United States v. Smith, No. 11-3062 (10th Cir. 2011)
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Defendant-Appellant Jonearl Smith was charged with possession with intent to distribute of five grams or more of a mixture or substance containing a detectable amount of cocaine base. The grand jury returned a superseding indictment charging Defendant with possession with intent to distribute of cocaine base and possession with intent to distribute cocaine several months earlier. Pursuant to a plea agreement, Defendant entered a guilty plea to all counts charged in the superseding indictment. The plea agreement did not prohibit the government from bringing additional criminal charges against him for the conduct giving rise to the criminal charges to which he pled guilty. Defendant was sentenced to 150 months' imprisonment on each count, to run concurrently. One year later, Defendant was charged in another superseding indictment, this time in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). Defendant was convicted on counts two and twenty-eight, and acquitted of count twenty-nine of the RICO indictment, and sentenced to 77 months' imprisonment. While the RICO case was pending, Defendant filed a motion in this case to vacate, set aside, or correct his sentence. A panel of the Tenth Circuit reversed and remanded the case. On remand, the district court granted Defendant's motion on the ground that his attorney failed to fully advise him of the consequences of entering a guilty plea. Defendant filed a motion to dismiss the charges based on the the Double Jeopardy clause after the court set the case for a new jury trial. Finding that there were no issues decided in the RICO case that were identical to any issue in his possession case, the Tenth Circuit concluded collateral estoppel did not bar prosecution on Defendant's drug charges. Accordingly, the Court affirmed the district court's denial of Defendant's motion to dismiss.
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