United States v. Dionne Ackerley
Opinion
Dionne Ackerley entered into a written plea agreement with the government pursuant
*521
to which she pled guilty to one count of conspiracy to distribute 100 grams or more of heroin, in violation of
I.
Generally, "a defendant is allowed to waive appellate rights."
United States v. Lovelace
,
Because Ackerley did not object to either the calculated base offense level or the drug quantities attributed to her in the presentence investigation report, we review for plain error.
See
II.
Despite it being her burden, Ackerley has not identified which, if any, of her proffered statements were allegedly used to calculate the drug quantities contained in the presentence investigation report and to establish her base offense level. Nor can she rule out that the information used in the presentence investigation report may have come from independent sources, which was permissible under the plea agreement. Ackerley explains that she does not have enough information to determine if the government breached the plea agreement and that the existing record before this Court is insufficient to make such a determination.
Her explanation amounts to a fatal concession that she cannot show error, much less "plain" error, from the existing record.
4
Ackerley requests we remand the case to the district court for a hearing into whether the government breached the plea agreement. This request, however, overlooks the fact that this Court cannot grant relief unless Ackerley satisfies all four prongs of plain-error review,
see
Olano
,
Even assuming without deciding that Ackerley has established the first two prongs of plain-error review, "remand is not automatic."
United States v. Olson
,
*523
must show that h[er] sentence was affected by the breach."
Lovelace
,
Ackerley fails to establish prejudice under the third prong. She states that the government's breach of the plea agreement "not only affected her substantial rights it also seriously affected the fairness, integrity, or public reputation the of [sic] judicial proceedings." Appellant's Br. 17. Such a conclusory statement, however, is insufficient under plain-error review.
Accord
United States v. Jackson
,
III.
Because Ackerley has not met her burden under plain-error review, we enforce the appeal waiver and dismiss the appeal.
The Honorable Roseann A. Ketchmark, United States District Judge for the Western District of Missouri.
Ackerley's waiver of appellate rights does not affect our jurisdiction.
See
United States v. Lovelace
,
Ackerley does
not
argue that the appeal waiver is unenforceable because her appeal falls outside the scope of the waiver nor that it is unenforceable because she unknowingly and involuntarily entered into the plea agreement and waiver.
See, e.g.
,
Andis
,
We note there may not have been error arising from the government's alleged use of Ackerley's cooperation facts because Ackerley failed to appear for her originally-scheduled sentencing. See United States Sentencing Commission, Guidelines Manual , § 1B1.8(b)(4). Further, USSG § 1B1.8(b)(5) may have authorized the government to disclose Ackerley's cooperation facts in moving for a downward departure under USSG § 5K1.1. Because they were neither argued nor briefed by the parties in this appeal, we express no view on these issues.
The government's breach of a plea agreement "is undoubtedly a violation of the defendant's rights ...."
Puckett
,
Tellingly, the third exhibit attached to Ackerley's separate pro se brief may undermine any argument that the government's alleged breach affected the outcome of her sentence. That exhibit is an e-mail from Ackerley's appointed trial counsel to her appointed appellate counsel wherein her appointed trial counsel explains that Ackerley's statements to investigators "did not change the base offense level" because the "base offense level realistically had already been determined before her proffer." Ackerley does not address the effect of this correspondence on her burden to show prejudice.
Because Ackerley has failed to establish the third prong of plain-error review, we need not address the fourth prong.
See
Pirani
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Dionne T. ACKERLEY, Defendant-Appellant.
- Cited By
- 1 case
- Status
- Published