               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0255n.06
                            Filed: April 4, 2005

                                          No. 04-3563

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


TIMOTHY ADKINS,                                 )
                                                )
       Petitioner-Appellant,                    )
                                                )    ON APPEAL FROM THE UNITED
v.                                              )    STATES DISTRICT COURT FOR
                                                )    THE NORTHERN DISTRICT OF OHIO
UNITED STATES OF AMERICA,                       )
                                                )
       Respondent-Appellee.                     )


       Before: GIBBONS and SUTTON, Circuit Judges; EDGAR, District Judge.*

       R. ALLAN EDGAR, District Judge. This case is presented as an appeal of the

district court’s decision on Timothy Adkins’ 28 U.S.C. § 2255 petition. In substance,

however, it is an appeal of Adkins’ sentence in his criminal case resulting from a conviction

on a drug conspiracy charge, 21 U.S.C. § 846. We treat this case as a direct appeal in that

criminal case, and AFFIRM the judgment of the district court.               However, we also

REMAND the case to the district court with instructions to vacate the existing judgment

which was entered on June 2, 2000, in Adkins’ criminal case, and enter a new judgment nunc

pro tunc.



       *
        The Honorable R. Allan Edgar, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.

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No. 04-3563 Adkins v. United States


                                             I.

       Adkins pled guilty to a conspiracy to distribute and possess with intent to distribute

more than fifty (50) grams of cocaine base (“crack”), in violation of 21 U.S.C. § 846. In the

judgment entered on June 2, 2000, Adkins was sentenced to 262 months imprisonment and

five years supervised release. On appeal, Adkins contended that the government had

breached the plea agreement by not filing a motion to reduce his sentence for “substantial

assistance” under U.S.S.G. § 5K1.1. A panel of this Court held that under the language of

the plea agreement the government was obligated to make such a motion unless it can show

by a preponderance of the evidence that Adkins breached the agreement. United States v.

Bryant, 46 Fed.Appx. 778, 785, 2002 WL 2026469, at *6 (6th Cir. Aug. 29, 2002). The

panel remanded the case to the district court for a determination as to whether Adkins had

breached the plea agreement by failing to provide substantial assistance to the government.

Id.

              On remand the district court appointed counsel to represent Adkins and held

an evidentiary hearing to determine whether Adkins breached the plea agreement by failing

to provide substantial assistance to the government. At issue was whether Adkins testified

truthfully at the trial of codefendant Thomas Wimbush. The district court found that Adkins

was not truthful and that the government had not breached the plea agreement by failing to

file a U.S.S.G. § 5K1.1 motion.


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No. 04-3563 Adkins v. United States


              Adkins’ appointed counsel failed to appeal the district court’s decision and

failed to notify Adkins that he was not pursuing an appeal. When Adkins learned that he did

not have a pending appeal, he filed a petition seeking relief under 28 U.S.C. § 2255 for

ineffective assistance of counsel, in violation of his rights under the Sixth Amendment. The

district court granted the petition and concluded its opinion with the following: “The Court

imposes the original sentence on Petitioner Adkins, but affords Petitioner an opportunity to

file a notice of appeal as to this Court’s determination that Petitioner breached the plea

agreement.”

              Adkins dutifully filed a notice of appeal with the criminal case number thereon,

and asserted that he was seeking direct appellate review from the district court’s ruling that

he breached the plea agreement. Perhaps because the judgment was never vacated and re-

entered, thereby making any appeal untimely, someone hand wrote the civil case number for

the 28 U.S.C. § 2255 case on the caption of the notice of appeal. The case therefore sailed

to this court under the banner of Adkins’ § 2255 case, although the only issue is whether the

district court in the criminal case properly concluded that Adkins violated his plea agreement.

                                              II.

              The district court, when it granted Adkins’ 28 U.S.C. § 2255 petition, should

have vacated his judgment of conviction and entered a new judgment from which Adkins

could then appeal. United States v. Peak, 992 F.2d 39, 42 (6th Cir. 1993). It is clear that this


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No. 04-3563 Adkins v. United States


is what the district court intended in this case. However, the district court did not perform

the ministerial act of vacating the judgment in Adkins’ criminal case. Therefore, upon the

limited remand of this case, the district court is DIRECTED to VACATE that judgment and

enter a new judgment, presumably with the same sentence, nunc pro tunc to March 3, 2004,

the date on which the district court entered its order granting Adkins’ 28 U.S.C. § 2255

petition. This court will consider Adkins’ appeal on the merits as if it had been an appeal

from that judgment.

                                             III.

              Adkins and the government each claim that the other breached the plea

agreement. The government claims that Adkins did not live up to his agreement which

required him to “fully cooperate” and thereby provide the required “substantial assistance”

to trigger the government’s obligation to move for a downward departure under § 5K1.1 of

the UNITED STATES SENTENCING GUIDELINES. Adkins claims that he did fulfill the

conditions precedent to a downward departure motion. On Adkins’ first direct appeal from

his criminal conviction and sentence, this Court found the plea agreement to be ambiguous

as to whether the government retains discretion to withhold a § 5K1.1 motion, and remanded

the case to the district court to make factual findings as to whether Adkins breached the plea

agreement by failing to provide substantial assistance. The district court held such a hearing




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No. 04-3563 Adkins v. United States


and found that Adkins did not testify truthfully at the trial of codefendant Thomas Wimbush.

Hence it was Adkins, not the government, who breached the plea agreement.

               The government had the burden of proving Adkins’ breach of the plea

agreement by a preponderance of the evidence. United States v. Benjamin, 138 F.3d 1069,

1073 (6th Cir. 1998). Since the issue is whether there was a breach of the plea agreement,

we review the district court’s decision de novo. United States v. Swanberg, 370 F.3d 622,

627 (6th Cir. 2004); United States v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002).

               The district court found that Adkins’ testimony differed from the proffer he had

given to the government in at least two material respects. First, in the proffer Adkins said

that he sold Wimbush fairly large quantities of crack cocaine; whereas at the trial Adkins

testified that if he ever sold Wimbush crack, it was a “real small amount.” Second, in his

proffer, Adkins told the government that he had sold crack to Wimbush after Wimbush got

out of jail. However, at Wimbush’s trial, Adkins testified that the last time he sold to

Wimbush was in early 1999, a time when Wimbush, according to the district court, arguably

was in jail.

               The district court was in a position to observe Adkins’ testimony and evaluate

how it fit in with the other evidence in the case. While our standard of review here is de

novo, when the issue is credibility of a witness who has testified before the district court on

two different occasions, we decline to conclude that the district court was in error, especially


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No. 04-3563 Adkins v. United States


in this case where there are objective reasons for upholding the district judge’s determination.

                                              IV.

              Adkins was sentenced to a term of 262 months imprisonment and five years

of supervised release under the sentencing guidelines. There is no indication at this juncture

that the district judge made any determination in connection with that sentencing which

would implicate Adkins’ Sixth Amendment rights under United States v. Booker, 543 U.S.

---, 125 S.Ct. 738 (2005). We REMAND this case to the district court to VACATE the

judgment entered in Adkins’ criminal case on June 2, 2000, and to enter a new judgment

nunc pro tunc to March 3, 2004. This judgment is AFFIRMED.




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