US v. Tommy Bennett, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00369-NCT-2 Copies to all parties and the district court/agency. [998785599].. [10-4422]

Appeal: 10-4422

Document: 86

Date Filed: 02/10/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4422

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TOMMY LEWIS BENNETT, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:08-cr-00369-NCT-2)

Submitted:

January 5, 2012

Decided:

February 10, 2012

Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Paul A. Weinman, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tommy

Lewis

Bennett,

Jr.,

appeals

his

102-month

sentence following his guilty plea to conspiracy to distribute
cocaine

base,

in

appeal,

Bennett

violation
argues

that

of

21

U.S.C.

(1)

the

§ 846

(2006).

district

court

On

lacked

jurisdiction to hear his case because it was later discovered
that an Assistant United States Attorney (“AUSA”) who signed the
indictment had had his bar license administratively suspended;
(2) the Government committed a violation pursuant to Brady v.
Maryland, 373 U.S. 83 (1963), in failing to inform him of the
AUSA’s

bar

status;

and

unreasonable sentence.

(3)

the

district

court

imposed

an

We affirm.

Bennett first argues that the AUSA’s signature on the
indictment

deprived

the

district

court

of

jurisdiction.

A

federal court is without jurisdiction in a criminal prosecution
where the Government lacks an authorized representative.

See

United States v. Providence Journal Co., 485 U.S. 693, 708, 108
S. Ct. 1502, 1511 (1988).
Procedure

7(c)

requires

that

attorney for the government.”

Further, Federal Rule of Criminal
an

indictment

“be

signed

by

an

Here, the United States Attorney,

an authorized representative of the Government, also signed the
indictment.
further

The unauthorized AUSA did not participate in any

proceedings.

Accordingly,

2

the

errant

signature

was

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superfluous and therefore did not deprive the district court of
jurisdiction to hear Bennett’s case.
Bennett also contends that the Government committed a
Brady violation in failing to disclose the AUSA’s bar status
prior to the entry of Bennett’s guilty plea.

“In Brady, the

Supreme Court announced that the Due Process Clause requires the
government to disclose ‘evidence favorable to an accused upon
request . . . where the evidence is material either to guilt or
to punishment.’”

United States v. Caro, 597 F.3d 608, 619 (4th

Cir. 2010) (quoting Brady, 373 U.S. at 87).

To prevail on a

Brady claim, a defendant must demonstrate that the evidence was
exculpatory

or

impeaching

in

nature,

was

material

to

the

defense, and was suppressed by the government either willfully
or inadvertently.

United States v. Moussaoui, 591 F.3d 263, 285

(4th Cir. 2010).
Here,

as

the

district

court

found,

the

evidence

suggested that the Government did provide defense counsel with
accurate information regarding the AUSA’s professional standing.
Any

failure

Bennett

by

defense

personally

is

counsel
not

to

relay

attributable

*

that
to

information

the

to

Government. *

Bennett does not raise an ineffective assistance of
counsel claim; moreover, ineffective assistance of counsel does
not appear conclusively from the record.
See United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

3

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Moreover, the information was not exculpatory evidence material
to either guilt or punishment.

Accordingly, the Government did

not commit a Brady violation.
Finally, Bennett challenges the reasonableness of his
102-month sentence on the grounds that the district court failed
to

provide

an

adequate

explanation

and

erred

in

refusing

to

grant a departure greater than fifteen percent pursuant to the
Government’s substantial assistance motion under U.S. Sentencing
Guidelines Manual (“USSG”) § 5K1.1 (2008).
imposed

by

a

district

discretion standard.

court

under

a

We review a sentence
deferential

abuse

of

Gall v. United States, 552 U.S. 38, 46

(2007); United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir.
2010) (abuse of discretion standard of review applicable when
defendant properly preserves a claim of sentencing error in the
district court “[b]y drawing arguments from [18 U.S.C.] § 3553
[(2006)]
imposed”).

for

a

sentence

different

than

the

one

ultimately

We begin by reviewing the sentence for significant

procedural error, including such errors as “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines

as

mandatory,

failing

to

consider

the

§ 3553(a)

factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence — including
an explanation for any deviation from the Guidelines.”
552 U.S. at 51.
4

Gall,

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“When rendering a sentence, the district court ‘must
make

an

individualized

presented.’”

assessment

based

on

the

facts

United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009) (quoting Gall, 552 U.S. at 50 (emphasis omitted)).
Accordingly,

a

sentencing

court

must

apply

the

relevant

§ 3553(a) factors to the particular facts presented and must
“state in open court” the particular reasons that support its
chosen sentence.
court’s

Id. (internal quotation marks omitted).

explanation

need

not

be

exhaustive;

it

must

The
be

“sufficient ‘to satisfy the appellate court that the district
court has considered the parties’ arguments and has a reasoned
basis for exercising its own legal decisionmaking authority.’”
United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010)
(quoting

Rita

v.

United

States,

551

U.S.

338,

356

(2007)

(alterations omitted)).
Here, the district court’s explanation was adequate.
Though

it

must

provide

an

explanation

for

its

decision,

in

departing below the statutory mandatory minimum pursuant to USSG
§ 5K1.1,

a

court

is

permitted

to

consider

only

“the

nature,

extent, and significance of the defendant’s assistance.”

United

States v. Pearce, 191 F.3d 488, 493 (4th Cir. 1999); see United
States v. Fennell, 592 F.3d 506, 509 (4th Cir. 2010) (noting
that, under § 5K1.1, sentencing judge has discretion to award
reduction “consistent with the non-exclusive list of factors,
5

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Document: 86

related

to

assistance.”).
its

Date Filed: 02/10/2012

the

nature

and

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quality

of

a

defendant’s

The court’s discussion with counsel reflected

consideration

of

Bennett’s

assistance

and

both

parties’

court’s

fifteen

arguments regarding the departure.
We

further

hold

that

the

percent departure was reasonable.

district

In support of his request for

a greater departure, Bennett presented only his own testimony
and that of a police officer.

The officer acknowledged that

Bennett was cooperative, but stated that the information Bennett
provided was not productive to his agency.

In the absence of

more extensive and reliable testimony, the district court did
not

err

percent

in

granting

departure.

the
See

Government’s
USSG

§ 5K1.1

request
cmt.

n.3

for

a

fifteen

(“Substantial

weight should be given to the government’s evaluation of the
extent

of

extent

the

and

ascertain.”).

defendant’s
value

of

Thus,

assistance,

the
we

particularly

assistance
find

Bennett’s

are

where

the

difficult

to

sentence

to

be

We therefore affirm the district court’s judgment.

We

reasonable.

dispense

with

oral

argument

because

the

facts

and

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

6