United States v. Jenkins

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4807
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOE JENKINS, a/k/a Cripple Joe,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:05-cr-00135)
Submitted: February 7, 2007 Decided: April 30, 2007
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Capers G. Barr, III, BARR, UNGER & MCINTOSH, LLC, Charleston, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina, Carlton R. Bourne, Jr.,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Joe Jenkins pled guilty to
possession with intent to distribute cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C) (2000). The district court
sentenced Jenkins to 300 months’ imprisonment, within the
sentencing guidelines range. Jenkins appealed, and counsel filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
contending there exist no meritorious issues for appeal but seeking
review of Jenkins’ sentence. Jenkins filed a pro se supplemental
brief. The Government declined to file a responding brief. For
the reasons that follow, we affirm in part and dismiss in part.
Counsel seeks review of the district court’s decision not
to grant Jenkins a downward departure below the guidelines range of
262 to 327 months’ imprisonment. However, counsel concedes the
court was never asked to depart and no evidence adduced at the
sentencing hearing justified a departure. The district court did
not mistakenly believe it lacked jurisdiction to depart; therefore,
its decision not to depart from the sentencing guidelines is not
subject to appellate review. See United States v. Quinn, 359 F.3d
666, 682 (4th Cir. 2004) (citing United States v. Bayerle, 898 F.2d
28, 30-31 (4th Cir. 1990)); see also United States v. Cooper, 437
F.3d 324, 333 (3d Cir. 2006) (collecting cases adopting this rule
after United States v. Booker, 543 U.S. 220 (2005)).
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In his pro se supplemental brief, Jenkins raises a
related issue, contending the Government breached the plea
agreement by failing to move for a downward departure pursuant to
U.S. Sentencing Guidelines Manual (“USSG”) § 5K1.1 (2005).1 This
issue was not raised before the district court and therefore is
reviewed for plain error. See United States v. Olano, 507 U.S.
725, 732 (1993). The plea agreement did not include an obligation
to file a departure motion but reserved the discretion to file the
motion with the Government. See United States v. Wallace, 22 F.3d
84, 87 (4th Cir. 1994); see also United States v. LeRose, 219 F.3d
335, 341-43 (4th Cir. 2000) (holding departure on ground of
1
The plea agreement provided Jenkins’ sentencing range would
be 188 to 235 months’ imprisonment provided the district court
deemed he accepted responsibility pursuant to USSG § 3E1.1.
Additionally, if Jenkins complied with the agreement’s terms, he
could request the Government to move for a downward departure for
substantial assistance pursuant to USSG § 5K1.1. At his guilty
plea hearing, the district court granted Jenkins’ request for a
temporary delay in the revocation of his pre-trial bond, so that
Jenkins could resolve a personal matter prior to entering the
Government’s custody. Jenkins did not appear on the date ordered
and was arrested over a month later. At sentencing, Jenkins was
not credited with acceptance of responsibility, and the Government
did not move for a downward departure. Jenkins asserts the
Government’s alleged breach was occasioned by its failure to place
him and his family in the witness protection program; he claims he
was threatened by a co-defendant while attending to personal
business after the guilty plea hearing, which caused him to flee.
The Attorney General may provide for the relocation and protection
of a witness or potential witness as well as that witness’ family,
if the Attorney General determines a crime of violence directed at
the witness is likely to be committed. See 18 U.S.C. § 3521(a)(1)
(2000). In affidavits submitted prior to sentencing, Jenkins
claimed he conveyed the threats to the authorities, who were
unresponsive. The district court found Jenkins’ claims were not
credible.
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substantial assistance to Government first requires Government to
file motion for court to depart). Therefore, we conclude this
issue is meritless.
Next, Jenkins contends the district court violated 18
U.S.C. § 3146(c) (2000) when the court increased the sentence
because of his failure to appear pursuant to the court’s order.
Section 3146(c) provides an affirmative defense in a failure to
appear prosecution; however, as counsel notes, Jenkins was not
charged with a failure to appear. Instead, the district court
correctly found that an offense-level reduction for acceptance of
responsibility became inappropriate when Jenkins failed to appear
pursuant to the court’s order. Accordingly, this contention fails.
In his pro se brief, Jenkins contends his sentence was
unreasonable. At sentencing, the district court considered the
properly calculated advisory sentencing guideline range and the
factors set forth in 18 U.S.C. § 3553(a) (West 2000 & Supp. 2006).
The sentence imposed is within the guideline range and well below
the statutory maximum set forth in 21 U.S.C. § 841 (2000). We find
there is no sentencing error and conclude Jenkins’ sentence is
reasonable. See United States v. Green, 436 F.3d 449, 457 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Finally, Jenkins contends in his pro se brief that the
district court accepted his guilty plea without an adequate factual
basis. Because Jenkins did not move in the district court to
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withdraw his guilty plea, any error in the Fed. R. Crim. P. 11
hearing is reviewed for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). We have reviewed the transcript
of the Rule 11 hearing and find no such error in the proceedings.2
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Jenkins’ conviction and sentence. We dismiss the
portion of the appeal contesting the district court’s decision not
to depart. This court requires counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. 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 IN PART;
DISMISSED IN PART
2
We also reject Jenkins’ contention that the district court
erred under Fed. R. Crim. P. 11 and 32 because Jenkins allegedly
was not aware of what sentence he would receive. At the guilty
plea hearing, Jenkins indicated he understood his sentence could
not be determined until the completion of the presentence report
and the sentence could differ from any estimate provided by his
counsel or the Government.
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