                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      April 11, 2017
                                                                 Elisabeth A. Shumaker
                                     PUBLISH                         Clerk of Court

                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 15-8118
 HAROLD CREIGHTON,

          Defendant - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF WYOMING
                     (D.C. No. 2:15-CR-00101-SWS-5)


Christopher A. Crofts, United States Attorney, and Stephanie I. Sprecher,
Assistant United States Attorney, Casper, Wyoming, for Plaintiff-Appellee.

Megan L. Hayes, Laramie, Wyoming, for Defendant-Appellant.


Before HARTZ, BALDOCK, and HOLMES, Circuit Judges. *


BALDOCK, Circuit Judge.


      Defendant Harold Creighton tells us his federal sentence of life imprisonment


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
for drug trafficking is the result of prosecutorial vindictiveness in violation of

the Fifth Amendment’s Due Process Clause. Supreme Court precedent tells us

otherwise.   We exercise jurisdiction under 18 U.S.C. § 3742(a)(1) and affirm

the sentence of the district court.

                                         I.

      Defendant was indicted on one count of conspiracy to possess with intent to

distribute, and to distribute, 500 grams or more of methamphetamine in violation

of 21 U.S.C. §§ 841(a)(1) & 846. Because Defendant had multiple prior felony drug

convictions, he qualified for a sentence enhancement that would raise his statutory

sentence on conviction from “ten years or more” to “a mandatory term of life

imprisonment without release.” 21 U.S.C. § 841(b)(1)(A). About four weeks before

Defendant’s trial, on September 29, 2015, the prosecutor emailed defense counsel.

In the email, the prosecutor summarized testimony the Government expected to elicit

from cooperating witnesses. The email concluded:

      •      I believe Mr. Creighton has information that could prove helpful
             to law enforcement. However, time is of the essence. I have
             included a proffer letter for your client’s consideration. I need
             to know if he wishes to proffer [i.e., cooperate] by October 2nd,
             2015.

      •      Mr. Creighton is eligible for a sentence enhancement under 21
             U.S.C. § 851. I am seeking permission from management to file
             notice of said enhancement.



ROA Vol. II–Pleadings, at 105–09. In a second email dated October 2, 2015, the

                                         2
prosecutor informed defense counsel that she had received permission to file the

§ 851 notice of a sentence enhancement and intended to do so on October 5.1 The

prosecutor also indicated she would tender a plea offer that would not account for

Defendant’s requested cooperation, but reminded counsel: “I believe your client has

information that could assist the Government—if he agrees to proffer and his

information does substantially assist the Government, we could negotiate a sentence

commensurate with his assistance.” Id. at 110.

      Defendant refused to cooperate with the Government or plead guilty. Instead,

he exercised his right to a jury trial. A jury found Defendant guilty and, at the

Government’s behest and over Defendant’s objection, the district court sentenced

him to life imprisonment: “But the reality is, Mr. Creighton, you have committed

offenses that qualify you for the enhancement that Congress has set forth. The notice

was provided timely. The underlying offenses qualify, and pursuant to the United

States law, a life sentence is required.” ROA Vol. III–Transcripts, at 29. On appeal,



      1
         Section 851, which refers to the notice as an “information,” provides in
relevant part:

      No person who stands convicted of an offense under this part shall be
      sentenced to increased punishment by reason of one or more prior
      convictions, unless before trial, or before entry of a plea of guilty, the
      United States attorney files an information with the court (and serves
      a copy of such information on the person or counsel for the person)
      stating in writing the previous convictions to be relied upon. . . .

21 U.S. C. § 851(a)(1).

                                          3
Defendant asks us to quash the Government’s “Information Filed Pursuant to 21

U.S.C. § 851.” This “Information,” filed as promised on October 5, notified both

Defendant and the district court that if convicted of the pending charge, Defendant

should receive a sentence of life imprisonment.        According to Defendant, the

“Information” resulted from prosecutorial vindictiveness.

                                          II.

      Despite defense counsel’s best efforts to convince us otherwise, the doctrine

of stare decisis, in particular Supreme Court precedent, plainly governs our

resolution of Defendant’s appeal. In view of such precedent, namely Bordenkircher

v. Hayes, 434 U.S. 357 (1978), and United States v. Goodwin, 457 U.S. 368

(1982), we have long recognized that to prevail on a claim of prosecutorial

vindictiveness, a defendant initially “must establish either (1) actual vindictiveness,

or (2) a realistic likelihood of vindictiveness which will give rise to a presumption

of vindictiveness.” 2 United States v. Raymer, 941 F.2d 1031, 1040 (10th Cir.

1991). Here Defendant can establish neither. The Supreme Court’s decision in

Bordenkircher squarely precludes a finding of actual vindictiveness in this case,

while this same decision in concert with Goodwin precludes us on the undisputed


      2
        The parties dispute whether Defendant preserved his constitutional claim in
the district court. Defendant insists we review his claim de novo while the
Government says plain error review is appropriate. But the parties’ dispute over the
applicable standard is academic. Our decision that Defendant’s claim of
prosecutorial vindictiveness fails as a matter of law for lack of proof sounds the
death knell of his claim even under the more favorable standard of de novo review.

                                          4
facts presented from recognizing any presumption of vindictiveness that the

Government must overcome.

                                         A.

      In Bordenkircher, the Supreme Court addressed whether the Fourteenth

Amendment’s Due Process Clause was violated “when a state prosecutor carries out

a threat made during plea negotiations to reindict the accused on more serious

charges if he does not plead guilty to the offense with which he was originally

charged.” 434 U.S. at 358 (emphasis added). There, the state prosecutor stated that

if the defendant did not plead guilty to uttering a forged instrument in the amount of

$ 88.30 and save “the court the inconvenience and necessity of a trial, he would

return to the grand jury to seek an indictment under the Kentucky Habitual Criminal

Act, . . . which would subject Hayes to a mandatory sentence of life imprisonment

by reason of his two prior felony convictions.” Id. at 358–59 (internal footnote and

quotation marks omitted).

      The Supreme Court held the prosecutor did not act vindictively because the

prosecutor did “no more than openly present[] the defendant with the unpleasant

alternatives of forgoing trial or facing charges on which he was plainly subject to

prosecution.” Id. at 365.

      While confronting a defendant with the risk of more severe punishment
      clearly may have a discouraging effect on the defendant’s assertion of
      his trial rights, the imposition of these difficult choices is an
      inevitable—and permissible— attribute of any legitimate system which
      tolerates and encourages the negotiation of pleas. . . .

                                          5
      It is not disputed here that [the defendant] was properly chargeable
      under the recidivist statute, since he had in fact been convicted of two
      previous felonies. In our system, so long as the prosecutor has probable
      cause to believe that the accused committed an offense defined by
      statute, the decision whether or not to prosecute, and what charge to file
      or bring . . . generally rests entirely in [the prosecutor’s] discretion.

Id. at 364.

      Bordenkircher is indistinguishable from the present case insofar as it bears on

Defendant’s claim of actual vindictiveness. Here, the record indicates the federal

prosecutor did nothing more than inform Defendant of his eligibility for an enhanced

sentence while suggesting—implicitly rather than overtly—that her pursuit of any

such enhancement would be negotiable if Defendant chose to cooperate with the

Government. See United States v. Sarracino, 340 F.3d 1148, 1178 & n.12 (10th Cir.

2003) (relying on Bordenkircher to reject a defendant’s argument that the

prosecution acted vindictively in changing a charge of manslaughter to murder based

on his refusal to cooperate). While the prosecutor apparently waited until plea

negotiations commenced to inform Defendant of his eligibility for an enhancement,

the timing of her decision does not assist Defendant. While the prosecutor did not

actually file the § 851 notice until after plea discussions had ended, she clearly

expressed her intention to do so in her initial email at the outset of those discussions.

“This is not a situation . . . where the prosecutor without notice brought an additional

and more serious charge after plea negotiations relating only to the original

indictment had ended with the defendant’s insistence on not pleading guilty.”


                                           6
Bordenkircher, 434 U.S. at 360–61.        This case would be no different if the

prosecutor filed a § 851 recidivist information at the outset of the prosecution and

offered to drop her pursuit of the sentence enhancement as part of a plea bargain.

See id.

                                         B.

      Unable to establish actual vindictiveness on the part of the prosecutor,

Defendant says the circumstances of his case should give rise to a presumption of

vindictiveness that the Government must rebut. Notably, neither the Supreme Court

nor the Tenth Circuit has ever applied such a presumption in a pretrial setting. In

Goodwin, the Supreme Court was asked to do so but declined. There, a federal park

officer charged the defendant “with several misdemeanor and petty offenses,

including assault.” Goodwin, 457 U.S. at 370. When the defendant demanded a jury

trial, the case was transferred from a magistrate judge to a district judge. The

prosecutor newly assigned to the case obtained a four-count indictment against the

defendant that included one felony count of forcibly assaulting a federal officer. The

question presented was “whether a presumption that has been used to evaluate a

judicial or prosecutorial response to a criminal defendant’s exercise of a right to be

retried after he had been convicted should also be applied to evaluate a prosecutor’s

pretrial response to a defendant’s demand for a jury trial.” Id. at 369–70.

      In refusing to apply a presumption, the Supreme Court offered “good reason”

for courts “to be cautious before adopting an inflexible presumption of prosecutorial

                                          7
vindictiveness in a pretrial setting.” Id. at 381. The Court explained that a case

involving “the State’s unilateral imposition of a penalty upon a defendant who had

chosen to exercise a legal right to attack his original conviction” presented “a

situation very different from the give-and-take negotiation common in plea

bargaining between the prosecution and defense, which arguably possess relatively

equal bargaining power.” 3 Id. at 377–78 (quoting Bordenkircher, 434 U.S. at 362).

“[A] change in the charging decision made after an initial trial is completed is much

more likely to be improperly motivated than is a pretrial decision.” Id. at 381. In

the pretrial setting “[i]t is unrealistic to assume that a prosecutor’s probable response

to [commonplace pretrial posturing] is to seek to penalize and deter.” Id. at 381. In

other words, “changes in the charging decision that occur in the context of plea

negotiation are an inaccurate measure of improper prosecutorial ‘vindictiveness.’”

Id. at 379–80.

      A prosecutor should remain free before trial to exercise the broad
      discretion entrusted to him to determine the extent of the societal
      interest in prosecution. An initial decision should not freeze future
      conduct. As we made clear in Bordenkircher, the initial charges filed


      3
          See North Carolina v. Pearce, 395 U.S. 711 (1969), and Blackledge v.
Perry, 417 U.S. 21 (1974). In Pearce and Blackledge, the defendants exercised their
rights to appeal, which resulted in retrials after prior trials and convictions. In each
case, the defendant’s punishment was greater the second time around. The Supreme
Court held the likelihood of vindictiveness on the part of either the trial court or
prosecutor under such circumstances justified a presumption that would free the
defendant of apprehension of such a retaliatory motive. The Government could
overcome the presumption “only by objective information in the record justifying the
increased [punishment].” Goodwin, 457 U.S. at 374.

                                           8
      by a prosecutor may not reflect the extent to which an individual is
      legitimately subject to prosecution.

Id. at 382. The Supreme Court concluded a presumption of vindictiveness in the

pretrial setting was unwarranted because actual vindictiveness was “so unlikely.” Id.

at 384 (emphasis in original).

      Defendant asserts that “threatening to file a § 851 information during plea

negotiations and then filing it 20 days before trial and immediately after [he]

exercised his right to trial,” if not proof of actual vindictiveness, surely raises the

appearance of vindictiveness, necessarily entitling him to a presumption of such.

Aplt’s Br. at 5.    To be sure, the Tenth Circuit has “rejected the idea that a

presumption of vindictiveness may never arise in the pretrial setting.” Raymer,

941 F.2d at 1040. Citing both Bordenkircher and Goodwin, however, we observed

in Sarracino that “[m]erely by the appearance of vindictive motives, vindictiveness

may not be presumed.” Sarracino, 340 F.3d at 1177–78. Only “in those pretrial

decisions which are genuinely distinguishable from Goodwin and Bordenkircher,

[will] we look at the totality of the objective circumstances to decide whether a

realistic possibility of vindictive prosecution exists.” Raymer, 941 F.2d at 1040.

(emphasis added).     Defendant’s argument turns entirely on the timing of the

prosecutor’s actions. Unfortunately for Defendant, the binding precedent instructs

us that timing alone is not enough to give rise to a presumption of prosecutorial

vindictiveness in the pretrial settting. “[T]he Supreme Court squarely has held that


                                          9
a prosecutor may threaten to charge a greater offense if a defendant will not plead

guilty to a lesser one, as long as the prosecutor has probable cause to believe that the

defendant committed the greater offense.” Sarracino, 340 F.3d at 1178 (citing

Bordenkircher). This is no different than saying a prosecutor in the course of plea

discussions may threaten to subject a defendant to a sentencing enhancement if the

defendant declines to cooperate with the Government, as long as the defendant

qualifies for the enhancement.

      No one in this case disputes that Defendant qualified for the sentencing

enhancement provided for in 21 U.S.C. § 841(b)(1)(A). Nor would anyone disagree

that the enhancement Defendant has suffered, however justifiable, is a harsh one.

But Defendant’s subjection to such enhancement is a matter of congressional

prerogative coupled with prosecutorial discretion. His reliance on what is or, what

was, the charging policy of the Department of Justice is simply beside the point. The

law is what matters here. And the law is that “in the ‘give-and-take’ of plea

bargaining, there is no such element of punishment or retaliation so long as the

accused is free to accept or reject the prosecution’s offer.” Bordenkircher, 434 U.S.

at 363. A “claim of vindictive prosecution cannot insulate the defendant from the

lawful consequences of his tactical choices.” Raymer, 941 F.2d at 1042.

      The circumstances of the present case simply do not support Defendant’s

argument that his case is distinguishable in a meaningful way from Bordenkircher

and Goodwin. Accordingly, the sentence of the district court is

                                          10
AFFIRMED.




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