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United States v. Heard

February 27, 2004

UNITED STATES OF AMERICA, APPELLEE
v.
DERRICK J. HEARD, APPELLANT



Appeal from the United States District Court for the District of Columbia (No. 01cr00266–01)

Before: Sentelle and Garland, Circuit Judges, and Silberman, Senior Circuit Judge.*fn1

The opinion of the court was delivered by: Garland, Circuit Judge

Argued November 18, 2003

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.

The United States and defendant Derrick Heard agreed to resolve a criminal charge against Heard through a plea agreement that called for a sentence of 48 months' imprisonment. The parties agreed to disagree, however, as to whether that sentence should run concurrently with, or consecutively to, a term of imprisonment that Heard was already serving for committing a different offense. The district court decided to run Heard's new sentence consecutively to his old one, so that the 48–month period would not commence until after Heard completed his existing sentence.

Heard now appeals, contending that the district court erred in not imposing a concurrent or partially concurrent sentence. The issue is governed by United States Sentencing Guideline § 5G1.3. Finding no error in the district court's determinations, we affirm the defendant's sentence.

I.

On January 21, 2000, Heard was arrested after police officers, in the course of executing a search warrant at his apartment, found a revolver, 132 grams of crack cocaine, and approximately $2000 in cash. On May 5, 2000, Heard pled guilty to two counts stemming from the January 2000 arrest: possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a) and (b)(1)(A)(iii); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). Heard was released on his personal recognizance pending sentencing, as part of an agreement to cooperate with the government. On January 27, 2001, while still on release awaiting sentencing, Heard was again arrested -- this time with 1.4 grams of crack in his possession.

On February 14, 2003, a United States District Judge for the District of Columbia sentenced Heard for his January 2000 offenses. The judge imposed concurrent sentences of 133 months' imprisonment on the cocaine count and 30 months' imprisonment on the firearm count.

Six days later, on February 20, 2003, Heard reached a plea agreement with the government regarding his January 2001 offense. That agreement was entered into pursuant to Federal Rule of Criminal Procedure 11(e)(1)(C), which provides that a plea agreement may specify that ''the attorney for the government will TTT agree that a specific sentence or sentencing range is the appropriate disposition of the case.'' FED. R. CRIM. P. 11(e)(1)(C) (2002).*fn2 Rule 11(e)(1)(C) further provides that ''[s]uch a plea agreement is binding on the court once it is accepted by the court.'' Id.

Heard agreed to plead guilty to one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), for his January 2001 offense. In return, the government agreed to a sentence of 48 months' imprisonment. Both parties ''specifically agreed not to put in the plea agreement whether the sentence, if the court were to accept it, would run concurrent[ly] or consecutively'' to Heard's undischarged sentence for the January 2000 offenses, ''but TTT rather reserve[d] that for argument at the time of sentencing.'' Hr'g Tr. at 6 (Apr. 18, 2003).

Prior to the sentencing hearing, the U.S. Probation Office prepared a Presentence Investigation Report (PSR) that calculated a sentencing range of 188–235 months' imprisonment under the United States Sentencing Guidelines. The Probation Office initially calculated Heard's criminal history category as III, and his base offense level as 18 -- the latter because his offense involved 1.4 grams of cocaine base. PSR ¶¶ 13, 26; see U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(11) (drug quantity table) (2002) [hereinafter U.S.S.G.]; id. § 4A1.1 (criminal history categories). It then added a 3–level enhancement because Heard committed the offense while on release for another crime. PSR ¶ 14; see U.S.S.G. § 2J1.7.

A substantial further enhancement was required, however, because Heard's February 20, 2003, conviction, together with another previous conviction for a drug felony in 1990, rendered him a career offender under Guideline § 4B1.1(a). Under the career offender guideline, Heard's offense level was increased to 34 and his criminal history category was raised from III to VI. PSR ¶¶ 19, 27; see U.S.S.G. § 4B1.1(b).*fn3 After applying a 3–level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a)–(b), the Probation Office concluded that Heard's total offense level was 31. That, together with a criminal history category of VI, yielded a guidelines sentencing range of 188–235 months' imprisonment. PSR ¶¶ 20, 21, 57; see U.S.S.G. ch. 5, pt. A (sentencing table). The Probation Office noted, however, that the ''Rule 11(e)(1)(C) plea agreement caps the defendant's custody range [at] 48 months.'' PSR ¶ 59.

On April 18, 2003, a district judge different than the one who had sentenced Heard for his January 2000 offenses held a hearing to determine whether to accept Heard's Rule 11(e)(1)(C) plea agreement. After both the defense counsel and the prosecutor stipulated that the PSR contained no material inaccuracies, the judge accepted the PSR ''as findings of fact on the issues that are not in dispute.'' Hr'g Tr. at 3. The judge then noted ''for context purposes what the guidelines calculation would be in this case,'' reciting the calculations set out above. Id. Next, the focus of the proceeding turned to whether the judge should accept the plea and how to impose the agreed-upon sentence relative to the defendant's undischarged term. In that respect, the judge stated that he was not ''taking the prior ...


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