USA v. Demetrius Rankin

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UNPUBLISHED OPINION FILED. [10-60077 Dismissed ] Judge: RHB , Judge: JLD , Judge: CH Mandate pull date is 01/04/2011 for Appellant Demetrius S. Rankin; mooting (IN LIGHT OF THE OPINION) motion to dismiss appeal filed by Appellee USA [6525848-2] [10-60077]

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USA v. Demetrius Rankin : 10-60077 Case Document: 00511320899 Page: 1 Date Filed: 12/14/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 14, 2010 N o . 10-60077 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. D E M E T R I U S S. RANKIN, D e fe n d a n t - Appellant A p p e a ls from the United States District Court for the Southern District of Mississippi U.S.D.C. No. 1:06-CR-41-1 B e fo r e BARKSDALE, DENNIS, and HAYNES, Circuit Judges. P E R CURIAM:* D e m e t r iu s Rankin pleaded guilty to possession of a controlled substance a n d 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 a g r e e m e n t, Rankin was notified of an administrative forfeiture proceeding p e r t a in in g to the same property listed in the criminal forfeiture count (the "P ro p e rty "). Rankin made no claims on the Property in response to the a d m in is t r a t iv e forfeiture notice. From October 31, 2006, until March 19, 2007, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 10-60077 Document: 00511320899 Page: 2 Date Filed: 12/14/2010 No. 10-60077 it e m s of the Property were administratively forfeited such that by the sentencing h e a r in g of April 17, 2007, all of the Property had been administratively forfeited. The plea agreement contained a statement to the effect that the property t o be forfeited under the criminal forfeiture count "will be negotiated between t h e parties prior to the date of sentencing. If the parties are unable to agree, the d is p u t e will be presented to the Court through an evidentiary hearing c o n c e r n in g the property at issue." As noted, all such Property had been a d m in is t r a t iv e ly forfeited by the date of sentencing, leaving nothing remaining fo r the criminal forfeiture. Despite these events, Rankin made no complaint at t h e sentencing hearing about the administrative forfeiture or the lack of a h e a r in g on any disagreement. R a n k in now contends that the failure to have a hearing over forfeiture of t h e Property constitutes a breach of the plea agreement. Because Rankin failed t o 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 o b v io u s , which (3) affected the appellant's substantial rights. United States v. G o n z a le s , 620 F.3d 475, 476 (5th Cir. 2010).1 A determination that the error a ffe c t e d the defendant's substantial rights requires a showing of prejudice; it is n o t sufficient that the defendant would not have entered the plea had he known a b o u t the future violation. Puckett v. United States, 129 S. Ct. 1423, 1433 & n.4 (2 0 0 9 ). Here, even if we assume arguendo that it was error not to hold the h e a r in g and that such error was plain (a dubious proposition at best), Rankin h a s pointed to nothing to suggest that he had a basis to avoid forfeiture of any o f the Property. Accordingly, he fails the plain error test. 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). 1 2 Case: 10-60077 Document: 00511320899 Page: 3 Date Filed: 12/14/2010 No. 10-60077 T h e plea agreement also contained a statement that the Government w o u ld 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 w h e t h e r such a motion or motions would be appropriate. At the sentencing h e a r in g , the Government's attorney made statements to the effect that Rankin h a d cooperated and "is already entitled to some credit." R a n k in contends that the Government's subsequent failure to make a 5 K 1 .1 or Rule 35 motion was a breach of the plea agreement. We conclude that th e Government retained discretion on this matter, and the prosecutor's remarks a t sentencing do not alter that analysis. See United States v. Hartwell, 448 F.3d 7 0 7 , 719 (4th Cir. 2006) (holding that the Government's reservation of sole d is c r e t io n includes the right to withdraw a prior determination of substantial a s s is t a n c e ).2 G iv e n our disposition of the alleged plea agreement breaches, we conclude t h a t the appeal waiver in the plea agreement should be enforced and, therefore, g r a n t dismissal of the remaining claims on appeal. Accordingly, this appeal is DISMISSED. 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. 2 3

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