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45 F. 3d 1423 - Unit ed States v . Robertson

Home4 5 f3d 1 42 3 united states v . robertson

45 F3d 1423 United States v. Robertson

45 F.3d 142 3

UNITED STATES of America, Plaintiff-Appellee,

v .

Steven ROBERTSON, a /k/a Steven Davis, a/k/a Whitey , a /k/a

Johnny Lee, a/k/a Moha m med, Defendant-Appellant.


v .

Edward GRAVES, a /k/a Poncho, Defendant-Appellan t.


v .

Glenda WALKER, Defendant-Appellant.


v .

An th ony Carlos TORRES, Defen dan t-Appel lant.

Nos. 93-1292 , 93 -1 294, 93-1300 and 93-13 01.

United Stat es Cour t of Appeals,

Tenth Circuit.

Ja n. 23, 1995.

Rehearing Denied March 6, 1 995.

John M. Hutch ins, Asst. U.S. Atty . (Henry L. Solano and CraigF. Wallace, U.S. Atty s., with him on the

briefs), Denv er, CO, for plaint iff-appellee.

David C. Japha, Denv er, CO, for plaintiff-appellant in No. 9 3-12 92 .

Stephen M. Wheeler of Wheeler Law Offices, PC, Ever green, CO, for plain tiff-appellant in No. 93 -1 29 4.

Daniel C. Hale of Miller, Hal e & Harr ison, LLC, Boulder, CO, for plaintiff-appellant in No. 9 3-1 30 0.

Ray m ond P. Moore, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, an d Jenine

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http://openjurist.org/45/f3d/1423 2

Jensen, Asst. Federa l Public Defender, on th e brief), Denv er, CO, for plain tiff-appellant in No. 93 -13 01 .

Before BRORBY, Circuit Judge, LAY,*Senior Cir cuit Judge, and McWILLIAMS, Circu it Ju dge.

BRORBY, Cir cuit Judge.

1

The defendants, Stev en Robertson, Edwar d Gra v es, Glenda Walker, and Ant hony Torres, brin g these

separa te appeals allegin g nu mer ous errors concern ing th eir conv ictions and senten ces. Because these

appeals ar ise out of a com m on crimin al enter prise and m any of the issues presented by th e individua l

defendants relat e to identica l facts and ru lings of the distr ict court , w e address them in a single opinion.

We h av e ju risdiction under 28 U.S. C. Sec. 1 291 , a nd for th e r easons set fort h below, affir m in part,

rev erse in part, and remand in part.

I. BA CKGROUND

2

Steven Robertson, Glenda Walker, and An thony Torres were initially char ged with conspiracy to

distr ibute m ore th an fifty gra m s of cocaine base ("cra ck cocaine") and distribu tion of more tha n fiv e

gram s of crack cocaine in v iolation of 21 U.S.C. Sec. 841 (a)(1), (b)(1 )(A)(iii) and (b)(1 )(B)(iii), 21

U.S.C. Sec. 846, and 1 8 U.S.C. Sec. 2.1 Subsequently , a superseding indictment w as filed containin g

tw enty additional count s. In addition to the origin al ch arg es, Mr. Robertson wa s cha rg ed wit h

possession w ith intent to distr ibute m ore th an 5 00 gr am s of powder cocaine in v iolation of 21 U.S.C. Sec.

841 (a)(1) and 21 U.S.C. Sec. 846 . The remaining counts charged v arious defendants with money

lau ndering in v iolation of 18 U.S.C. Sec. 19 56 (a)(1 )(A)(i) and (B)(i). A second superseding indictm entwas fi led ch ar ging Edward Gr av es with participa tion in th e conspir acy . Th is in dictm ent also added two

coun ts aga inst Ms. Walker for possession of firearm s by a conv icted felon. Th ese tw o coun ts were sev ered

prior to trial.

3

Shortly before trial, Messrs. Robertson, Gra v es and Torres sought t o enter g uilt y pleas wh ich th ey ha d

entered into with the government. The district court refused to accept these agreements concluding

none of the th ree defendants ha d com plied wit h "local rules" concerning plea a greem ents and stating

tha t no Rule 1 1 (e)(1)(C) plea ag reem ents would be accepted in the ca se. The court concluded: "If y ou

wan t to plea d to th e in dictm ent and take y our ch an ces, then that 'll be something th at I'll take a look at.

Otherw ise, th is case is going to trial next Monday ." Only Mr. Torr es pled guilt y to the indictm ent

against h im.2

4

Mr. Robertson w as conv icted by a jur y of eight count s and acquitted of one.3Mr. Grav es was conv icted

by a ju ry of th e sin gl e cou nt aga inst h im .4Ms. Walker, in a concurr ent tr ial to the court , wa s conv icted


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of th ree count s.5

5

The un derly ing facts are as follows.6The g ov ernm ent presented num erous witnesses at trial who

testified as to their exten sive observ ations concern ing t he drug operation and the indiv idual defendant s'

inv olv ement in it. Most of them w ere admit ted users of crack cocaine wh o gain ed their inform ation as a

result of pur cha sing drugs from, selling dru gs for, a nd socializing w ith t he defendant s.

6

The testimony at tr ial indicated Mr. Robertson and Mr. Grav es operated an extensiv e crack cocaine

operation in th e Metro-Denv er ar ea. Mr. Robertson w as char acter ized as the "ring-leader" of th e

operation wh o procured dru gs, handled the money , and gav e orders concern ing how th e conspiracy

would be r un. Mr. Grav es was port ray ed as th e "second in com mand" who wor ked c losely wit h Mr.

Robertson an d prima rily wa s responsible for distributin g cr ack cocaine to v ar ious locat ions in Denv er

where the conspir acy operat ed and who also sold sm all quan ti ties of cr ac k cocaine dir ect ly to user s. Mr .

Torres, wh ile a part of the conspiracy , appeared on th e scene only interm ittently .

7

Crack cocaine was distr ibuted to and sold from a nu mber of houses, apa rtm ents, an d motel rooms. Ms.

Walker , t he com m on law wife or com panion of Mr . Grav es, w as port ray ed as a r ela tiv ely m inor pla y er

in th e conspiracy wh o appeared frequently at the "sale" locations, th e "safe houses" wh ere drug s and

money wer e kept, an d occasionall y sold small qu ant ities of crack cocaine. In addition, she sometim es

paid the rent for locations used in fur ther ance of the enterpr ise.

8

Dwigh t Sherm an w as a frequent u ser of crack cocaine. He boug ht it from, smoked it w ith, and sold it for

Mr. Grav es. Following his arrest for inv olv ement in a cr ack cocaine sale, Mr. Sherm an began

cooperating with law enforcement. He informed Detective Demmel of the Denver Police Department

tha t Mr. Grav es would be receiv ing a pack age of cocaine in the m ail at one of two locations in Denv er.

Based on th is inform ation, ag ents of the Drug Enforcement Admin istrat ion inter cepted th e package and

obtained a search war rant for it. Th e package contained approxima tely 87 2 g ram s of 88 percent pur e

cocaine. A controlled delivery of the package was m ade the following day. Bry an Kuy kendall wa s

arr ested at the tim e of this controlled deliv ery .

II. JURY WAIVER

9

Ms. Walker a rg ues the distr ict court erred in all owin g th e case aga inst her t o proceed as a non-jury

trial. Ms. Walker's counsel filed a m otion w aiv ing her right to trial by jury . The m otion, h owev er, wa s

not signed by Ms. Walker, alt hough it did note her agr eement t o wa iv e. Because th e "wa iv er" of her


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right to trial by jury was inv alid, Ms. Walker urg es her conviction be v acated. We agree.7

1 0

We r ev iew the dist rict court's finding s of histor ical fa ct for clear error; howev er , t he qu estion of w hether

there h as been a denial of the right to a jury trial is reviewed de nov o. See Adams v . Peterson, 968 F.2d

835, 84 3 (9th Cir.1 99 2) (en banc) ("ultim ate question of voluntar iness [to a stipulated-facts trial] is

rev iewed de novo"), cert. denied, --- U.S. ----, 1 1 3 S.Ct. 1 81 8, 1 23 L.Ed.2d 4 48 (19 93 ); cf. United Statesv . Burson, 952 F.2d 1196, 1 1 99 (1 0th Cir.19 91 ) (rev iewing v oluntariness of a waiver of the right to

counsel de nov o ), cert. denied, --- U.S. ----, 1 1 2 S.Ct. 1 7 02, 1 1 8 L.Ed.2d 41 1 (1 99 2); United States v.

Wil liam s, 919 F.2d 1451, 1 455 (9t h Cir.1 99 0) ("Whether a [guilty ] plea is v oluntar y is a question of

federal law subject to de nov o rev iew"), cert. denied, 49 9 U.S. 968, 1 1 1 S.Ct. 1 604 , 1 1 3 L.Ed.2d 66 7

(1991) .

1 1

A c rim inal defen dant 's righ t to a t ria l by ju ry is a fundam ental right. Du nc an v . Louisia na , 391 U.S.

145, 14 9, 88 S.Ct. 1 444 , 1 447 -48, 20 L.Ed.2d 491 (19 68). This right may be waiv ed, howev er, if: (1 )

the waiv er is in writing ; (2) the gov ernm ent consents; (3) the tr ial court accepts the waiv er; and (4)

the wa iv er is knowing, int elligent, an d v olunta ry . F.R.Crim.P. 23 (a); Adam s v. United States ex rel.

McCann,317 U.S. 269, 27 5, 63 S.Ct. 23 6, 2 40, 87 L.Ed. 26 8 (1 942 ); Patton v . United States, 281 U.S.

276, 31 2, 50 S.Ct. 253, 263 , 74 L.Ed. 854 (19 30).

1 2

Ms. Walker first argu es her "waiv er" was inv alid because she nev er signed a writt en waiv er as required

by Rule 2 3(a). Th e requ ir em ent a defen dant giv e h er written consent to w aiv e the r ight to tr ia l by ju ryis intended to im press her w ith t he significance of th e righ t relin quished and prov ide ev idence of her

consent to forego that right. United States v. Martin, 704 F.2d 267, 27 1 (6th Cir.1 983 ); 8A James W.

Moore, Moore's Federal Pra ctice p 23 .03 [b] (2d ed. 1 99 4). Some circu it courts ha v e adopted the v iew

tha t noncompliance w ith Rule 23 (a) does not ipso facto render a w aiv er inv alid so long as there is an

effectiv e oral waiv er of the right on t he record.8E.g., United States v . Saadya , 750 F.2d 1419, 1420 (9th

Cir.1 985) (only exception to Rule 23(a)'s wr iting r equirement "is where the r ecord clearly reflects that

the defendant 'personall y gav e express consent in open cour t, int elligently and knowing ly .' " (Quoting

United Stat es v . Rey es, 603 F.2d 69(9th Cir.1 97 9)). In contra st, other circuits hav e concluded strict

compliance with the requirement s of Rule 23 (a) is necessary to waiv e a jury trial. E.g., United States v.

Garrett, 727 F.2d 1003, 1 012 (5th Cir.1984 ), aff'd, 471 U.S. 77 3, 1 05 S.Ct. 2407 , 85 L.Ed.2d 76 4

(1985).

1 3

Mindful of Rule 23 (a)'s wr iting r equirem ent an d the reasons for it, w e conclu de requiring strict

com pliance wit h Rule 23 (a) is not justified. In th ose circum stances where th e record clearl y reflects a

defendant's waiv er of the right is voluntar y , knowing, a nd intelligent, we see no practical justification

for finding a wa iv er inv alid simply because Rule 23 (a)'s writing r equirement ha s not been met. Cf.
http://openjurist.org/471/us/773http://openjurist.org/727/f2d/1003http://openjurist.org/603/f2d/69http://openjurist.org/750/f2d/1419http://openjurist.org/704/f2d/267http://openjurist.org/281/us/276http://openjurist.org/317/us/269http://openjurist.org/391/us/145http://openjurist.org/919/f2d/1451http://openjurist.org/952/f2d/1196http://openjurist.org/968/f2d/835


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United States v . Prichard, 875 F.2d 789, 7 90 (1 0th Cir.1 989) (per curiam) (holding that collateral

rev iew of the v alidity of a jury waiv er in the absence of a Rule 23 (a) writing is not av ailable absent any

indication the defendant w as prejudiced by "the tech nical er ror"). The Constitu tion requires only tha t a

waiv er of th e r ight to t ria l by jury be know ing, intell igent, a nd v olunt ar y . A dam s, 3 1 7 U.S. at 27 5, 63

S.Ct. at 24 0; Patton, 281 U.S. at 3 1 2, 50 S.Ct. a t 26 3. When the purposes of Rule 23 (a) hav e been

satisfied by means other t han a wr itten waiv er, little is serv ed by rigidly requiring compliance with

the Rule. See Brown v . Burn s, 996 F.2d 219, 22 1 (9th Cir.1 99 3) (per curiam). To conclude otherw ise

would, in our opinion, elev at e form ov er substa nc e. Ac cordingly , we hold w hile Rul e 2 3(a) should becomplied with in a ll cases, noncompliance will not necessarily inv alidate a wa iv er of the righ t to trial

by ju ry if t he w aiv er ca n oth erwise be show n to h av e been entered know ingl y , v olunt arily , an d

intelligently.

1 4

Second, Ms. Walker argues her waiver was invalid on the grounds nothing in the record indicates her

decision to wa iv e was knowin g, v olun tar y , and intelligent . More specifically , she contends it wa s error

for th e district court to accept th e waiv er of her jury trial r ight w ithout first inquiring a s to wheth er

she understood th e natu re of th e righ t and consequences of waiv ing it. There appears to be unan im ous

agreement among those circuits that have addressed the issue that trial courts should inform

defendants, on th e record, of the natu re of the righ t to trial by jur y and the consequences of waiv ing

tha t rig ht before a w aiv er is accepted--the only dispute being wh ether such a dialogue should be

ma ndated by a superv isory rule or strongly suggested to the district court s. Compare, e.g., United

States v. Scott, 583 F.2d 362, 36 4 (7 th Cir.1 97 8) (adopting mandatory superv isory rule requiring

district courts to interrogate defendants prior to accepting a jury trial w aiv er) with Cochran, 7 7 0 F.2d

at 85 2 (9t h Cir.1 98 5) (empha sizing distr ict courts should adv ise defendants on the record); Mart in,

7 04 F.2 d at 27 5 (expressing confidence district courts "will t ake a few momen ts and inform defendants

of their jur y tr ial rig ht on the r ecord "). See also 2 Ch arl es A. Wrig ht , Federal Pract ice & Procedur e:Criminal 2d Sec. 37 2 (1 982 ) ("It clearly is the better practice for th e court to interrogate th e defendant

personally , before accepting a waiv er of jury trial, to be sure t hat the defendant u nderstands his right

to trial by jury and the consequences of a w aiv er.").

1 5

Rule 23 (a) should be complied with in each and ev ery case. It is important t o recognize, howev er, th at

ev en in th ose cases wh ere the Rule is complied wit h, t his is no guar ant ee the waiv er comport s with

constitu tional requir ement s. "The genera l rul e is tha t a showin g th at th e defendant 's consent to waiv e

his right to a jury trial w as knowing, v olunta ry and intelligent is a necessary precondition to an

effectiv e Rule 23(a) jury trial wa iv er, one distinct from th e requirement t hat th e waiv er be wr itten."

8A Moore's Federal Practice p 23. 03[c]. By inform ing a defendant of her right to a trial by jury , th e

natu re of that right , and consequences of waiv ing it, district courts can insure such a w aiv er is va lid. A

court should not be satisfied of the v alidity of a w aiv er of this fundam ental r ight simply because the

requirements of Rule 23 (a) hav e been met.

1 6
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In recognition of the importan ce of a colloquy between th e defendant an d district court r egar ding th e

decision to wa iv e the r ight to trial by jury , w e join th ose circuits that , w hile declining to issue a

ma ndatory superv isory rule, strongly urg e district court s personally to inform each defendant of the

natu re of jury trials on th e record before accepting a proffered waiv er. See Cochran , 7 7 0 F.2d at 85 2-

53; Martin, 7 04 F.2d at 27 4; United States v . Anderson, 704 F.2d 117, 1 1 8-19 (3 rd Cir.), cert. denied,

464 U.S. 838, 1 04 S.Ct. 12 9, 7 8 L.Ed.2d 1 25 (1 983); United States v. Strother,57 8 F.2d 397, 404 -05

(D.C.Cir.1 97 8); United States v. Hunt , 413 F.2d 983, 984 (4th Cir.1 96 9). Giv en the significance of the

right to a jury trial a nd the importan ce of the decision to waiv e that right , we ha v e no doubt districtcourt s will insure such wa iv ers are knowing, v oluntar y , and intelligent by inform ing defendants, on

the r ecord, of the natur e of that right and th e consequences of waiv ing it.

1 7

Defendants should be inform ed that (1 ) tw elve m embers of the comm unity compose a jur y ; (2) th e

defendant m ay take part in jur y selections; (3) jury v erdicts must be unanim ous; and (4) th e court

alone decides guilt or innocence if the defendant w aiv es a jur y trial. See Cochra n, 7 7 0 F.2d at 853 ;

Martin, 7 04 F.2d at 2 7 4-75; United States v . Delgado, 635 F.2d 889, 890 (7th Cir.19 81).

1 8

When district courts prov ide t his in form at ion on the recor d, t hey help insur e that defen dant s

understand the basic mecha nics of a jury trial before deciding w hether t o waiv e that r ight. By asking

appropriate questions the district cour t w ill also be better able t o perform its task of determ ining

whether a proposed wa iv er is in fact bein g offered v olunt ar ily , knowing ly an d in tell igentl y . Final ly ,

the r ecord on appeal w ill be far more inform ativ e and helpful....

1 9

Cochran, 7 7 0 F.2d at 853.

20

Here, Ms. Walker did not sign th e writt en waiv er of her r ight to a jury trial submitted on her behalf. It

was sig ned only by her att orn ey .9As explained above, th is fact is not necessar ily fatal t o th e v alidity of

that waiv er. Unlike those cases where an unsigned or un writt en waiv er was held to be valid, however,

ther e is nothing in th e record before us indicatin g Ms. Walker personally un derstood her righ t an d

knowingly waiv ed it.10On the contrar y , th e record only rev eals Ms. Walker's attorney submitt ed a

motion to waiv e a jury trial. The governm ent apparently nev er consented to the waiv er. In an

unr elated m otions hearing following the submission of Ms. Walker's m otion, the district inform ed

counsel he would be receiving the court's order gra nting the m otion t o waiv e. The district court nev er

inquired as to the circum stances surr ounding th e waiv er an d no discussion w as ever held in the

presence of Ms. Walker r egarding her decision to waiv e the r ight to trial by jury . Under t hese

circum stances, there is no way for a rev iewing court to determ ine whether Ms. Walker's waiv er wa s

knowing, v olunta ry , and intelligent. This fact, coupled with the strong presum ption aga inst finding a

waiv er of funda m ental constitu tional r ights, see John son v . Zerbst, 304 U.S. 458, 58 S.Ct. 101 9, 82
http://openjurist.org/304/us/458http://openjurist.org/635/f2d/889http://openjurist.org/413/f2d/983http://openjurist.org/578/f2d/397http://openjurist.org/704/f2d/117


7/38



L.Ed. 1 46 1 (1 93 8), compels us to reject the gov ernm ent's argu ment th at her wa iv er is nev ertheless

v al id. Ac cepting the gov ernm ent's argu m ent would requ ir e u s to per m it the w aiv er of a fu ndam enta l

constitu tional rig ht ba sed on nothin g m ore than conjecture an d speculat ion. Th is we decline to do. The

righ t of tr ial by jur y is one enjoyed by th e people as well as defendants and cour ts should be hesitan t to

dispense with that right .

21

Accordin gly , w e hold Ms. Wal ker 's conv iction m ust be v ac at ed as th ere is n o ev iden ce in th e r ecor d to

indicate the waiv er of her right to trial by jury was knowing, intelligent, and v olunta ry at th e time it

was a ccept ed by the dist rict court. We rem an d to th e dist rict court with instr uct ions to a llow Ms.

Walker a tria l by jury .

III. PLEA AGREEMENT

22

Mr. Robertson a rgu es his conv iction mu st be rev ersed because the district court abused its discretion in

rejecting a plea agreement reached between th e gov ernm ent and him self. Mr. Torres argues his

unconditional gu ilty plea mu st be set aside on th e sam e grounds.

23

Approxim at ely th ree m onths aft er th e second super ceding indictm ent was fi led, the gov ernm ent

entered into plea agr eement s with Mr. Robertson an d Mr. Torr es. On Friday , May 7 --ten day s before

tr ial w as to begin--notices of disposition concern ing Mr. Robert son's and Mr. Torr es' case wer e filed in

district court. On Tuesday, May 11, counsel for the two defendants filed the original written pleaagr eements an d stipula tions of facts. The distr ict court th en issued a notice of hear ing for cha nge of plea

on Wednesday, May 1 2.

24

Mr. Robertson a nd Mr. Torres appeared before th e cour t r eady to enter pleas prepared pursua nt to

F.R.Crim .P. 1 1 (e). Mr. Robertson's plea agr eement pr ov ided tha t in exch ang e for dropping cer tain

charg es, he w ould plead guilty to others. The governm ent, pursuant to Rule 1 1 (e)(1 )(C), stipulated that

a 1 20-month sentence was appropriate. Mr. Torres agreed to plead guilty to certa in char ges in

exchange for dropping others. The governm ent stipulated that a 1 21 -month sentence was appropriate.

In a hea ring wh ich lasted less than t wo minu tes, the court r uled as follows:

25

The first problem is th at y ou're all in v iolation of the local ru le concern ing plea agr eement s ten day s

before tria l. You plead to t he in dictm ent, or y ou g o to tria l. Th at 's the r ule. I hav en't h eard any reason

to waiv e the ru le in this case.


8/38



26

Secondly , I'm n ot acceptin g 1 1 (e)(1 )(C) plea agr eements in th is case. If y ou w ant to plead to th e

indictm ent and t ake y our chances, then th at'll be someth ing t hat I'll take a look at. Otherwise, th is case

is going to trial nex t Monday .

27

Court 's in r ecess.

28

Tha t sam e day , Messrs. Robert son an d Torr es filed a pleading t itled "Motion to Waiv e Local Rule or, in

the A ltern ativ e, to Contin ue Tria l Date." In th is m otion, defense coun sel acknowledged they had not

strictly complied wit h th e district court's "inter nal ru le"11 requiring tha t a chan ge of plea hearing take

place no less than ten day s before tr ial, and r equested that rule be wa iv ed. The g ov ernm ent joined in

the m otion "as to th e request to wa iv e the Local Rule and Cour t's inter nal pr ocedura l requir ement s

rega rding ch ang es of plea." The motion was filed at 4 :34 p.m. a nd denied by m inut e order th e sam e

day.

29

On Thursday, May 1 3, a tr ial preparation conference was held, at which time Mr. Robertson an d Mr.

Torr es made a r ecord reg arding th e cour se of plea negotiations and both filed a m otion to reconsider t he

cour t's ru ling a nd rejection of the pleas th e day before. The court , affirm ing its prior rulin g, denied the

motion stating:

30

I am not at all h appy wit h th e way this case has progressed. It seem s to me the tr ial ha s been set well in

adva nce, y ou've all known t he ru les well in adv ance, and I hav e heard absolutely no justification for

this last m inute m aneuv ering on the plea negotiation.

31

My pr ocedures interpr eting t he Local Rule requir e not that I get a l ittle piece of paper t wo sentences at

the la st min ute t elling m e tha t th e case has been disposed of. I wa nt t he case disposed of by plea th e

Friday before tria l--th e penult ima te Friday before tr ial.

32

I don't h av e the lux ury , as I said, of continuing this case for a nother week. And w hat y ou a ll hav e done

by th is la st m inute maneuv ering is pu t the Court in a position w here I can't sch edule a ny thing else a t

this point. I can't get any other case to go to tr ial. I alr eady tr ied. I tr ied y esterday to get another ca se to

go to trial n ext week in th e event that this one could be tried at a nother time, a nd nobody can do it. An d


9/38



y ou a ll understa nd that becau se if t he roles w ere rev ersed, y ou w ouldn't be able t o do it either , I dare

say.

33

So I'm just not g oing to permit it. I'm going to enforce t he Local Rule a nd m y procedur es, a nd obv iously

ther e's a certa in bullh eadedness about th at becau se I'v e got plenty of oth er th ings to do besides tr y a

case....

34

So I'll enter tain nothing less than a plea to the indictm ent from a ll of the defendants, and otherw ise,

y ou're going to tr ia l.

35

Mr. Robertson declined to plead guilty to the indictm ent an d the case again st him proceeded to trial,

which la sted eig ht day s. He was conv icted and ev entual ly sent enced to l ife in prison. Mr. Torres, on the

adv ice of coun sel, entered an u nconditional plea of guil ty to the indictm ent an d was sentenced to 28 0

month s in prison and fiv e y ears superv ised release.

A. Th e Uncondit ional Plea of Guilty

36

Mr. Torr es entered an u nconditional plea of guil ty to the char ges against him . He concedes, as he mu st,

tha t entr y of an u nconditional gu ilty plea results in th e waiv er of all nonjur isdictional defenses. UnitedStates v . Dav is, 900 F.2d 1524, 152 5-26 (1 0th Cir.), cert. denied, 498 U.S. 856, 11 1 S.Ct. 1 55, 11 2

L.Ed.2d 1 21 (1 99 0). Mr. Torres argues, howev er, his plea mu st be withdraw n due to the ineffective

assistance of tr ial coun sel.

37

We h av e consistently held that th e pr efer red m ethod for challenging th e effect iv eness of coun sel is by

collat eral a tta ck pursuan t to 28 U.S.C. Sec. 225 5, because such claim s often requir e considerat ion of

ev idence not contained in th e record on appeal. See United States v . Galloway ,32 F.3d 499, 501 -02

(10 th Cir.1 99 4) (citing Beaulieu v . United States, 930 F.2d 805, 806-07 (10th Cir.1 991 )). Mr. Torres

arg ues his trial counsel was ineffectiv e for th ree reasons, tw o of which concern alleged representat ions

ma de by counsel to Mr. Torr es concerning h is guilt y plea. There is nothin g in th e record before us

bearing on w hether, an d under what circu m sta nces those representa tions w ere m ade. Th e thir d basis

alleges the failur e to comply wit h th e district court 's inter nal r ule constitu ted ineffectiv e assistance of

coun sel. While it is clear from t he record the r ule w as not complied with , th e reasons for noncomplianc e

and circum stances surr ounding it are not fully elucidated in th e record.

38


10/38



As su ch , Mr. Torres' ineffectiv e assista nc e of counsel claim cannot be a ssessed in th is pr oceeding.

Because his ar gum ent concerning th e district court 's denial of th e plea agreem ent is prem ised on th at

claim , th at a rg um ent ca nnot be assessed as it perta ins to Mr. Torres in this proceeding eith er. We note,

however, Mr. Torres has preserved the issue for collateral attack under 28 U.S.C. Sec. 2255. Therefore,

we dism iss this cl aim wit hout preju dice to Mr. Torres' righ t to pu rsue relief u nder Sec. 2 255 . See Unit ed

States v. Ya tes, 22 F.3d 981, 986 (10th Cir.1 994).

B. Mr. Robertson's Plea

39

The district court based its decision t o reject Mr. Robertson's guilty plea on four independent grounds:

(1) the local rule h ad not been complied with; (2) the intern al r ule had n ot been complied with; (3)

considerat ions pert ainin g to the docket an d scheduling calendar of th e distr ict court ; and (4) t he court

categorically would not accept any pleas pursuant to 11 (e)(1 )(C). We address each ra tionale in tu rn.

40

Local Rule 4 0.1 H United States Distr ict Court for t he District of Colorado, prov ides: "No plea agr eement

inv olv ing dismissal of cha rg es will be accepted unless wr itten n otification of the agr eement is receiv ed

by th e cou rt no later th an ten (1 0) day s before the Monda y of th e w eek set for t he trial. " On Friday , Ma y

7 , Mr. Robertson presented wr itten n otification a plea agr eement h ad been reac hed. Trial w as set to

comm ence on Monday , May 1 7 . The ten-day notification r equirem ent of the local rule wa s met.

41

The distr ict court's order suggests, howev er, th e local r ule wa s not com plied wit h because thenotification giv en was inadequate. A t th e May 1 3 trial preparat ion conference, the district court, in

affirm ing th e conclu sion th at t he local rule ha d not been com plied wit h, r eferred not to dates and th e

ten-day n otification requirem ent but r ath er, th at "the Local Rule require[s] not that I get a little piece

of paper tw o sentences at t he last m inut e telling m e tha t t he case has been disposed of."

42

The "littl e piece of paper" referred to was th e gover nm ent's notification, filed on May 7 , w hich stated:

43

COMES NOW the United Stat es of Amer ica (her einafter "Gov ernm ent"), by and th rough its undersigned

Assistant United St at es At tor ney , t o notify the cour t th at a plea disposition has been reach ed in th e

above-captioned case. Undersigned coun sel is filing this notice a t t he r equest of counsel for th e

defendant, Mr. Ja pha, wh o is out of the stat e on lega l business.

44


11/38



We find nothing ambig uous about this docu m ent. It sta tes a disposition had been reach ed bet ween Mr.

Robertson a nd th e gov ernm ent a nd notified the court Mr. Robertson in tended to chang e his plea of not

guilty to guilty . While it is clear t he notification could hav e said someth ing m ore about t he term s of the

plea agreement, it is equally clear the failure to do so is immaterial. Local Rule 40.1H requires not that

the t erm s of an ag reem ent be detailed, only tha t a district cour t be inform ed of the existence of an

agr eement. There is no doubt bu t Mr. Robertson's "wr itten notification of the a greem ent," Rule 4 0.1 H,

was just t hat--written notifica tion of the agr eem ent. Mr. Robert son's noti fication that a plea ag reem ent

had been reach ed com plied wit h Local Rule 40. 1 H and, th erefore, ca n not support t he distric t court 'sdecision t o reject th e plea.

45

The district court 's second ra tionale for r ejecting Mr. Robertson's plea agr eement wa s the failur e to

comply with the court's internal rule r egarding plea agr eements. The r ule provides:7. Changes of Plea. I

strictly enforce th e prov isions of local r ule 40 .1 H and require th at a ll proposed pleas of guilty be heard

no later th an ten day s before the beginning of the week in which tr ial is set to comm ence. In order to

av oid last-minute un certainty in the scheduling, trav el, and appearan ce of trial w itnesses and jurors in

the ev ent th at t he plea of guilty is not accepted, such hear ings will ordinarily be set for t he Friday of the

penultim ate w eek before th e week of trial. A copy of the "Plea Ag reem ent an d Statem ents of Facts

Relev ant t o Sentencing " (see Genera l Order 19 87 -5 [D.Colo. Dec. 1 , 1 98 7 ] sha ll be deliver ed to m y

chambers no later than (a) 5:00 o'clock p.m. on the Wednesday preceding a Friday hearing or (b) 48

hours before any hearing which ma y , because of extraordinary circum stances, be scheduled at another

time.

46

Rule III.7 .

47

Mr. Robertson ar gu es th is inter nal r ule can not be giv en effect as it conflicts wit h th e applicable Local

Rule for the District of Colorado. In response, th e gover nm ent a sserts it m akes no difference w heth er t he

ru le v iolat ed was the local r ule or th e cour t's inter nal ru le because Mr. Robertson "wa s on notice of wh at

was r equ ir ed, an d the pa rties did not a tt em pt to comply unt il just before tria l. Th is is u nt im ely ."

48

Rule 57 of the Federal Rules of Crim inal Procedur e prov ides, in pert inent par t:

49

Each district court by action of a majority of the judges thereof ma y from time to tim e, after giv ing

appropriate public notice and an opportu nity to comm ent, m ake and am end rules gov erning its

pract ice not inconsistent w ith t hese rules.... In all cases not provided for by r ule, t he distr ict judges and

ma gistrat e judges may regulat e their practice in any ma nner not inconsistent w ith th ese rules or th ose


12/38



of the district in which t hey act.

50

F.R.Crim .P. 57 (empha sis added).

51

Local Rule 40.1 H prescribes the requirem ents for notify ing a court of the existence of a plea agreem ent.

Adopt ion of th at rule clearly is w ithin th e Dist rict of Colorado's power under Rule 57 . Rule 57 , howev er ,

perm its the adoption of interna l ru les only w hen tw o circu msta nces exist. First, the distr ict as a wh ole

has not adopted a rul e bearing on th e sam e ma tter , an d second, so long as the inter nal r ule is not

inconsistent wit h th e federal r ules or other district -wide ru les.

52

The distr ict court 's inter nal r ule gov erns cases for w hich a local ru le is provided. Both a ddress the

procedural requirements for notification a plea agreement has been reached.12 As such, adoption of the

distr ict court 's interna l ru le is proscribed by Rule 57 . Th e fact defendant s had notice of the district

cour t's inter nal ru le, as th e gover nm ent points out , is inapposite. The distr ict court 's interna l Rule III.7

cann ot be giv en effect as it v iolates the dictates of Rule 57 . Thu s, noncomplian ce with t hat ru le does not

provide a perm issible basis for t he r efusal t o accept the proposed guilt y plea.

53

The district court a dditionally rejected Mr. Robertson's plea ag reem ent on th e gr ounds it w ould "not

accept[ ] 11(e)(1)(c) plea agreements in this case" and concerns relating to the court's calendar. Mr.Robertson a rgu es the district court erred in rejecting t he tendered plea agr eement w ithout ar ticulating

a sound r eason for doing so. Th e gr av am en of the gov ernm ent's response is th at "blanket prohibition of

particular pleas likely is not err or" and giv en the district court 's long inv olv ement in the case, it is

likely the court did not err in rejecting th e pleas.13

54

In addressing t he question of whether, and under w hat circum stances a district court ma y reject a plea

agreement entered into between th e defendant and gov ernm ent, our starting point is Rule 1 1 which

describes the procedur es for the a cceptance or r ejection of those agr eement s. Rule 1 1 (e)(2) prov ides "th e

court ma y accept or r eject th e agreement." While Rule 1 1 v ests district courts with the discretion to

accept or reject plea a gr eement s, the r ule does not define the cr iteria to be applied in doing so. See 1

Charles A. Wright, Federal Practice & Procedure Sec. 1 7 5.1 (1 982 ). On the contrary , so long a s district

cour ts exercise sound judicial discretion in rejecting a tendered plea, Rule 11 is not v iolat ed. Santobello

v . N ew York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 3 0 L.Ed.2d 427 (197 1 ).

55
http://openjurist.org/404/us/257


13/38



In at tem pting t o identify th e param eters of the abuse of discretion standar d in this context , it is

importan t t o distinguish between th e four ty pes of plea bar gains contemplated under Rule 1 1 (e)(1 ):

cha rge bar gain s, predicated on th e dism issal of some counts; sentence bar gain s, predicated eith er on th e

recomm endation of or ag reem ent not to oppose a par ticu lar sentenc e; bargain s predicated on th e

guar antee of a particular sentence; and hy brid barga ins containing part cha rge and part sentence

barga ins. The different ty pes of plea barga ins im plicate different ty pes of discr etion and power.

56

Both form s of sentenc e bargain s im plicate judicial discretion by lim iting t he senten cing power of th e

district court. United States v. Miller, 722 F.2d 562, 564 (9th Cir.1 983 ). Within the statutorily

prescribed ra nge, im position of sentence is a m att er of discretion for the district cour t. 3 Char les A.

Wright, Federal Pra ct ice & Procedure Sec . 52 6 (1 982 ) (c it ing United States v . T ucker, 404 U.S. 443,

44 6, 9 2 S.Ct. 589 , 591 , 30 L.Ed.2d 592 (1 97 2)). Thus, the prosecution's role in sentencing bargains is

strictly adv isory . United States v. Adam s, 634 F.2d 830, 835 (5th Cir.19 81).

57

In contrast, ch ar ge barga ins implicate execut iv e discretion wit h respect to cha rg ing decisions.

Char ging decisions are prim aril y a m att er of discretion for th e prosecut ion, th e representa tiv es of the

executiv e branch of governm ent, wh o "are not mere serv ants of the judiciary ." Miller, 7 22 F.2d at 565.

Case law clea rly establishes tha t separa tion of power s m andat es th e judiciary rem ain independent of

executiv e affairs and v ice versa. See Bordenkircher v . Hay es, 434 U.S. 357, 364, 98 S.Ct. 663 , 668-69,

54 L.Ed.2d 604 (19 7 8); United States v. Cox, 342 F.2d 167, 1 7 1 (5th Cir.), cert. denied, 381 U.S. 935,

85 S.Ct. 1 7 67 , 1 4 L.Ed.2d 7 00 (1 96 5). This principle is also established by t he Federal Rules of Criminal

Procedure.14

58

Though ch arg ing decisions implicate execut iv e power , they also im plicate the sentencing discretion of

district courts. See Carr igan, 7 7 8 F.2d at 1 46 4 (r ecognizing, in dicta, that char ging decisions "restrict

the district cour t's ability to impose wh at it considered an appropriat e sentence."). Howev er, t he court's

sentencin g discretion is implica ted only as an incidental consequence of the prosecution's exercise of

executiv e discretion. In fact, a court's senten cing discretion is im plicated in th is situa tion in precisely

the sam e man ner it is implicat ed by prosecutorial decisions to bring ch arg es in th e first place, wh ere

prosecutorial discretion is nearly absolute. As such, ch arge bar gains directly and prima rily implicate

prosecutorial discretion wher eas judicial discretion is impacted only secondar ily . Thu s, while district

cour ts may reject cha rg e barga ins in the soun d exercise of judicial discretion, concerns relatin g to the

doctr ine of separa tion of powers coun sel hesitancy before second-guessing prosecut orial ch oices.

59

Cour ts do not know which cha rges are best initia ted at wh ich tim e, United Stat es v . Lov asco, 431 U.S.

783, 79 3-94 [97 S.Ct. 2044 , 2050-51, 52 L.Ed.2d 75 2 (1 97 7 ), which allocation of prosecutorial

resour ces is most efficient, United Stat es v . Am m idown , 497 F.2d 615, 621 (D.C.Cir.19 7 3), or the
http://openjurist.org/497/f2d/615http://openjurist.org/431/us/783http://openjurist.org/342/f2d/167http://openjurist.org/434/us/357http://openjurist.org/634/f2d/830http://openjurist.org/404/us/443http://openjurist.org/722/f2d/562


14/38



relat iv e str engt hs of v ar ious cases and ch ar ges. See Vorenberg, Decent Restr aint of Prosecutorial Power ,

94 Harv.L.Rev. 1521 , 1547 (1981 ).

60

Miller, 7 22 F.2d at 565.

61

A district court's discretion to reject plea ag reem ents is not without lim it and v ar ies depending on t he

conten t of such a bar gain . Accordingly , we hold that in order to insur e district court s exercise soun d

judicia l discretion an d adequ ately respect th e pr inciple of prosecutor ia l independence, courts must set

fort h, on th e record, the pr osecut ion's reasons for fra m ing t he bar gain and th e cour t's justification for

rejecting it. See Moore, 9 1 6 F.2d at 1 1 35-36 (requiring district court s to articulate a sound reason for

rejecting a gu ilty plea on th e record); Miller, 7 22 F.2d at 56 6 (same); United States v . Delegal, 678 F.2d

47, 50 (7t h Cir.1 982 ) (sam e); Am midown, 4 97 F.2d at 623 (same). Requiring district courts to

articula te the r easons for r ejecting a plea ag reement n ot only helps insure the court is awa re of and

giv es adequate deference to prosecutorial discretion, it is the surest, indeed th e only wa y to facilitate

appellate r ev iew of rejected plea barg ains. Mindful of th ese principles, we t ur n t o Mr. Robertson's

proffered plea ag reem ent a nd th e distr ict court 's rejection of it.

62

Mr. Robertson's plea ag reement w as neither a pure char ge bargain nor a pure sentence bargain, but a

hy brid. In excha nge for dism issing cert ain ch ar ges, he agreed to plead guilty to oth ers. In addition, th e

gov ernm ent ag reed a par ticu lar sentence wa s appropriate for th e char ges to wh ich Mr. Robertson pled.

Thu s, the plea agr eement directl y implica tes both ju dicial and prosecut orial discretion.

63

The distr ict court ex pressed concern pertain ing t o its docket as a ra tionale for r ejecting t he plea

agreement. The court stated:

64

I don't h av e the lux ury , as I said, of continuing this case for a nother week. And w hat y ou a ll hav e done

by th is la st m inute maneuv ering is pu t the Court in a position w here I can't sch edule a ny thing else a t

this point. I can't get any other case to go to tr ial. I alr eady tr ied. I tr ied y esterday to get another ca se to

go to trial n ext week in th e event that this one could be tried at a nother time, a nd nobody can do it. An

y ou a ll understa nd that becau se if t he roles w ere rev ersed, y ou w ouldn't be able t o do it either , I dare

say.

65

So I'm just not g oing to permit it.


15/38



66

In our judgm ent, rejecting Mr. Robertson's plea ag reem ent for th is reason constitut es an abu se of

discretion. See Moore, 9 1 6 F.2d at 1 1 36 n. 1 1 (wh en no plea cutoff date has been m issed and "th e

Gov ernm ent m akes its first plea offer to a defendant t he m orn ing of tr ial an d defendant accepts, the

rejection of the plea un der those circum stances may well constitut e an abu se of discretion."). While

ther e is no doubt a district court ha s considerable auth orit y in m ana ging it s docket, scheduling

concern s alone ar e not of sufficient im port ance t o justify the in fringem ent of prosecut orial discretionresulting here. A s explained abov e, Mr. Robertson's plea agr eement direct ly implica ted both ju dicial

and prosecutorial discretion. While the distr ict court h as considera ble leewa y in rejecting th e bargain

based on its sent encing aspect , i ts discr etion is m ore lim ited w hen it s decision i s based on t he ba rga in 's

charg ing aspect. In our judgment, rejecting a plea im plicating both branches of gov ernm ent solely out

of concern for t he district court's scheduling is, under t he fact s of this case, im perm issible.

67

Lastly, in rejecting th e plea, the district court flatly stated that n o "1 1 (e)(1 )(c) plea a greements" would

be accepted in the case. While no ra tionale for doin g so wa s ar ticula ted, t he im port of th e dist rict court's

statem ent is clear. Rule 11 (e)(1 )(C) agreements are th ose in wh ich the govern ment g uara ntees a

particular sentence to a defendant. As such, 1 1 (e)(1 )(C) pleas directly and unequiv ocally infringe on

the sentencing discretion of distr ict court s. In our judgm ent, t he court's categ orica l refusal to accept

pleas pursuant to subsection (C) ca n only be understood as its refusal to com pletely y ield its discretion in

sentencing. There can be little doubt that rejecting a plea agreement due to the court's refusal to permit

the part ies to bind its sentencing discretion constitut es the exer cise of soun d judicial discretion.

68

As n oted abov e, a district court's discretion to sent ence within th e applicable r an ge is ex trem ely broad.

Because 1 1 (e)(1 )(C) agr eement s att empt to com pletely cu rt ail tha t discretion, a distr ict cour t's decision

to preserv e th at aspect of judicial power is not an abuse of discretion. We conclude, t herefore, th e distr ict

cour t's refusal to accept Mr. Robertson's plea of guilty wa s based, in par t, on r easons tha t constitut e the

sound exer cise of judicial discretion and th us, th e cour t's rejection of the plea a greem ent ca nnot be

overturned on appeal.

IV. TRIAL

69

* Mr. Robertson an d Mr. Grav es argu e the district court erred in refusing t o empanel a new jur y . The

v enir e dr awn consisted of one A frican Am erican . Th is pr ospectiv e ju ror w as exc used due to her prev ious

plans for a v acat ion in Europe for w hich she had prepaid. No objection w as ma de to her ex cusal. Messrs.

Robertson and Gra v es do not arg ue th e jury pool itself wa s im proper, or tha t it w as error to ha v e

excused this single juror, or that the gov ernm ent improperly stru ck this potential jur or. Rather, t he

argu ment is the district court err ed in failing to empanel more African Am erican jur ors or em paneling

an ent irely new pool of prospectiv e jurors once th e sole African Am erican in th e origin al pool ha d been


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excused, becau se the jur y pool no longer represented a fair cr oss section of the comm un ity .

7 0

A district court's decisions rela ting to er rors in ju ry selec tion for a cr im inal t ria l a re r ev iew ed u nder an

abuse of discretion standar d. See United Stat es v. Washita Constr. Co., 789 F.2d 809, 819 (10th

Cir.1 986 ) (citing Rosales-Lopez v . United States, 451 U.S. 1 82, 1 89, 1 01 S.Ct. 16 29 , 1 63 4-35, 68

L.Ed.2d 22 (1 981 )). A crim inal defendant has a Sixth Am endment righ t to a jur y pool comprised of afair cr oss section of the comm unit y . U.S. Const. am end. VI; Duren v . Missour i, 439 U.S. 357, 358-59, 99

S.Ct. 664 , 66 5-66 , 58 L.Ed.2d 57 9 (1 97 9). A v iolation of this right occurs when a defendant is tried by

a jur y draw n from a sour ce tha t, due to sy stemat ic exclusion of a distinct iv e group, fails to reflect a fair

cross section of the com mu nity . Tay lor v . Louisiana , 419 U.S. 522, 531 , 95 S.Ct. 692 , 698, 4 2 L.Ed.2d

690 (1 97 5).

7 1

Mr. Robertson a nd Mr. Grav es hav e ma de no attem pt to show tha t an y systematic exclusion of African

Am ericans occurred h ere. By ch ance, the v enir e had one A frican Am erican mem ber who, aga in by

chance, h ad prev iously existing plans that justified her excusal. Under these circumstances, it cannot

be said t hat Messrs. Robert son's and Gr av es' Sixth Am endm ent rights h av e been v iola ted. Th e dist rict

cour t did not abuse its discretion in refusing to empanel a n ew jur y .

B

7 2

Mr. Robertson an d Mr. Gr av es ar gu e the distr ict court er red in permit ting Bern adette Toney to testifyon behalf of the gov ernm ent. The a rgu ment is twofold, premised on (1 ) the contention th e gov ernment

unt imely disclosed prev iously ordered inform ation concern ing th e witness and (2) th e phy sical

condition of the w itness durin g her testimony . We rev iew th e distr ict court 's decision to admit

testimony of a w itness for abuse of discretion. United Stat es v. Pino, 827 F.2d 1429, 1430 (10th

Cir.1987).

1 .

7 3

Four m onth s prior to tria l, th e district court g ran ted a motion filed by Ms. Walker for impeachin g

inform ation wh ich inclu ded a request for Ms. Toney 's records relat ing t o her m enta l and phy sical

history . Messrs. Robertson a nd Gra v es joined in th is motion. A fter a nu mber of oth er m otions were filed,

the c our t ordered the bu lk of the r ecords be giv en to defense counsel. It is alleged com plete records

concern ing Ms. Toney's m ental a nd phy sical history wer e nev er produced, though som e of those records

were r eceiv ed by defen se counsel by noon on t he Fr iday preceding tria l a nd oth ers ov er the w eekend

prior to trial.
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7 4

Coun sel for Mr. Robertson a nd Mr. Gr av es renewed their m otions to exclude Ms. Toney 's testim ony prior

to th e testim ony of the gov ernm ent's first witness, arg uing t he records provided were not tu rned ov er

timely , th e records were incomplete, and th ere had been n o opportu nity to consult with an expert

rega rding t he significance of the records tha t wer e produced. No allega tion was or is made tha t th ese

v iola tions w ere the r esult of bad faith on t he pa rt of th e pr osecution. Th e dist rict court, in deny ing th e

motion, expressly foun d no bad faith .

7 5

Messrs. Robertson a nd Grav es assert th ere wa s insufficient tim e to rev iew th e records and consult w ith

an expert about them . Specifically , th ey argu e the discov ery v iolations limited their ability "to ask

specific facts regarding Ms. Toney's phy sical a bility to remem ber m atters th at migh t be phy siologically

affected by her dru g addiction an d abuse."

7 6

If at any time a court is inform ed of a discov ery v iolation, it m ay order a party to permit discov ery ,

gra nt a continu ance, prohibit int roduction of the undisclosed ev idence, or "it m ay enter such other

order as it deems just under th e circu msta nces." F.R.Crim .P. 1 6(d)(2). Here, t he court ordered Ms.

Toney sign a release for additional informa tion, inform ed the gover nm ent she would not be allowed to

testify if a r elease were not signed, and sug gested additional defense counsel be appointed to consult wit h

an expert dur ing th e trial. Under th ese circum stances, our r eview of the r ecord conv inces us the district

court did not err in perm itting Ms. Toney to testify and the drastic rem edy of v acating a conv iction for

the v iolation of a discov ery order is not w arr anted here, particular ly in light of the fact th at n o bad

faith has been alleged or found. See United Stat es v. Dennison,891 F.2d 255

, 260 (10th Cir.19 89), cert.denied, 496 U.S. 937 , 11 0 S.Ct. 32 1 5, 1 1 0 L.Ed.2d 663 (1 99 0) (absent bad faith or prejudice, the

extr eme sanct ion of dism issal of an in dictmen t gener ally is not appropriate sanct ion for discov ery

v iola tions).

7 7

Messrs. Robertson a nd Gra v es acknowledge the t ria l court perm itted exten sive cr oss-exam inat ion of Ms.

Toney . Our r ev iew of th e record indicates defense coun sel questioned Ms. Toney extensiv ely rega rding

her dru g addiction and use as well as her ability to remem ber past ev ents. On cross-exam inat ion Ms.

Toney admitted, inter a lia, she had been a heroin a ddict, a heav y and prolonged user of crack cocaine,

had used cra ck cocaine sev eral tim es a day durin g th e period she was testify ing about, h ad suffered

mem ory problems resulting from her drug abuse, ha d hearing problems, was a m ethadone user, a nd

had used m etha done the day she appeared in cour t to testify . Finally , Ms. Toney adm itted she wa s

addicted to m etha done, gr eatly feared the prospect of not being able to use it, ackn owledged m etha done

was n ot a v ai la ble in pr ison, an d that in exch ang e for her testim ony she would not be goin g to prison.

7 8


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In short , counsel th orough ly im peached the wit ness wit h r espect to the precise chara cteristics the

sough t after docum ents were int ended to rev eal, i.e., Ms. Toney 's dru g use and th e effect of that use on

her m emory . In addition, w e note Ms. Toney w as only one of man y prosecution wit nesses wh o

implica ted Mr. Robertson an d Mr. Gr av es in th e crim es cha rg ed.

7 9

Messrs. Robertson an d Grav es hav e ma de no att empt t o point t o any specific prejudice ar ising fr om thediscov ery v iolations nor hav e they ma de any argu ment concerning the effect on the jury . See United

States v. Behrens, 689 F.2d 154, 158 (10th Cir.1982) (defendants failed to demonstrate late disclosure of

evidence depriv ed them of a fair trial; alth ough cross-examina tion m ay hav e been enhanced with th e

ev idence, no reasonable doubt a s to guilt tha t did not otherw ise exist was shown ), cert. denied, 45 9 U.S.

1 088, 1 03 S.Ct. 57 3, 7 4 L.Ed.2d 934 (1 982 ). Thus, we hold the failure of the gov ernment t o produce

all of the requested docum ents "would not hav e necessarily affected the outcome of th e tria l." United

States v. Cr outh ers, 669 F.2d 635, 641 (1 0th Cir.1 982 ) (citing Giglio v . United States, 405 U.S. 150, 9 2

S.Ct. 7 63 , 3 1 L.Ed.2d 1 04 (19 7 2)). As such, Messrs. Robertson an d Grav es were not denied their right

to a fair trial by v irtue of the alleged discov ery v iolations. Howev er, we cau tion gov ernm ent counsel

against last-minu te filings, w hich do little to promote the search for t rut h a nd mu ch t o provide

defendants with legitimate grounds for appellate review.

2.

80

Mr. Robertson an d Mr. Gr av es also ar gue t he distr ict court err ed in deny ing t heir m otion to exclude Ms.

Toney 's testimony due to her ph y sical condition at tr ial. Dur ing t he course of her t estim ony , a side-bar

conference wa s held, at wh ich t ime t he court stat ed Ms. Toney 's demean or ca used it to believ e she wa s"on som ethin g." Coun sel for th e defense requested a ur inaly sis be done so they could effectiv ely cross-

exam ine the w itness. The distr ict court denied the request noting Ms. Toney m et th e stan dards for a

com petent w itness and conclu ded:

81

I'm just reluctant in t his case to require a ur inaly sis, wh ich is in interference with her r ights, any way .

I think t hat y ou've draw n out as mu ch as y ou can possibly draw out an d I don't see that a ur inaly sis

would help us th at m uch . It might dem onstrate that she's--at m ost--that she's still u sing cr ack a nd if

she's still using crack, I would think that that 's basically cum ulativ e, any way . Seems to me tha t she's

been effectiv e[ly ] im peach ed as a drug addict.

82

In our opinion, th e distr ict cour t did not abuse its discretion in refusing t o order Ms. Toney submit to a

ur inaly sis. As our discussion a bov e ma kes clear , an d as the district court observ ed, Mr. Robertson an d

Mr. Grav es cross-exam ined the witn ess extensiv ely and am ply demonstr ated her u se of and dependence

on dru gs as well as the effects those drugs had on her. Th is, in conjun ction with the fact a court -ordered
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urinaly sis undoubtedly would infringe on Ms. Toney 's priv acy right s, cf. Pino, 82 7 F.2d at 1 43 0,

support s the conclu sion th e distr ict court wa s well with in its discretion in all owin g th e witn ess to

testify. The failure to order a u rinaly sis did not encum ber the ability to effectiv ely cross-examine t he

witness to such an extent as t o deny Messrs. Rober tson an d Gr av es a fair tr ia l.

C

83

Mr. Grav es ar gues ther e was insufficient ev idence to support th e distr ict court 's finding a conspiracy

existed so as to allow co-conspirat or h earsay statem ents. In a ddition, he ar gues th e ev idence presented

at t rial w as insufficient to support th e jury 's finding of guilt. We disagr ee.

84

"In ev aluat ing t he sufficiency of the ev idence, we m ust v iew the ev idence--both direct an d

circum stant ial, together w ith all r easonable inferences to be drawn therefrom--in th e light most

fav ora ble to the gov ernm ent." United States v . Hooks, 780 F.2d 1526, 1 529 (1 0th Cir.), cert. denied, 47 5

U.S. 1 1 28, 1 06 S.Ct. 1 657 , 90 L.Ed.2d 19 9 (1 986 ). A motion for judgment of acquittal is properly

denied if any ra tional tr ier of fact could hav e found th e essentia l elements of the crim e bey ond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 31 9, 99 S.Ct. 2781 , 27 89, 61 L.Ed.2d 560 (197 9).

In order to adm it co-conspirat or statem ents, the offering par ty m ust prove by a preponderan ce of the

evidence a conspiracy existed of which the defendant wa s a part. Bourjaily v . United States, 483 U.S.

17 1, 107 S.Ct. 277 5, 97 L.Ed.2d 144 (19 87).

85

The essence of a drug c onspiracy is an agr eement between tw o or more persons to comm it federal drug

offenses. The evidence, whether direct or circumstantial, "must support a finding that the conspirators

had a un ity of purpose or a comm on design or understan ding." Because a crim inal conspirac y by its

nat ur e is usuall y shrouded in a fur th er conspiracy of silence, th e comm on plan or purpose mu st often

be, an d m ay leg it im at ely be, prov ed by circu m sta nt ia l ev iden ce.

86

United States v . Stag gs, 881 F.2d 1546, 1 550 (10t h Cir.1 989 ) (citations omitt ed).

87

Prior t o the distr ict court 's rulin g on th e admissibility of the co-conspirat or's statem ents, th e testimony

established, inter alia, Mr. Gra v es associated w ith Ms. Walker , Mr. Robertson, a nd Mr. Torres; he sold

cra ck cocaine at th e org anization locations; he dealt cra ck cocaine with v ar ious persons; he wa s present

when there w as a raid at one of t he org an ization's houses on Marion Street; h e han dled cr ack cocaine

with Mr. Robert son; h e h an dled ca sh al ong with Mr. Torr es; gav e m oney to Mr. Rober tson at lea st a

hal f-dozen tim es; provided crack cocaine for Mr. Sh erm an to sell; and ha d Ms. Toney rent hotel room s
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for h im w hich wer e used for t he sale of crack cocaine.

88

Mr. Grav es argues no ev idence was presented establishing he actu ally entered into an a greement with

any one to violate the law by distributing crack cocaine. While Mr. Grav es is correct in noting t he

testimony did not show an express agr eement , it provides a sufficient circu m stantia l link between Mr.

Grav es and th e conspiracy as charged. See United States v . Sav aiano, 843 F.2d 1280, 1294 (10thCir.1 98 8) (connection of defendant to conspiracy need only be sligh t if ev idence establishes that

connect ion bey ond a reasonable doubt). As noted abov e, th e existence of an ex press agr eement is not a

necessar y precondition of finding a conspiracy to v iolate t he law s. United Stat es v . Roberts, 14 F.3d 502,

512 (10th Cir.1 993 ); Staggs, 881 F.2d at 1 550.

89

The testimony presented and the r easonable inferences that can be draw n t herefrom inescapably lead

to the conclu sion a conspiracy existed to distribute cr ack cocaine of which Mr. Grav es wa s an ac tiv e

mem ber. As such , we conclude th e evidence w as sufficient both to perm it th e admission of co-

conspirator h earsay statem ents and to support the ju ry 's v erdict.

V. SENTEN CING

90

* Mr. Torres argu es the gov ernm ent breached the plea agreement accepted by the district court by

agreeing t o recomm end one sentence and then r ecomm ending another.

91

Whether the gov ernm ent v iola tes a plea ag reem ent is a question of law subject to de nov o rev iew .

United States v . Shorteeth, 887 F.2d 253, 256 (10 th Cir.1 989 ). "[W]hen a plea rests in any significant

degree on a promise or a gr eement of th e prosecutor, so that it ca n be said to be part of the inducem ent or

considerat ion, such promise mu st be fulfilled." Sant obello, 40 4 U.S. at 2 62 , 92 S.Ct. at 49 9; see also

United Stat es v . Pogu e, 865 F.2d 226, 22 7 (1 0th Cir.1 989 ); United States v . Greenwood, 812 F.2d 632,

63 7 (1 0th Cir.1 987 ). In determ ining wheth er the gov ernm ent has v iolated the terms of a plea

agreement, the court m ust look at wha t th e defendant r easonably understood when th e guilty plea w as

entered. United States v. Hand, 913 F.2d 854, 856 (1 0th Cir.1 99 0); Shorteeth, 887 F.2d at 256 ; Pogue,

865 F.2d at 227 .

92

The plea agr eement Mr. Torr es signed prov ided, in pertin ent par t, a s follows:

93
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F. The parties understand that the stipulation r egarding crim inal history of the defendant is tentativ e,

and that the defendant is in a better position to know t he relev ant facts than is the governm ent. The

crimina l history category is more completely and accurat ely determ ined by the Probation Departm ent

and additional facts regarding the crim inal history can gr eatly affect th e final guideline range.

Nev erth eless, wha t is known of the defendant 's crimin al h istory is as follows: 3 a dult felony conv ictions.

Based on th at in form ation, if no oth er informa tion were discov ered, the defendant 's crimin al h istory

category would be Category V.

94

....

95

H. The guideline range r esulting from the offense lev el of (E) abov e, and th e (tentativ e ) crim inal

history category of (F) abov e, is 1 40-17 5 m onths. The parties contemplate th at a Section 5K1. 1 motion

will be filed, recom m endin g a down war d depa rture to a sen tence of 1 21 m onths.

96

In its Sec. 5K1.1 motion, th e gov ernm ent stated:

97

2. Th e gov ernm ent agr eed to recomm end a departur e to 12 1 months upon its pre-plea belief that

defendant's resulting g uideline range would be 1 40-17 5 m onths, m eaning tha t the departure un der th e

Section 5K1 .1 m otion would be 19 -54 m onths. Ev en if the cour t determ ines defendant t o be a careeroffender, the g ov ernm ent's recomm endation for downw ard departure rema ins the same (1 9-54

month s) based upon the v alu e of the informa tion provided.

98

3. Wherefore, th e governm ent recommends a downw ard depart ure of 19 -54 months from the sentence

which would oth erwise be adjudged by the cour t.

99

Mr. Torr es ar gu es th ere is no reason to think, a s th e gov ernm ent contends on appeal, th at w hen h e

"read in his final plea agreement that 'a Section 5K1.1 motion will be filed, recommending a downward

departur e to a sentence of 1 21 months', he understood that to mean 'that the departure u nder the

Section 5K1 .1 motion w ould be 19 -54 months.' " Thus, he concludes that the plain lan guag e of the tw o

docum ents establishes the gov ernm ent's breach of the plea agreem ent.

1 00


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We a gr ee w ith Mr. Torr es' assertion it is not r easonable to th ink t hat in reading his plea ag reem ent, h e

would hav e thoug ht th e gov ernm ent was ag reein g to noth ing m ore than a nineteen to fi fty -four-month

departur e. Howev er, it is quite clear wha t th e gov ernm ent ha d agreed to was conditional on the

probation depar tm ent's findings with r espect to his crim inal h istory . The plea agr eement specifically

inform ed Mr. Torres the conclusions regarding h is criminal history were t entativ e, it w ould be more

fully a nd accurately determ ined later, and criminal h istory can g reatly affect the guideline range.

Finally , th e plea ag reement's recomm endation of downw ard depart ure to 1 21 months from the

guideline ran ge of 1 40-17 5 m onths wa s expressly premised on t he "tentativ e" crimina l history categoryof V.

1 01

Thu s, there is no question but t ha t it w ould not hav e been reasonable for Mr. Torres to th ink any th ing

other t han the gov ernm ent's 12 1 -month r ecomm endation w as conditional on his criminal h istory. The

v al idit y of Mr. Torres' ar gu m ent falt ers th en, on t he fact it was indeed h is cr im inal history that led the

gov ernment to back aw ay from its 12 1 -month r ecomm endation. The presentence inv estigation report

prepared by the probation department stated, in part:

1 02

The plea agreement indicates that th e defendant's criminal h istory category is category V, w hich

results in a sentencing rang e of 1 40 t o 17 5 m onths. The Probation Departm ent has determ ined that t he

defendant[']s crim inal h istory cat egory is VI, and pursuan t to U.S.S.G. Sec. 4B1 .1 is a car eer offender,

which incr eases th e tota l offen se lev el to 34 an d his guidel ine rang e of im prisonm ent to 2 62-327

months. It is also noted that in th e plea a greement ... "The parties contemplate t hat a Sec. 5K1.1 motion

will be filed, recom m endin g a down war d depa rture to a sen tence of 1 21 m onths." .. . [Th e pr obat ion

depart m ent] note[s] th at a down wa rd departu re of in excess of 50 percent would be required to reachthe guideline rang e of 12 1 months.

1 03

The court ac cepted the factu al m att ers conta ined in the presentenc e report t hat form ed th e basis for th e

probation depar tm ent's calcu lation of Mr. Torr es' crim inal h istory categ ory . While the failu re to object

to a breach of a plea agreement ordinarily does not w aiv e the issue, Shorteeth, 887 F.2d at 2 55, it is of

some significan ce to note Mr. Torres' tr ial counsel did not object because in her judgm ent,

1 04

under the proposed agreement or sentencing guideline computation that we entered into at the time he

pled guilty to the offenses, th ere wa s some kind of an idea th at h e would be able to be sentenced in t he

1 21 -month r ange. Obviously , giv en the Probation Departm ent's inv estigation and the fact that he is in

the car eer crimina l category , th at is impossible.

1 05


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The gover nm ent's recomm endation of a 12 1 -m onth senten ce clearly wa s conditional on Mr. Torr es'

crimina l history . His crim inal history was later rev ealed to be substantially different from wh at it w as

believ ed to be at the t im e the plea agr eem ent was ent ered in to. As su ch , w e conclude the gov ernment

did not breach its plea agreem ent in recomm ending a down wa rd depar tur e of nineteen to fifty -four

months.15

B

1 06

Mr. Grav es ar gues the distr ict court er red in calcul atin g his base offense lev el. More specifically , he

claim s the district court erred in conv ertin g th e 87 1 gra m s of powder cocaine seized as part of the

contr olled deliv ery to the Mar ion Street h ouse into the am oun t of cra ck cocaine th at could hav e been

produced from th e powder. We r ev iew th e distr ict court 's application of the sentencing guidelines de

nov o. United States v . Wagner, 994 F.2d 1467, 1 47 0 (10th Cir.199 3). We review the sentencing court's

factu al findings under a cl early err oneous standard, "afford[ing] due deference to the district court 's

application of the Gu idelines to the fact s." United States v . Easterlin g, 921 F.2d 1073, 1077 (10th

Cir.1 990), cert. denied, 500 U.S. 937 , 1 1 1 S.Ct. 2066 , 1 1 4 L.Ed.2d 47 0 (199 1 ).

Mr. Grav es asserts:

1 07

Because the sentencing gu idelines specifically prov ide a met hod to calcu late t he applicable base offense

lev el wher e two different k inds of dru gs are inv olv ed, it is error as a ma tter of law to engage in

extr apolation of the am ount of powder cocaine tha t can be conv erted into crack cocaine....

1 08

We a re not persua ded.

1 09

In United Stat es v . Ang ulo-Lopez, 7 F.3d 1506(1 0th Cir.1 99 3), cert. denied, --- U.S. ----, 1 1 4 S.Ct. 1 563 ,

1 28 L.Ed.2d 209 (19 94), we held:

1 1 0

Accordin g to U.S.S.G. Sec. 2D1 .4 (1 991 ), "[i]f a defen dan t is conv icted of a conspiracy or a n at tempt to

com m it an offense inv olv ing a controlled substance, t he offense level shall be the sam e as if the object of

the conspiracy or attem pt had been completed." The district court ma de the factual determina tion th at

the cocaine powder inv olv ed in th e conspiracy was routinely conv erted to crack. The ev entual

conv ersion w as foreseeable to, if n ot dir ected by , Mr. Ang ulo-Lopez. Under t he g uidelines, it is proper to

sentence a defendant un der the drug quan tity table for cocaine base if the record indicates that the

defendant intended to tra nsform powdered cocaine into cocaine base. See United States v . Paz, 927 F.2d
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17 6, 1 80 (4th Cir.1 991 ); United States v. Haynes, 881 F.2d 586, 592 (8th Cir.1989 ). The record

support s the district court's findings th at Mr. A ngu lo-Lopez intended the powdered cocaine t o be

conv erted into crack.

1 1 1

Id., 7 F.3d at 151 1 .

1 1 2

Each an d ev ery factu al observ ation referenced in the above quote applies equally to the case of Mr.

Grav es. First, Mr. Grav es wa s cha rg ed wit h conspiracy to distribute cra ck cocaine. See infra footnote 4.

The district court specifically found no "plain cocaine" wa s ever distr ibuted as part of this conspiracy ,

and th e conv ersion of powder to cra ck cocaine as well as the total am oun t of drug s distributed by th e

conspiracy wa s reasonably foreseeable to Mr. Grav es. These fact ual findings are support ed by the

ev idence. Accordingly , th e legal conclusion of Angu lo-Lopez is directly on point. We th erefore r eject Mr.

Grav es' argum ent t he sentencing guidelines prohibit th e district court from conv erting powder cocaine

to crack cocaine.

C

1 1 3

Mr. Robertson also argu es th e distr ict court erred in conv ertin g th e powder t o cra ck cocaine in fixing h is

base offense lev el. Mr. Rober tson's cla im differ s from that of Mr. Grav es because unl ike the other

defendants, Mr. Robertson w as char ged not only wit h conspirac y to distribute cr ack cocaine, but also

with possession with intent to distr ibu te powder coca ine. See infra footnote 3 . Beca use he w as actu allycha rged wit h cr imes pert ainin g to mu ltiple drug t y pes, Mr. Robertson concludes he m ust be sentenced

pursuant t o the drug equiv alency tables provided by the sentencing guidelines.

1 1 4

Section 2 D1.1 (n. 6 ) prov ides that "[w]here th ere are m ultiple transactions or m ultiple drug ty pes, th e

quan tities of drugs ar e to be added. Tables for m aking th e necessary conv ersions are prov ided." The

conv ersion or drug equiv alency tables instru ct th at w hen different t y pes of drugs are inv olv ed, each

drug is to be conv erted to its marihu ana equiv alent, and the aggr egate amount of ma rihu ana ar riv ed

at is to be used as th e total am ount of dru gs inv olv ed for purposes of fixin g th e defendant's base offense

lev el. All of the specific exam ples of such conv ersions prov ided in th e guidelines deal wit h cr imes

inv olv ing distinct dru gs. See U.S.S.G. Sec. 2 D1.1 ex. A (conv erting PCP and LSD); ex. B (conv erting

ma rihua na and diazepam); ex. C (conv erting cocaine and mar ihuan a).

1 1 5

In contra st to the situa tions presented in th e guideline, th e case against Mr. Robertson inv olv es

interdependent, though different drugs: crack cocaine and the prim ary and necessary ingredient of


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cra ck, cocaine powder. Wh ile cases inv olv ing th ese two dru gs are not per se distinguisha ble from th e

guideline exam ples, th e fact th at Mr. Robertson w as conv icted of conspiring to distr ibute cra ck cocaine

perm its his sentenc e to be fixed with out reference to th e dru g equiv alency tables.16

1 1 6

A defendant conv icted of a drug conspir acy is sentenced ba sed on t he tota l a m oun t of dru gs inv olv ed as

if the object of the conspiracy had been com pleted, Angu lo-Lopez, 7 F.3d at 1 51 1 , provided that th e dru gquan tities were r easonably foreseeable to the defendant and w ithin th e scope of his conspiratorial

agreement. United States v. Irv in, 2 F.3d 72, 7 5 (4t h Cir.1 99 3), cert . denied, --- U.S. ----, 1 1 4 S.Ct.

1 086, 1 27 L.Ed.2d 401 (1 99 4). As noted abov e, the district court specifically found that the conspiracy

for w hich Mr. Robertson wa s conv icted inv olv ed only t he distr ibution of crack cocaine, and th at n o

powder cocaine was ev er distr ibuted by t he conspirat ors. Thu s, it clearly wa s reasonable to conclu de

tha t th e powder cocaine would be made into cra ck cocaine in furt hera nce of the conspiracy and thu s,

perm issible under t he gu idelines to sentence Mr. Robertson a s if the object of the conspiracy , i.e.,

"cooking" the powdered cocaine to make cr ack cocaine an d distr ibutin g cr ack cocaine, h ad been

achieved.

1 1 7

Mr. Robert son's additional conv iction for possession wit h in tent to distribu te powder cocain e does not

render the principle of Ang ulo-Lopez, in applicable. Indeed, th e defendant in Ang ulo-Lopez, like Mr.

Robertson, wa s conv icted of conspiracy to distr ibute c rac k cocaine a s well a s distr ibution of powder

cocaine. Id., 7 F.3d at 1 508, 1 51 1 . Nev ertheless, we held tha t under th e guidelines, it wa s permissible to

conv ert th e powder c ocaine t o crack cocaine. Mr. Robertson h as not been senten ced both for conspiring

to distribute crack cocaine based on the amount of powder cocaine seized and for possession of that

powder cocaine. Rath er, h e has been sentenced only for conspiring t o distribute cr ack cocaine.Accordin gly , w e conclu de that the dist rict court did n ot er r in conv erting th e powder coca ine to crack

cocaine in fixing Mr. Robert son's base offense level.

D

1 1 8

Messrs. Robertson an d Grav es additionally ar gu e the distr ict court er red in conv ertin g th e powder to

cra ck cocaine is because crack cocaine car ries wha t ar e char acter ized as "draconian" sentences as

com pared to powder cocaine. Messrs. Robertson a nd Gra v es argu e th e enha nced senten ces for cra ck

cocaine v iolate equal protection of the law s and constitute cru el and un usual punishment. They both

acknowledge th is argu m ent is foreclosed by our case law. See, e.g., Ang ulo-Lopez, 7 F.3d at 1 508-09

(rejecting equal protection a nd Eighth Am endment challenges); United States v . Easter, 98 1 F.2d

1 549 , 1 556, 1 558-59 (10th Cir.1 99 2) (upholding the v alidity of the sentencing guidelines' treatm ent of

crack cocaine against constitutional a ttack), cert . denied, --- U.S. ----, 1 1 3 S.Ct. 24 48, 1 24 L.Ed.2d 6 65

(1993).

E


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1 1 9

Mr. Robertson a rgu es th e district court er red in fixing his sentenc e.

1 .

1 20

First, Mr. Robertson assert s the distr ict court erred by failing t o notify him of its intention to reject th e

recomm endation of th e prosecution an d probation departm ent a s to the applicable offense level. In

support , he cites United States v . Kalady , 941 F.2d 1090(10t h Cir.1 99 1 ). In Kalady , we noted under

Rule 3 2, a senten cing court m ust, " '[p]rior to the sentencing h earin g ... pr ov ide th e counsel for th e

defendant a nd the at torney for th e Gov ernm ent w ith n otice of the probation officer's determ inat ion,

pursua nt to the pr ovisions of subdiv ision (c)(2 )(B), of the sentencin g cla ssification and sentencing

guideline ra nge believ ed to be applicable to th e case,' " id. at 1 096 (quoting F.R.Crim .P. 32 (em phasis

om itted)), and concluded the Rule's requir ement s "m ust be read to apply equally to departu re an d non-

departure sentences." Id. at 1097.

1 21

In Bur ns v . United Stat es, 501 U. S. 129, 11 1 S.Ct. 218 2, 1 1 5 L.Ed.2d 123 (19 91 ), the Supreme Court

empha sized "Rule 32 contem plates full adv ersary testing of the issues relev ant to a Guidelines senten ce

and m andat es th at t he part ies be giv en 'an opportun ity to com m ent upon the probation officer's

determ ination and on other m atters relating to the appropriate sentence.' " Id. at 1 35, 1 1 1 S.Ct. at 21 86

(quoting F.R.Crim.P. 3 2(a)(1 )).

1 22

The opport unit y recognized in Bur ns and Kala dy wa s denied, Mr. Robertson ar gu es, because the

gov ernm ent ar gu ed in fav or of a tw o-lev el decrease for acc eptance of responsibility wh ereas the

probation depar tm ent th ough t no decrease was warr ant ed; th e gov ernm ent opined Mr. Robertson

should receiv e a tw o-lev el enha ncem ent for his role in the offense, the probation depart men t proposed a

four-level enhan cement; and th e prosecution u rged the 87 1 gram s of powder cocaine be treated as, at a

minim um , 500 gra ms of crack cocaine,17whereas the probation department urged the powder cocaine

be t reated as such.

1 23

Because the distr ict court , "in combining all of these th ings, ar riv ed at a different base offense level th an

did the g ov ernm ent or th e probation departm ent," Mr. Robertson ar gu es he w as left "wit hout a

mea ning ful opport unit y to focus on th e legal an d fact ual issues at sentencin g." We disagr ee.

1 24

First, it is im port ant to recognize Mr. Robertson h ad been giv en n otice of the probation officer's
http://openjurist.org/501/us/129http://openjurist.org/941/f2d/1090


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recomm endation as required under Kalady and was giv en an opportu nity to comm ent on that

recommendation as required under Burns.

1 25

Second, t here is no question Mr. Robertson w as not denied a mean ingful opport un ity to focus on the

legal an d factu al issues at sentenc ing. He was notified in adva nce of the sentenc ing h earin g of each an d

every factor the district court r elied on in sentencing h im. He was awa re of: the prob

45 F3d 1423 United States V

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