United States v. Rankin
Opinion of the Court
Demetrius Rankin pleaded guilty to possession of a controlled substance and criminal forfeiture pursuant to a plea agreement dated September 19, 2006. The plea agreement included an appeal waiver. Prior to the date of the plea agreement, Rankin was notified of an administrative forfeiture proceeding pertaining to the same property listed in the criminal forfeiture count (the “Property”). Rankin made no claims on the Property in response to the administrative forfeiture notice. From October 31, 2006, until March 19, 2007, items of the Property were administratively forfeited such that by the sentencing hearing of April 17, 2007, all of the Property had been administratively forfeited.
The plea agreement contained a statement to the effect that the property to be forfeited under the criminal forfeiture
Rankin now contends that the failure to have a hearing over forfeiture of the Property constitutes a breach of the plea agreement. Because Rankin failed to raise this issue at sentencing, we review this matter under plain error review. Under plain error review, the court must find (1) an error, (2) that is clear or obvious, which (3) affected the appellant’s substantial rights. United States v. Gonzales, 620 F.3d 475, 476 (5th Cir. 2010).
The plea agreement also contained a statement that the Government would consider a motion for a downward departure under Sentencing Guideline § 5K1.1 or a sentence reduction under Federal Rule of Criminal Procedure 35(b). The plea agreement expressly reserved the Government’s discretion over whether such a motion or motions would be appropriate. At the sentencing hearing, the Government’s attorney made statements to the effect that Rankin had cooperated and “is already entitled to some credit.”
Rankin contends that the Government’s subsequent failure to make a § 5K1.1 or Rule 35 motion was a breach of the plea agreement. We conclude that the Government retained discretion on this matter, and the prosecutor’s remarks at sentencing do not alter that analysis. See United States v. Hartwell, 448 F.3d 707, 719 (4th Cir. 2006) (holding that the Government’s reservation of sole discretion includes the right to withdraw a prior determination of substantial assistance).
Accordingly, this appeal is DISMISSED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. If these tests are met, the court, in its discretion, will only correct an error which "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Gonzales, 620 F.3d at 476 (alteration in original).
. Rankin’s final argument regarding the plea agreement is that the Government breached the plea agreement by seeking a sentencing enhancement for firearm possession. The written plea agreement contained no promise to do otherwise, and it states that it "completely reflects all promises, agreements, and conditions made by and between the United States Attorney’s Office ... and Defendant.” For Rankin to contradict these assertions now, "there must be independent indicia of the likely merit of petitioner’s contentions, and mere contradiction of his statements at the guilty plea hearing will not carry his burden.” Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987); see also United States v. Cothran, 302 F.3d 279, 284 (5th Cir. 2002) ("[W]e give the statements during the colloquy greater weight than we give unsupported, after-the-fact, self-serving revisions.”). As his attorney had to concede at oral argument, Rankin offers no support for finding that the Government agreed not to seek a firearm enhancement. This point is meritless.
Reference
- Full Case Name
- United States v. Demetrius S. RANKIN
- Cited By
- 2 cases
- Status
- Published