                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2004

USA v. Shelton
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1186




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"USA v. Shelton" (2004). 2004 Decisions. Paper 902.
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                                                                   NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 03-1186
                                      ___________

                             UNITED STATES OF AMERICA

                                                 Appellee

                                                v.

                                 RAYMOND SHELTON,

                                                 Appellant


                                     ___________


           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                                (D.C. Civil No. 02-189-1)
                        District Judge: Honorable Harvey Bartle

                                      ___________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 12, 2004

                  BEFORE: SLOVITER, NYGAARD, Circuit Judges.
                          and SHADUR,* District Judge.




*       Honorable Milton I. Shadur, Senior District Judge for the United States District
Court for the Northern District of Illinois, sitting by designation.

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                                  (Filed: March 30, 2004 )

                                        ___________

                                OPINION OF THE COURT
                                     ___________


SHADUR, District Judge.

              Raymond Shelton (“Shelton”) appeals his sentence of 188 months'

imprisonment followed by three years' supervised release (Supp. App. 24), asserting that

the United States breached the terms of its plea agreement with him when the prosecutor

took a position that called for a base offense level higher than that stipulated in the plea

agreement (“Agreement”). We agree with Shelton and remand for resentencing.

              Because the parties are familiar with the facts, we review them only briefly.

Shelton was charged with a variety of crimes, including possession of a firearm by a felon

under 18 U.S.C. §922(g)(1).1 Shelton pleaded guilty to several of those offenses pursuant

to the Agreement, in which the parties expressly stipulated to a Sentencing Guidelines

offense level of 20 for his firearm possession violations (Agreement ¶¶1, 8b). Thereafter

the probation department's Presentence Investigation Report (“PSI”) correctly

recalculated the base offense level for those violations as 26 rather than 20 (PSI ¶37). At

sentencing the prosecutor stated his belief that the PSI rather than the stipulation in the

Agreement had the offense level right and then “ask[ed] for a substantial sentence”



       1
           Further references to Title 18 provisions will take the form “Section --.”

                                              2
(Supp. App. [Jan. 3, 2003 Tr.] 6-7).

              We engage in a plenary review of Shelton's claim that the Assistant United

States Attorney's comments at sentencing were a breach of the Agreement--regardless of

whether or not Shelton raised that issue before the district court (United States v. Rivera,

357 F.3d 290, 294 (3d Cir. 2004)). And for that purpose general principles of contract

law inform what constitutes such a breach (United States v. Nolan-Cooper, 155 F.3d 221,

236 (3d Cir. 1998)).

              That being so, the government committed a breach if its actions were

inconsistent with the text of the Agreement or did not comport with what Shelton could

reasonably have understood to be the operative effects of the Agreement (United States v.

Baird, 218 F.3d 221, 229 (3d Cir. 2000). Moreover, recognizing that Shelton was

negotiating a contract that relinquished many of his constitutional rights, we give careful

scrutiny to all the implications of the prosecutor's actions and demand strict adherence to

the terms of the Agreement (United States v. Hayes, 946 F.2d 230, 233 (3d Cir. 1991);

United States v. Queensborough, 227 F.3d 149, 156 (3d Cir. 2000)).

              In this instance the prosecutor's position at sentencing conflicted directly

with the government's unambiguous and specific Agreement stipulation that Shelton's

base offense level was 20. That position was correspondingly outside any reasonable

expectations that Shelton could have had about how the United States would conduct

itself pursuant to the Agreement. In short, it was a clear breach (Rivera, 357 F.3d at 295).



                                              3
              Shelton does not wish to withdraw his guilty plea (S. Br. 21). Hence the

appropriate remedy is specific performance of the Agreement (Nolan-Cooper, 155 F.3d at

241). We therefore vacate Shelton's sentence and remand for resentencing by another

district judge (Rivera, 357 F.3d at 297), at which time the government must inform the

court that it is bound by the Agreement but the court may independently determine the

appropriate sentence (Nolan-Cooper, 155 F.3d at 238).

              Because remand is warranted based on the government's breach of the

Agreement alone, there is no need to delve too deeply into Shelton's other contentions of

error (see Rivera, 357 F.3d at 293 n.2). But our de novo review of the Guidelines (United

States v. Butch, 256 F.3d 171, 177 (3d Cir. 2001)) reveals that the district judge's decision

to adopt the PSI's calculation of Shelton's base offense level of 26 for his Section

922(g)(1) violation was correct.

              Section 922(g)(1) makes it unlawful for any person “who has been

convicted in any court of a crime punishable by imprisonment for a term exceeding one

year” to possess a firearm or ammunition. For that purpose Section 921(a)(20)(B)

(emphasis added) excludes “any State offense classified by the laws of the State as a

misdemeanor and punishable by a term of imprisonment of two years or less” from the

definition of “crime punishable by imprisonment for a term exceeding one year.” But the

Guideline applicable to a Section 922(g)(1) violation employs a different definition: It

increases the base offense level of a defendant who committed the firearm offense at



                                              4
issue “subsequent to sustaining at least two felony convictions” of a specified nature

(Guideline §2K2.1(a)(1)), with a “felony conviction” being defined by Application Note 5

to Guideline §2K2.1 (emphasis added) as any “prior adult federal or state conviction for

an offense punishable by death or imprisonment for a term exceeding one year, regardless

of whether such offense is specifically designated as a felony....”

              Shelton argues that those provisions are in conflict and that the statutory

definition must control over the Guideline definition. From that premise he contends that

his prior conviction for simple assault (excluded from consideration under Section

921(a)(2)(B), but included for Guideline purposes under Application Note 5 to Guideline

§2K2.1) cannot be considered when determining his Section 922(g)(1) base offense level

calculation (United States v. LaBonte, 520 U.S. 751, 757 (1997)).

              That argument is flawed because the two definitions have very different

purposes: W hile the statute addresses only when an individual will be initially liable

under Section 922(g)(1), once such initial liability is established the Guidelines consider

the impact that a variety of factors (including prior felony convictions) will have on the

defendant's eventual punishment. Those different purposes persuade us that the texts are

not in conflict but can rather coexist peacefully, each having a full operative effect in its

own realm (United States v. Morris, 139 F.3d 582, 583-84 (8 th Cir. 1998)(per curiam); but

cf. United States v. Palmer, 183 F.3d 1014, 1017-18 (9 th Cir. 1999)).

              In sum, we vacate Shelton's sentence and remand to the district court for



                                               5
resentencing by a different judge in accordance with this opinion.




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