Professional Documents
Culture Documents
No. 06-4985
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, Chief District
Judge. (1:01-cr-00002-jpj-AL)
Argued:
November 1, 2007
Decided:
Before GREGORY and DUNCAN, Circuit Judges, and James A. BEATY, Jr.,
Chief United States District Judge for the Middle District of North
Carolina, sitting by designation.
Ernie
Embree
appeals
the
district
courts
On appeal, Embree
I.
In October 2000, a confidential informant informed Agent Brian
Snedeker of the Drug Enforcement Agency (DEA) that Embree was
involved in the distribution and manufacture of methamphetamine and
marijuana. The informant also told Agent Snedeker that Embree
residence
were
numerous
holsters
for
large
caliber
ACCEPTANCE OF RESPONSIBILITY
SUBSTANTIAL ASSISTANCE
by
the
probation
officer.
Based
on
the
available
information about the knife, gun holster and alleged firearms, the
probation officer recommended a 2-level enhancement for possession
of dangerous weapons in connection with the offense pursuant to
U.S.S.G. 2D1.1(b)(1).
United
States
objected
to
Embree
receiving
credit
for
to
distribute
methamphetamine
in
support
of
the
contending that Embree should not receive the benefit of the 3level deduction for acceptance of responsibility, the Government
argued that during the course of providing a factual basis for his
plea, Embree stated under oath that he personally didnt sell any
methamphetamine,
myself,
and
that
he
failed
to
accept
testify
as
to
Embrees
involvement
in
the
conspiracy.
acceptance of responsibility.
regarding
his
involvement
in
the
conspiracy,
which
Embree
distributed
methamphetamine.
The
Government
also
Embree
testified
that
he
used
the
knife
for
cutting
any
determinations
responsibility
or
the
regarding
possession
of
Embrees
firearms
acceptance
or
knife
of
in
only received [a] half ounce to two ounces each trip from Donna
Richardson and that he purchased small amounts of methamphetamine
from other individuals.
Finally,
Agent
Snedeker
testified
that
Embree
admitted
selling
Specifically, the
trips
to
California
to
buy
methamphetamine
was
agreed
to
financing
the
trips
to
California,
thats
the evidence that Embree was involved not only in the manufacture
of methamphetamine, but that he also sold methamphetamine to a
much greater extent than hes admitted.
finding that Embree did in fact possess both firearms and a knife
in connection with the conspiracy to distribute methamphetamine.
Concluding that Embree had a total offense level of 31, criminal
history category of 1, and sentencing guideline range of 120 months
to 135 months of imprisonment, Embree was then sentenced to 125
months in prison.
II.
On appeal, Embree argues that the Government breached the plea
agreement by arguing at sentencing for a 2-level enhancement for
possession of a dangerous weapon in connection with the offense
after stipulating in the plea agreement that it possessed no
information which would prevent [Embree] from meeting the criteria
set forth in 18 U.S.C.A. 3553(f)(1)-(4) and U.S.S.G. 5C1.2(1)(4). The Government contends that Embree failed to raise the
argument that a breach of the plea agreement had occurred at the
time of his sentencing and thus, we should affirm the sentence
imposed
by
the
Additionally,
district
the
court
Government
unless
argues
we
that
find
the
plain
plea
error.2
agreement
contends
that
Embree
breached
the
Finally, the
plea
agreement,
and
(3)
providing
false
information
at
the
i.
In
calculating
Embrees
sentencing
guideline
range,
the
weapons
enhancement
at
sentencing.
The
Government
are
plea
agreements
unique
and
between
call
10
for
the
Government
special
due
and a
process
1997).
In
the
present
case,
the
Government
stipulated
that it
Title 18 of
concern
provision.
the
application
of
the
so-called
safety
valve
11
credible
threats
of
violence
or
possess
firearm
or
other
5C1.2(2)(2002).
statute
pertaining
to
the
Cir.
1978)
(holding
that
plea
agreement
is
not
the
criteria
in
U.S.S.G.
5C1.2(1)-(4),
the
Government
was
12
weapon
in
connection
methamphetamine.
with
the
conspiracy
to
distribute
parties,
we
conclude
that
the
stipulation
at
issue
is
ambiguous.
This result is consistent with United States v. Harvey, where
this Court held that constitutional and supervisory concerns
require
holding
responsibility
the
than
the
Government
defendant
13
to
.
greater
for
degree
imprecisions
of
or
Id. at 301.
ii.
Turning now to the merits of Embrees argument that the
Government breached the stipulation in the plea agreement by
arguing for the 2-level enhancement under section 2D1.1, this case
is analogous to United States v. Badaracco, 954 F.2d 928 (3d Cir.
1992).
with the defendant in which it stipulated that the offense did not
involve more than minimal planning.
accordance
with
the
presentence
Id. at 933.
report,
the
However, in
district
court
14
Id. at 939.
the Government changed its position and argued that there was an
affirmative step taken by Mr. Badaracco indicating that he was
concealing something . . .
Id.
Id. at 940.
Id. at 941.
The court further held that because the Government was aware of the
defendants concealment of his interests when he entered into the
plea agreement, the Government [was] not free to breach its
agreement with a defendant because it decides after the fact that
it has made a bad bargain.
the
defendants
jurisdiction,
and
potential
testimony
that
for
she
prosecution
was
hoping
in
another
that
[the
15
in
plea
agreement
and
changed
its
position
at
Like
16
enhancement
for
possession
of
dangerous
weapon
in
with a basis for not only denying Embree the benefit of application
of the safety valve provision, but also for the application of the
2-level sentencing enhancement.
iii.
Notwithstanding
the
Courts
holding
that
the
Government
that
agreement.
he
fulfilled
all
of
his
obligations
under
the
17
2000).
establish that he has satisfied his own obligations under the plea
agreement in order to prevail.
Id.
contends that Embree breached the plea agreement by: (1) making a
false statement under oath; (2) failing to accept responsibility;
and (3) providing false information at the debriefing.
Although the facts of this case are not in dispute, the
question of whether Embree breached the plea agreement by making a
false statement during his testimony at his plea hearing is an
issue of fact, and therefore, we review the district courts
findings on this issue for clear error.
The district
The
18
In
Specifically, the
Again,
district
factual
courts
the
Government
findings,
and
does
we
not
dispute
conclude
that
the
the
district court did not clearly err in finding that Embree did not
fail
to
accept
responsibility
for
conspiracy
to
distribute
States
v.
Martin,
25
F.3d
211,
217
(4th
Cir.
1994)
19
all
information
and
evidence
the
defendant
has
U.S.S.G.
In
hes
admitted,
but
that
he
also
personally
sold
argues,
however,
that
in
the
plea
agreement,
he
same
course
application
of
of
the
conduct
safety
in
valve
support
of
provision.
his
In
request
raising
for
this
20
Id. at 413.
At sentencing the
agreement
because
Peglera
testified
that
he
personally
distributed only powder cocaine, and not the cocaine base for which
he pled guilty.
Governments
Id. at 412-13.
argument
had
force
under
some
controlled
substance
for
which
he
should
be
held
In
21
By failing to provide
According
breach of the plea agreement based upon his failure to fully and
truthfully disclose his involvement in the conspiracy precludes him
from the relief he has requested in his appeal.
Accordingly, we
conclude that the district court did not err in imposing a 2-level
enhancement for possession of a dangerous weapon in connection with
the offense.
22
III.
For
all
the
reasons
stated
above,
the
district
courts
AFFIRMED
23