Filed: Dec. 03, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 13-13571 Date Filed: 12/03/2015 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13571 Non-Argument Calendar _ D.C. Docket No. 5:11-cr-00083-MTT-CHW-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DELDRICK DEMONE JACKSON, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (December 3, 2015) Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges. PER CURIAM: Case: 13-13571
Summary: Case: 13-13571 Date Filed: 12/03/2015 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13571 Non-Argument Calendar _ D.C. Docket No. 5:11-cr-00083-MTT-CHW-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DELDRICK DEMONE JACKSON, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (December 3, 2015) Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges. PER CURIAM: Case: 13-13571 ..
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Case: 13-13571 Date Filed: 12/03/2015 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13571
Non-Argument Calendar
________________________
D.C. Docket No. 5:11-cr-00083-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELDRICK DEMONE JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(December 3, 2015)
Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 13-13571 Date Filed: 12/03/2015 Page: 2 of 9
Deldrick Demone Jackson appeals his 130-month total sentence, which the
district court imposed after he pled guilty to conspiring to distribute cocaine and
launder money. He contends that the district court should not have allowed the
government to withdraw its U.S.S.G. § 5K1.1 substantial-assistance motion after
he admitted to engaging in unauthorized criminal activity while on bond awaiting
sentencing. After careful consideration, we affirm the district court.
I.
Mr. Jackson was indicted on one count of conspiracy to distribute cocaine
and one count of conspiracy to launder money. After his arraignment, he was
released on bond. He agreed to plead guilty to both counts pursuant to a plea
agreement that obliged him to provide statements to law enforcement officers
regarding his knowledge of criminal activity and to testify in proceedings when
called upon to do so. In exchange, the government agreed to consider whether his
cooperation warranted a government motion recommending a downward departure
in sentence. The agreement warned Mr. Jackson that if he engaged in any
additional criminal conduct, he would not be entitled to any such consideration.
The government agreed, however, that any self-incriminating information provided
by Mr. Jackson pursuant to the agreement, other than that concerning violent
conduct, would not be used in calculating Mr. Jackson’s guideline sentencing
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range or as a basis for bringing additional charges, so long as the government had
not previously known the information.
The district court accepted Mr. Jackson’s guilty plea at a change-of-plea
hearing. The government subsequently filed a § 5K1.1 motion stating that Mr.
Jackson had provided substantial assistance in its investigations. It then withdrew
that motion upon learning that Mr. Jackson had engaged in additional unauthorized
criminal conduct in violation of his plea agreement. At Mr. Jackson’s sentencing
hearing, Special Agent Helen Graziadei testified that she met with Mr. Jackson
while he was in custody after entering his plea to determine whether he could
provide further information to the government. Mr. Jackson told Agent Graziadei
that he had knowledge of a new drug trafficking group transporting marijuana from
Atlanta to Tifton, Georgia. During this conversation he admitted that while on
bond awaiting sentencing, he had assisted this group in moving 300 to 400 pounds
of marijuana by riding in a “follow car.” Mr. Jackson did not have counsel present
during this conversation and he was not read his Miranda1 rights.
The district court determined that Mr. Jackson had engaged in new criminal
activity and thus he was not entitled to a substantial assistance motion under the
terms of the plea agreement. Nevertheless, the court determined that Mr. Jackson
had provided substantial assistance and exercised its discretion to apply a
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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downward variance. The court sentenced Mr. Jackson to 130 months in prison,
which was below the applicable guideline range of 188 to 235 months. Following
entry of judgment, Mr. Jackson appealed.
II.
Mr. Jackson argues that the government breached the plea agreement in two
ways. First, he contends that the government breached the agreement by
withdrawing its § 5K1.1 motion, even though no provision of the agreement
allowed it to do so. Second, he argues that the government breached the plea
agreement’s provision barring the government from using self-incriminating
statements to increase his sentencing range when it relied on his self-incriminating
statements to withdraw its § 5K1.1 motion.2 We review de novo the question of
whether the government breached a plea agreement. United States v. Carlson, 87
F.3d 440, 447 (11th Cir. 1996).
When a plea rests in any significant degree on a promise by the government,
such that it can be said to be part of the inducement or consideration for the plea,
such a promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262
(1971). In interpreting a plea agreement, the court should avoid a “hyper-technical
2
Mr. Jackson asserts in his brief that his due process rights were violated because he
made the incriminating statements without Miranda warnings and in the absence of an attorney.
To the extent Mr. Jackson is claiming that the government’s failure to provide him with an
attorney or Miranda warnings raises a constitutional issue, he has failed to adequately brief that
issue or cite to any relevant authority. Accordingly, any such argument is abandoned. United
States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
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reading of the written agreement” or “a rigidly literal approach in the construction
of language.” In re Arnett, 804 F.2d 1200, 1203 (11th Cir.1986) (internal
quotation marks omitted). Moreover, it should view the agreement “against the
background of the negotiations” and should not interpret the agreement to “directly
contradic[t] [an] oral understanding.”
Id. To the extent that a plea agreement is
ambiguous, it “must be read against the Government.”
Id. (internal quotation
marks omitted). When the government fails to fulfill a promise that induced a
guilty plea, the district court has discretion to fashion an appropriate remedy, such
as allowing the defendant to withdraw his guilty plea or ordering specific
performance. Santobello, 404 U.S.at 262-63.
We conclude that the government has not breached its plea agreement with
Mr. Jackson. Section 5K1.1 of the guidelines allows a court to depart from the
sentencing range suggested by the guidelines “[u]pon motion of the government
stating that the defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense.” U.S.S.G. § 5K1.1.
Significantly, the plea agreement contains no guarantee that the government would
file a § 5K1.1 motion if Mr. Jackson rendered assistance. It provides that if Mr.
Jackson cooperated with the government, “the government agree[d] to consider
whether such cooperation qualifie[d] as ‘substantial assistance’ pursuant to 18
U.S.C. Section 3553(e) and/or Section 5K1.1 of the advisory Sentencing
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Guidelines warranting a government motion at the time of sentencing
recommending a downward departure.” Plea Agreement at 7 (Doc. 20) 3
(emphasis added). Where, as here, a plea agreement only requires the government
to “consider” filing a substantial-assistance motion, the government does not
breach the agreement by refusing to file the motion, see United States v. Forney,
9 F.3d 1492, 1499-1500 (11th Cir. 1993), unless its refusal was based on an
unconstitutional motive. Wade v. United States,
504 U.S. 181, 185-86 (1992).
And there is no assertion that the government acted with an unconstitutional
motive in this case.
The government complied with the plea agreement when it moved to
withdraw its § 5K1.1 motion. The plea agreement clearly specifies that if Mr.
Jackson engaged in “any additional criminal conduct,” he would “not be entitled to
consideration” under the substantial assistance provision. Plea Agreement at 7-8
(Doc. 20). Testimony at sentencing supported the district court’s finding that Mr.
Jackson engaged in unauthorized criminal activity after entering his plea. Indeed,
Mr. Jackson does not dispute that he engaged in criminal activity.
Mr. Jackson argues that the plea agreement did not permit the government to
file and then withdraw a § 5K1.1 motion and attempts to distinguish Forney by
arguing that the government in Forney refused to file a § 5K1.1 motion, whereas
3
“Doc.” refers to the docket entry in the district court record in this case.
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here, the government filed one and then subsequently withdrew it. Mr. Jackson’s
position thus hinges on demonstrating that the language of the plea agreement
draws (or at a minimum implies) a distinction between the government’s refusal to
file a motion recommending a reduction in sentence and its withdrawal of one.
Mr. Jackson points to no language in the agreement creating such a distinction,
fails to identify what practical purpose such a distinction would serve, and cites no
legal authority for his position. Needless to say, we find his argument
unpersuasive.
The conditional language of the plea agreement only obliges the government
to consider whether Mr. Jackson’s cooperation warranted a motion recommending
a downward departure in sentence. See Forney, 9 F.3d at 1499-00. It imposes no
limitation on how the government may choose to exercise that discretion and
draws no distinction between filing a motion for downward departure and later
withdrawing a motion so filed. Indeed, it is difficult to imagine what would form
the basis for such a distinction. In both situations the government would have
considered whether Mr. Jackson’s cooperation warranted a reduced sentence and
decided that—as a direct result of Mr. Jackson’s subsequent criminal activity—it
did not. The government would have fulfilled its obligations under the terms of the
plea agreement either way.
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We also hold that the government’s use of Mr. Jackson’s incriminating
statements as a basis for withdrawing its § 5K1.1 motion was consistent with the
terms of his plea agreement. Though the plea agreement restrains the government
from using “any self-incriminating information which was previously unknown to
the Government and is provided . . . as a result of the defendant’s plea agreement,”
it only prevents the government from using such information to “determin[e] the
advisory guideline range” or “bring additional charges against the defendant.”
Plea Agreement at 8 (Doc. 20). It in no way limits the government’s ability to use
that information to determine whether Mr. Jackson’s conduct merits a government
motion recommending a reduced sentence. The sentencing guidelines make clear
than when “the government agrees that self-incriminating information provided
pursuant to the agreement will not be used against the defendant . . . in determining
the applicable guideline range,” the government may still use the self-incriminating
information to “determin[e] whether, or to what extent, a downward departure
from the guidelines is warranted pursuant to a government motion under § 5K1.1.”
U.S.S.G. § 1B1.8. The government’s consideration of Mr. Jackson’s admission is
therefore entirely consistent with the terms of the plea agreement.
III.
In sum, the district court did not err in allowing the government to withdraw
its U.S.S.G. § 5K1.1 substantial-assistance motion. We affirm.
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AFFIRMED.
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