the parties condi-
tioned the government’s recommendation of both the two-
level reduction and the additional one-level reduction on
Sharp’s continued cooperation. Sharp did not object to
this portion of the plea agreement, just as he did not ob-
ject to the recommendation in the PSR. In addition, the
district court admonished Sharp at the plea hearing:
In the event you continue to cooperate, the United
States will file a motion to enable the Court to decrease
your offense level by one additional level under the
acceptance of responsibility provisions of Subsection B.
When questioned by the court, Sharp affirmed that this was
the agreement, again plainly conditional, that he entered
into with the government. Taken together, the plea agree-
ment, the court’s admonishment, and the PSR recommenda-
tion gave Sharp notice that, if he did not continue to
cooperate, the government could nullify the acceptance of
responsibility reduction.
At the sentencing hearing, Sharp did not continue to
cooperate. After noting that Sharp appeared to be “very
forthcoming” with law enforcement on the night of his
arrest, the district court found that
sadly, Mr. Sharp took the stand here and gave ma-
terially false testimony on material points, specifically
with respect to the length of his kilogram quantity
distributorship of cocaine. It was a fact clearly set
out in the presentence report on which the calcula-
tion of the base offense level was indicated. It was not
indicated to be an objection by the defense, and ade-
quate time was given to object to that.
No. 05-1449 11
Sharp’s testimony directly contradicted the PSR, Detec-
tive Foster’s testimony, the plea agreement, and the
audiotape. The court noted that at the plea hearing, neither
of Sharp’s two objections to the factual predicate related to
the issues that he later disputed at the sentencing hearing.
Because “he was not truthful or forthcoming with the Court
and was attempting to minimize his involvement in a
materially false way,” the court found that Sharp was not
entitled to the reduction for acceptance of responsibility.
Sharp argues that he was entitled to notice under this
Court’s decision in United States v. Sienkowski, 359 F.3d
463 (7th Cir. 2004). In holding that the district court abused
its discretion by not providing the government notice of its
intent to reject an enhancement agreed to by both parties,
this Court noted that the enhancement had not been in
dispute until the district court raised the issue at the
sentencing hearing. Id. at 470. Defendant argues that in
this case, as in Sienkowski, the acceptance of responsibility
reduction was not in dispute until the sentencing hearing
and thus the court was required to provide notice. But here,
unlike in Sienkowski, the issue arose at the sentencing
hearing because of defendant’s false testimony. Based on
Sharp’s answers on cross-examination, the government
announced that it no longer intended to honor the plea
agreement with respect to the recommended two-level
reduction, or to file the § 3E1.1D motion to afford Sharp the
additional one-level reduction for acceptance of responsibil-
ity. The government withdrew its motion at the sentencing
hearing and argued against the previously agreed-to
reduction because Sharp contested relevant
conduct—namely, that he had sold approximately one
kilogram of cocaine for the past year and a half—and did
not truthfully admit his criminal conduct.
Sharp’s actions caused both the government’s reaction
and the court’s subsequent ruling. The court could not
possibly have given advance notice of its intent to deny
12 No. 05-1449
the reduction for the simple reason that up until the
hearing it had no such intent. The transcript of the sentenc-
ing hearing is replete with declarations of the court’s
surprise at the sudden turn of events; for instance, the court
stated that he was “taken aback” by Sharp’s change of
heart. The court then anticipated the government’s argu-
ments on the issue by asking, “Is there a dispute about
acceptance of responsibility?” Although Sharp now charac-
terizes this question as improper because it was
unprompted, the court only proposed the question after
Sharp had testified and the government had played back
the audiotaped conversation between Sharp and Detective
Foster. The government played it back for the stated reason
that the audiotaped conversation was “different in different
respects from the answers he gave on the stand.” Instead of
raising the acceptance of responsibility issue sua sponte,
then, the court merely anticipated the argument that the
government pursued based on the evidence presented.
Thus, the situation in Sienkowski is distinguishable
from the present matter. Instead of the court and the
prosecution experiencing surprise at the defendant’s
testimony, in that case the defendant and the prosecution
were “surprised by the district court’s announcement.”
Sienkowski, 359 F.3d at 469. In Sienkowski, this Court
specifically observed that its holding was “one of narrow
applicability” and that “a variance in any of the other
aforementioned factors would likely compel a different
outcome.” Id. at 470. Here, the fact that the surprise
resulted from Sharp’s changed testimony, and not from
the district court’s sua sponte action, is a distinction that
compels a contrary result. The district court did not commit
clear error.
2. Obstruction of Justice
Sharp next argues that the court was required to pro-
vide notice of its intent to adjust his sentence for obstruc-
No. 05-1449 13
tion of justice. A district court may increase a defendant’s
base offense level by two levels for obstruction of justice “if
the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice during
the investigation, prosecution, or sentencing of the instant
offense.” U.S.S.G. § 3C1.1. The increase only applies where
the obstructive conduct related to “the defendant’s offense
of conviction and any relevant conduct.” U.S.S.G.
§ 3C1.1(B)(I). One example of obstructive conduct is
“providing materially false information to a judge or
magistrate. . . .” U.S.S.G. § 3C1.1, cmt. n.4(f); see also
United States v. Carroll, 346 F.3d 744, 748 (7th Cir. 2003).
Sharp does not argue that the district court’s decision to
increase was unjustified; the only issue is whether the court
was required to provide notice of its intention to increase.
Sharp argues that this Court’s Jackson decision obligated
the district court to provide notice of its intent to impose an
obstruction of justice enhancement. In Jackson, this Court
held that notice from the district court is required for
sentencing adjustments unless the defendant is “aware of
facts which may warrant an adjustment” and has “actual
knowledge that those facts will be considered in sentenc-
ing.” 32 F.3d at 1108. Sharp claims that this case is analo-
gous to Jackson because at the sentencing hearing both
parties anticipated arguing solely over another issue, not
the one raised by the judge. There was, in Sharp’s words, no
“indication prior to the hearing that Mr. Sharp obstructed
justice,” just as there was no prior indication of the court’s
intention to consider an enhancement for abuse of position
of trust in Jackson.
In Jackson, however, this Court carefully distin-
guished the defendant’s case from several other cases,
including United States v. Willis, 997 F.2d 407 (8th Cir.
1993). In Willis, the Eighth Circuit upheld a district court’s
sua sponte enhancement for obstruction of justice even
though the PSR stated that no information indicated that
14 No. 05-1449
the defendant impeded justice. The sentencing
court imposed the obstruction enhancement based on its
finding that Willis had given perjured testimony at trial.
Because Willis knew of “the potential bases for enhance-
ment in the guidelines and the potential factual bases
in the trial testimony,” the court reasoned that Willis
could not have been unfairly surprised by the district
court’s decision to consider the enhancement. This Court
expressly stated that Jackson differed from Willis “because
Jackson did not have knowledge of the facts giving rise
to the sentencing enhancement,” id. at 1108, whereas
“Willis was obviously aware that he had given perjured
testimony.” Id. at 1107. The Court in Jackson, then,
affirmed the authority of a district court to impose sua
sponte an enhancement for obstruction of justice where
the enhancement is predicated on the defendant’s false
testimony.
That is precisely what occurred here. The district
court found that Sharp, through his sworn testimony at the
sentencing hearing, was “attempting to minimize his
involvement in a materially false way.” Sharp was on notice
that doing so could result in a possible obstruction of justice
enhancement. The PSR contained no indication of that
possibility for the logical reason that Sharp had cooperated
with the government up until the sentencing hearing. The
plea agreement that Sharp signed, however, expressly
referenced that possibility: “Finally, my attorney has
informed me, and I understand, that if I provide or cause to
be provided materially false information to a judge,
magistrate-judge, or probation officer, then USSG § 3C1.1
allows the Court to impose a two (2)-level increase in the
offense level.” Based on Sharp’s undeniable awareness of
his own false testimony and the actual knowledge provided
by the plea agreement, it was not clear error for the district
court to decline to give notice that an obstruction of justice
enhancement could ensue.
No. 05-1449 15
B. Unreasonableness of the Sentence
Sharp also challenges his sentence as unreasonable. In
United States v. Booker, the Supreme Court held that
the Sentencing Guidelines were no longer mandatory
and that all sentences had to be reviewed for “unreasonable-
ness.” 125 S.Ct. 738, 765-67 (2005). Although the Sentenc-
ing Guidelines are now advisory, sentencing
judges nevertheless must correctly compute the appli-
cable sentencing range. Because the parties do not
dispute that the court properly calculated the guideline
range, this Court reviews the sentence for reasonable-
ness. District courts must continue to consult the factors set
forth in 18 U.S.C. § 3553(a), see Booker, 125 S.Ct. at 766,
and a properly calculated sentence is entitled to
a rebuttable presumption of reasonableness. United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). This
standard is deferential; a defendant can only rebut the
presumption by demonstrating that the sentence is unrea-
sonable when measured against the § 3553(a) factors. Id.
The district court must discuss those factors “not in check-
list fashion but instead in the form of an adequate state-
ment of the judge’s reasons” for finding the sentence
appropriate for that defendant. United States v. Dean, 414
F.3d 725, 729 (7th Cir. 2005).
When sentencing Sharp, the district judge expressly
referenced several § 3553(a) factors. He examined the
nature of the offense, finding Sharp’s system of dealing to
be “a very professionally run, reasonably high volume
of distribution.” He took note of Sharp’s “very unusual
background” as a 42-year-old first-time offender who
had continuously been “well employed.” In addition to the
kinds of sentences available, the judge considered the
applicable sentencing range established for Sharp’s of-
fense level. He thoroughly examined the need for the
sentence imposed, touching on all relevant issues from
affording adequate deterrence to providing Sharp with
16 No. 05-1449
needed training. The judge further focused on the need
to avoid unwarranted sentence disparities, and noted
that the sentence range of 235-293 months was merely
“suggested by the Guidelines” and not mandatory. Finally,
after deciding that all the § 3553(a) factors “would sug-
gest that that sentence ought to be not at the top end of
that range, but more close to the lower end of the range,”
the judge imposed a sentence of 235 months. Because the
district court articulated a thorough rationale for the
sentence consistent with the § 3553(a) factors, and be-
cause Sharp offered no evidence to rebut the presump-
tion, the sentence was reasonable.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-1-06