                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-28-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2108




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"USA v. Elliott" (2002). 2002 Decisions. Paper 541.
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                                                                                 NOT PRECEDENTIAL

                         IN THE UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT
                                       ____________

                                              No. 01-2108
                                             ____________

                                  UNITED STATES OF AMERICA
                                                    v.

                                          TOM ELLIOTT, III

                                                  Tom Elliott,
                                                         Appellant
                                             ____________
                              Appeal from the United States District Court
                                 For the Middle District of Pennsylvania
                                        D.C. No.: 00-cr-00119-2
                                 District Judge: Honorable Yvette Kane
                                             ____________


                       Submitted Under Third Circuit LAR 34.1(a) May 7, 2002
                     Before: NYGAARD, ALITO, and ROSENN, Circuit Judges.
                                        (Filed: August 28, 2002)
                                             ____________


                                      OPINION OF THE COURT
                                             ____________


ROSENN, Circuit Judge.

        The appellant, Thomas Elliott, III, pled guilty in November 2000 in the United States

District Court for the Middle District of Pennsylvania to possession with intent to

distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). The court
sentenced the appellant to 140 months of imprisonment. His attorney filed a motion to

withdraw as counsel and a supporting brief pursuant to Anders v. California, 386 U.S. 738

(1967). As part of his plea bargain, Elliott agreed to testify and did testify as a Government

witness against another defendant, John Watson, charged with possession with intent to

manufacture and distribute crack cocaine.

         Pursuant to the plea agreement, the Government filed a motion under Sentencing

Guidelines § 5K1.1 seeking a departure from the Sentencing Guideline range of 151-158

months. The Government recommended a range of 70-87 months. The District Court

granted the Government’s motion but instead, departed downward from the minimum in the

range by 11 months only. Disappointed in the extent of the downward departure, Elliott

timely appealed.

        Because we could not on the record then before us determine whether the District

Court complied with the analysis set forth by this Court in United States v. Torres, 251 F.3d

138 (3d Cir. 2001), we denied the motion of counsel for the appellant to withdraw from

this proceeding and directed him to obtain the sentencing transcript and file a supplemental

brief on this issue. We retained jurisdiction. Counsel complied and the Government also

filed a supplemental brief. It is undisputed by both counsel that the District Court complied

with Torres.

        Our review of the sentencing transcript reveals that the District Court considered all

of the five factors set forth in § 5K1.1 of the Sentencing Guidelines. Although the District

Court did not consider each of the five specific 5K1.1 factors individually and articulate its



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specific findings on each factor, as we encouraged sentencing courts to do in Torres, we

are satisfied that the District Court adequately complied with Torres. Of particular

importance, the Court considered the significance and usefulness factor and found the

defendant’s testimony to be not particularly helpful. As to the other factors, the Court

recited general observations and conclusions which demonstrated that it applied all of the

other relevant factors. Significantly, the Court also noted the defendant’s “25 years of

criminal activity in this community, and a lot of [his] crimes” of violence. The defendant’s

history of criminal activity, the District Court ruled, militated against the degree of the

downward departure recommended by the Government.

        Nonetheless, we pause to make a few brief observations. The Government

acknowledged again at sentencing that Elliott cooperated with the investigators, unlike his

alleged co-conspirators, and noted that Elliott provided credible information. No doubt, the

Government was aware of Elliott’s career offender status when it made its original

recommendation and when it reaffirmed it at sentencing. Notwithstanding, the Government

urged the District Court to reduce Elliott’s sentence by half. The Court thought otherwise.

Under these circumstances, we are constrained to affirm.

        The judgment and sentence of the District Court is affirmed. In light of the

supplemental brief and the sentencing transcript, we vacate our original denial of counsel’s

motion to withdraw as counsel and now grant the motion.




                                                       3
TO THE CLERK:


Please file the foregoing opinion.




                                         /s/Max Rosenn
                                         Circuit Judge




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