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United States of America v. Kevin Weatherspoon A/K/A Fiftya/K/A 50 Kevin Weatherspoon

October 10, 2012

UNITED STATES OF AMERICA
v.
KEVIN WEATHERSPOON A/K/A FIFTYA/K/A 50 KEVIN WEATHERSPOON,
APPELLANT



On Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. No. 3:05-cr-00176-013) District Judge: Honorable James M. Munley

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

PRECEDENTIAL

Argued July 13, 2012

Before: FUENTES, HARDIMAN and ROTH, Circuit Judges

OPINION OF THE COURT

For the second time, Kevin Weatherspoon seeks a reduction in his sentence for conspiring to distribute and possess with intent to distribute over 50 grams of cocaine base. In October 2006, he pled guilty and was sentenced to a 120-month term of imprisonment pursuant to a binding plea agreement with the government. A few years later, the U.S. Sentencing Commission issued a retroactive amendment which reduced Weatherspoon's Guidelines range. We rejected Weatherspoon's first motion for a sentence reduction because he was sentenced pursuant to a binding plea agreement. In this motion, he argues that he is nevertheless eligible for a reduction because under the Supreme Court's recent decision in Freeman v. United States, 131 S. Ct. 2685 (2011), the sentence contained in his plea agreement was ―based on‖ the Sentencing Guidelines. We disagree, and we will affirm the District Court's denial of his motion.

I.

In May 2005, Kevin Weatherspoon was indicted by a federal grand jury for crimes relating to the distribution and possession of cocaine, cocaine base and marijuana. In lieu of trial, Weatherspoon pled guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement (a ―(C) plea agreement‖).*fn1 In that agreement, the parties agreed that Weatherspoon should receive a sentence of 120 months' imprisonment because that sentence was ―a reasonable sentence under the facts and circumstances of the case.‖ (Appendix (―App.‖) at 13-14.)

Weatherspoon's plea agreement contains only a few references to the Sentencing Guidelines. The agreement does not expressly state what the parties believed Weatherspoon's Guidelines range would be or if they used the Guidelines to determine that a 120-month term of imprisonment was the appropriate sentence. Nor does it provide his offense level or criminal history category.

The agreement does, however, note that ―[t]he defendant . . . agrees that any legal and factual issues relating to the application of the Federal Sentencing Guidelines to the defendant's conduct, including facts that support any specific offense characteristic or other enhancement or adjustment and the appropriate sentence within the statutory maximum provided for by law, will be determined by the court at a sentencing hearing.‖ (App. at 12.) The (C) plea agreement also makes certain recommendations relevant to the calculation of his offense level. Specifically, the parties agreed that for the purposes of sentencing, the court should:

(1) attribute at least 500 grams but less than 1.5 kilograms of cocaine base to Weatherspoon; and (2) attribute at least 500 grams but less than 1.5 kilograms of cocaine hydrochloride to him. Weatherspoon was also to receive a three-level reduction to his offense level because of his acceptance of responsibility. There is no mention in the agreement of his use of a firearm or his role in the conspiracy. Nor did it indicate that the facts mentioned in the agreement were the only ones relevant to the calculation of his offense level. The agreement notes that his statutory maximum sentence was 20 years' imprisonment.*fn2

Weatherspoon pled guilty on October 23, 2006. At his change of plea hearing, the government summarized the plea agreement. The prosecutor mentioned that Weatherspoon faced a maximum sentence of 20 years' imprisonment but did not mention what his applicable Guidelines range was. The government also noted that the parties agreed that Weatherspoon should receive a 120-month sentence, but did not indicate any basis for that determination. The prosecutor did mention that ―the [g]overnment and defense have agreed to recommend a sentence in this . . . agreement that will likely be somewhat lower than the actual guideline[s] range, and that was in consideration of his appeal waiver, his timely guilty plea, et cetera.‖ (App. at 49-50.) After explaining Weatherspoon's rights to him, the District Court accepted Weatherspoon's guilty plea.

For sentencing, the Probation Department prepared a pre-sentence report. Using the 2006 edition of the Guidelines manual, the Probation Officer, accepting the factual recommendations in the plea agreement, calculated Weatherspoon's base offense level as 36. She then added two additional points for Weatherspoon's possession of a firearm in furtherance of a drug offense under U.S.S.G. § 2D1.1(b)(1), and three additional points for Weatherspoon's role as a supervisor in the organization, under U.S.S.G. § 3B1.1(b). Finally, she subtracted three points for Weatherspoon's acceptance of responsibility, under U.S.S.G. § 3E1.1(a), (b). Ultimately, the Probation Officer determined that Weatherspoon had a total offense level of 38. Because this was Weatherspoon's first offense, his criminal history category was I, corresponding to a Guidelines range of 235 to 293 months. Due to the statutory maximum of 20 years, however, the top of his Guidelines range was reduced to 240 months.

The District Court sentenced Weatherspoon on February 15, 2007. At sentencing, the District Court did not explicitly calculate or adopt a particular Guidelines range. Rather, after brief argument, it accepted the recommended sentence of 120 months. It explained that in accepting that sentence, it took ―into consideration the presentence investigation report, the statements by [Weatherspoon's]

lawyer and the seriousness of the charges.‖ (App. at 68.) The District Court also considered the applicable § 3553(a) factors, particularly the ―kinds of sentences that are available, and the advisory sentencing range and policies prescribed ...


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