U.S. v. Sharp

436 F.3d 730

UNITED STATES of America, Plaintiff-Appellee, v. Vincent SHARP, Defendant-Appellant.

No. 05-1449.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2005.

Decided February 1, 2006.

Barry D. Glickman (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Mark Inman (argued), Indianapolis, IN, for Defendant-Appellant.

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 sentenced 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 presentence report (PSR), and that his sentence was unreasonable. We affirm.

I. Background

On January 14, 2004, a grand jury indicted Sharp on one count of distribution of five kilograms or more of a substance 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 distribution 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 application of the Sentencing Guidelines. He also told the court that he understood that the guilty plea would be binding irrespective of the court's determination of the applicable 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 controlled 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 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 enterprise 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 responsible 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 upward adjustment for possessing a firearm during the commission of the offense and a three-level downward adjustment for acceptance of responsibility. Sharp expressed only the following two objections to the PSR:

The defendant objects to paragraph 19 of the presentence 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 narcotics trafficking. The defendant would also note a typographical error in paragraph 48 of the presentence 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 independently 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 kilograms of cocaine.

A. No.

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 confirmed 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 responsibility 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 intended to reject the PSR recommendation of acceptance of responsibility and to impose instead an enhancement for obstruction of justice. Although this Court ordinarily reviews for clear error a district court's decision not to provide notice of its intention to depart from the guidelines, the defendant's failure to object at sentencing results 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Rule 32 of the Federal Rules of Criminal Procedure provides:

Before the court may depart from the applicable sentencing 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 contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.

Fed.R.Crim.P. 32(h).¹ The Sentencing Guidelines similarly 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 departure 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." 501 U.S. 129, 138, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). The notice must "specifically identify" the reason for the departure. Id. at 138-39, 111 S.Ct. 2182.

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.1992). Extending the Burns reasoning, 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...