United States v. Brandon Tate (4th Cir. 2017, filed 1/11/17): District court’s job to determine “applicable Guideline range” not the Gov’t’s.

January 12th, 2017
Elizabeth Franklin-Best

So, Mr. Tate raises a breach of plea agreement issue.  He agreed to plead guilty to some drug charges and the Government agreed in the plea agreement to “seek a sentence at the lowest end of and either party may seek a departure or variance from the ‘applicable guideline range.’  Tate also agreed to waive his “rights to contest the conviction except for: 1) claims of ineffective assistance of counsel or 2) prosecutorial misconduct.”

Tate disagreed with the guidelines the court found applied to his case.  He filed objections, and at the sentencing hearing the court overruled those objections.  Tate then filed a notice of intent to appeal and alleged, essentially, that his sentence violated the plea agreement since (he believes) the district court got his sentence wrong.  Tate’s deeper argument was that the Government had an affirmative duty to seek out the “correct guideline range” and ask that the sentence imposed be at the lowest end of THAT.

Tate did not object at the time of sentencing, so his claim is assessed under plain error review: 1) there must be an error, 2) the error must be plain, 3) the appellant’s “substantial rights” must be affected by the error; and 4) the error must seriously affect “the fairness, integrity or public reputation of judicial proceedings.”  Puckett v. United States, 556 U.S. 129, 135 (2009).

The Fourth Circuit outlines a district court’s responsibilities in imposing a sentence.

First, the district court must determine “the applicable [g]uidelines range.” Molina-Martinez v. United States, 136 S.Ct. 1338 (2016); Gall v. United States, 552 U.S. 38, 49 (2007).  Next, the Government and the defendant present their arguments regarding what the sentence should be.  Peugh v. United States, 133 S.Ct. 2072 (2013).  The court then considers these arguments along with the factors set forth in 18 U.S.C. Section 3553(a).  Id.  Then, the court determines the defendant’s sentence, and states its reasons for this sentence on the record.  Id.

Here, the Court found that it is clearly the responsibility of the court to determine the applicable guideline range, and not the Government’s.  The Court also addressed a related issue of whether the appeal waiver is valid.  The Court found that an appeal waiver that is explicitly conditioned on a correct sentence under the Guidelines will be honored, but one that merely references the Guidelines will not (practice tip!  Make sure your client’s waiver is predicated on the sentencing actually being correct!).  And then the Court jettisoned Tate’s argument on the merits.

The take-away here is that a defendant cannot mount an appeal (which he waived) by asserting the Government had some independent duty that is already within the responsibilities of the district court.  Bonus points for legal creativity, though!

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