United States v. Michael Thompson ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2509
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Michael D. Thompson, *
*
Appellant. *
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Submitted: March 13, 2002
Filed: May 8, 2002
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Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
Michael Thompson (Thompson) pled guilty to possessing cocaine with intent
to distribute, a violation of 21 U.S.C. § 841(a)(1). At his sentencing hearing,
Thompson's lawyer withdrew his objections to the presentence investigation report
(PSR) and requested a sentence at the low end of the guideline range. The district
court1 sentenced Thompson within the guideline range, and Thompson now appeals
his sentence. We affirm.
1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
I. BACKGROUND
Thompson was arrested in Hot Springs, Arkansas, on July 9, 1999, after he
purchased cocaine and marijuana from a cooperating witness. After his arrest,
Thompson admitted to purchasing approximately 2.5 kilograms of cocaine and
between 200 and 500 pounds of marijuana from a Texan named Johnny Lemos
(Lemos) on separate occasions in the two or three months leading up to his arrest.
Thompson, who purchased the drugs from Lemos through a courier, also admitted to
selling drugs to approximately eight buyers.
Thompson entered into a plea agreement and pled guilty to one count of
possession of cocaine base with intent to distribute. The PSR recommended that
Thompson be given a three-level enhancement for managing or supervising other
participants under U.S.S.G. § 3B1.1(b). The PSR found that Thompson's course of
drug dealing involved all of the drugs he confessed to receiving from Lemos and
reselling to others. It also calculated Thompson's criminal history category by
including two felony convictions imposed when Thompson was sixteen, but for
which he was sentenced as an adult.
Thompson's lawyer initially raised eight objections to the PSR, including
objections to the three-level enhancement, the drug quantity determination, and the
use of the two felony convictions mentioned above. At the beginning of the
sentencing hearing, however, Thompson's lawyer withdrew all eight objections,
including the three objections just described. In withdrawing his objections,
Thompson's lawyer told the district court they were "more in the form of argument
than . . . a dispute over the facts." The district court asked Thompson whether he
opposed his lawyer's withdrawal of the eight objections, and Thompson responded,
"No, sir." Thompson's lawyer then acquiesced in the guideline range recommended
by the PSR and asked the district court "to consider the low end of the range of
punishment."
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The district court sentenced Thompson to 144 months imprisonment, which
was within his guideline range of 140 to 175 months. Thompson's guideline range
was based upon the PSR's recommendations of a three-level enhancement for being
a manager or supervisor, a drug quantity composed of 200 pounds of marijuana and
2.5 kilograms of cocaine, and the two adult felony convictions imposed while
Thompson was a minor. On appeal, represented by new counsel, Thompson
challenges the district court's findings as to the three-level enhancement, the drug
quantity, and his criminal history.
II. DISCUSSION
In their briefs, the parties agree that we should review Thompson's sentence for
plain error. To constitute a plain error, a district court's decision must be (1) an error,
(2) which is clear or obvious, and (3) which affects substantial rights. United States
v. Olano, 507 U.S. 725, 733-35 (1993). In addition, although Rule 52(b) of the
Federal Rules of Criminal Procedure gives us discretion to notice plain errors, we do
so only if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. at 732, 736-37; United States v. Evans, 272 F.3d 1069, 1080
(8th Cir. 2001).
The plain error standard only applies when a defendant inadvertently fails to
raise an objection in the district court. See Olano, 507 U.S. at 732-33; United States
v. Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997). In this case, Thompson's lawyer told
the district court he was withdrawing all of his objections, including his objection to
the enhancement for managing or supervising others. Thompson's lawyer then asked
the district court to sentence Thompson at the low end of the guideline range, which
the district court did. On appeal, Thompson cannot complain that the district court
gave him exactly what his lawyer asked. See United States v. Murphy, 248 F.3d 777,
779-80 (8th Cir. 2001) (finding no plain error in the district court's failure to depart
downward where the defendant's lawyer did nothing to seek such a departure but
instead asked for a sentence at the low end of the sentencing range).
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III. CONCLUSION
"Only when the right is inadvertently left unasserted is the defendant saved by
Rule 52(b)'s plain error review." Id. at 779 (citing Olano, 507 U.S. at 733 and
Gutierrez, 130 F.3d at 332). Because the lawyer who represented Thompson in the
district court withdrew Thompson's objections to the PSR, Thompson is precluded
from arguing those objections on appeal. Accordingly, we affirm the judgment of the
district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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