US v. Emmanuel Keller, No. 09-4026 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4026 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EMMANUEL ELLIS KELLER, a/k/a Mayo, a/k/a Manyo, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00061-FDW-2) Submitted: February 23, 2011 Decided: April 11, 2011 Before NIEMEYER, KING, and SHEDD, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Aaron E. Michel, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Emmanuel Ellis Keller appeals the sentence imposed following his guilty plea, pursuant to a written plea agreement, to conspiracy to distribute and possess with intent to distribute fifty grams or more of crack cocaine, 500 grams or more of cocaine, marijuana, and Ecstasy, in violation of 21 U.S.C. ยงยง 841(a)(1), (b)(1), 846 (2006). The plea agreement provided an that neither party would seek enhancement reduction from the applicable Guidelines range. or We vacate the district court s judgment and remand for further proceedings. The presentence investigation report recommended enhancements based on Keller s possession of a firearm and role in the offense. Keller objected to the sentencing enhancements as violative of the plea agreement. direction, the Government offered At the sentencing court s corroborating evidence of Keller s possession of a firearm. The Government also offered evidence leadership demonstrating conspiracy. (AUSA) Although stressed enhancements, he that Keller s the the summarized Assistant Government the role United was evidence States not in in Attorney seeking favor of enhancement, as follows: First, as to being a leader, . . . it s very clear from all co-conspirators that Mr. Keller was a ranking member of the Hidden Valley Kings . . . . 2 the the each [H]e clearly has a leadership role within the gang. That s pretty much undisputed. As to the shooting, Your Honor, the evidence is pretty strong on this, Your Honor. First, we have Mr. Bridges saying he always carries a 9mm with him. And, of course, Your Honor, as I stated during the last sentencing, we would not rely on that alone, but in this case it is corroborated by independent evidence. Evidence, that I might add, Your Honor, has been developed over the prosecution of this case before and after the Plea Agreement with Mr. Keller. Over the investigation, it s multiple sources, including the was involved in shootings]. pretty clear from victim [that Keller So the evidence is certainly beyond a preponderance of the evidence in this case that Mr. Keller possessed a gun in relation to drug trafficking, as you heard from Mr. Bridges debrief that he always carries it and he s a drug dealer, and from the fact that they had a drug dispute . . . and the shooting occurred as a result. So I believe that the totality of the evidence beyond a preponderance of the evidence shows that Mr. Keller did possess a gun in relation. There was a nexus to the drug dealing. And, therefore . . . the two points probably should be upheld. Defense AUSA s counsel statements enhancements in again advocated violation of the objected, imposition plea arguing of agreement. that the sentencing The court found ample evidence supported the enhancements and specifically ruled that the Government did not violate the plea agreement by merely providing the evidence supporting the Probation Office s recommendation of the enhancements. The court applied the enhancements and sentenced Keller to 293 months of imprisonment. Keller noted a timely appeal. 3 The Government has conceded its failure to uphold the spirit of the plea agreement, and the parties have jointly moved to remand for resentencing on Keller s allegations of sentencing error, breach misconduct. the appeal of the plea agreement, and prosecutorial The Government alternatively requests dismissal of based on Keller s waiver of the right to appeal agreement, an appeal included in the plea agreement. Absent a breach of the plea waiver should be enforced if the record shows the waiver is valid and the challenged issue falls within the scope of the United States v. Blick, 408 F.3d 162, 168 (4th Cir. waiver. 2005); 2006). United States v. Cohen, 459 F.3d 490, 495 (4th Cir. When a claim of breach of a plea agreement has been preserved, we review the district court's factual findings for clear error and its application interpretation de novo. of principles of United States v. Lewis, contract F.3d , 2011 WL 310805 at *3 (4th Cir. 2011) (internal quotation marks and citation omitted). Because Keller preserved appellate review by objecting to the sentencing enhancements, our review is for harmless error. Id. A concession of error on the part of the Government does not end this court s inquiry, as this court is not at liberty to Government s vacate and concession of remand error 4 for resentencing alone. United on the States v. Rodriguez, 433 F.3d 411, 415 n.6 (4th Cir. 2006). judicial obligations errors confessed. n.7 (4th omitted). Cir. compel us to examine Rather our independently the United States v. Robinson, 460 F.3d 550, 558 2006) (internal quotation marks and citations Courts have a vital interest in assuring that plea agreements are adhered to and handled properly. 310805 at *4. When Lewis, 2011 WL a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Id. (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)). Despite reassurances to the contrary, the AUSA specifically advocated for application of the enhancements when he commented in detail on the strength of evidence supporting the enhancements. We accordingly conclude that the Government breached the plea agreement. That the breach may have occurred while complying with the court s directive for presentation of corroborating evidence does not lessen its impact. 404 U.S. at 262. which he was Santobello, Because Keller did not secure the benefit to entitled when the Government sought sentencing enhancements, which the court applied, we find that the error affected Keller s substantial Lewis, 2011 WL 310805 at *7. appeal waiver. rights and was not harmless. We therefore do not enforce the Id. at *7 n.8. 5 Accordingly, we grant the parties joint motion remand, vacate the sentence, and remand for resentencing. to We deny Keller s motion for remand based on the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. We dispense with oral contentions argument adequately because presented the in the facts and material legal before the court are and argument would not aid the decisional process. VACATED AND REMANDED 6

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