Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 04 CR 5-John Daniel Tinder, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
ARGUED SEPTEMBER 27, 2005
Before FLAUM, Chief Judge, and BAUER and SYKES, Circuit Judges.
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.
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?
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 ...