                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-4-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2884




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Nesbitt" (2008). 2008 Decisions. Paper 1063.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1063


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-2884
                                       ___________

                            UNITED STATES OF AMERICA


                                              v.

                                 BRENNIS A. NESBITT,

                                                               Appellant.
                                       ___________

                 On Appeal from the District Court of the Virgin Islands
                           (D.C. Criminal No. 04-cr-00077)
                     District Judge: Honorable Raymond L. Finch
                                     ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a),
                                     May 6, 2008

           Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.

                               (Opinion Filed: June 4, 2008)


                               OPINION OF THE COURT


FUENTES, Circuit Judge:

       Following his guilty plea to one count of conspiracy to possess controlled

substances with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846, the District

Court sentenced Brennis Nesbitt to 17 and a half years of imprisonment followed by 5
years of supervised release. Nesbitt challenges his sentence, alleging (1) that the District

Court failed to rule on his objection to an aggravating role enhancement in the pre-

sentence report (“PSR”) and (2) that the government breached his plea agreement by

requesting a higher sentence based on his role as a leader of the conspiracy. We conclude

that Nesbitt’s arguments are without merit. Therefore, we will affirm the sentence.1

                                             I.

       Because we write for the parties, we recite only the facts essential to our decision.

Nesbitt was indicted on February 26, 2004 for conspiracy to violate narcotics laws,

importation of controlled substances, possession with intent to distribute, the distribution

of controlled substances and with using a communication facility in the commission of

narcotics offenses. Specifically, the indictment charged that Nesbitt, along with other

individuals, imported controlled substances into the U.S. from St. Maarten and Anguilla

using female couriers. The couriers transported the cocaine in large Coleman coolers

filled with fish and ice. The government filed a second superseding indictment which

added 3 additional counts against Nesbitt for possession with intent to distribute. The

second superseding indictment also contained sentencing allegations that named Nesbitt

as an organizer and leader of a criminal activity that involved five or more participants. A

third superseding indictment was filed adding two co-defendants. However, the charges




       1
       We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction
pursuant to 18 U.S.C. § 3231.

                                             -2-
against Nesbitt mirrored the second indictment and the sentencing allegations naming him

as an organizer were removed. Nesbitt pleaded guilty following the third superseding

indictment.

                                             II.

       We exercise plenary review when determining whether a district court resolved a

controverted issue pursuant to Fed. R. Crim. P. 32(i)(3)(B). United States v. Electrodyne

Sys. Corp., 147 F.3d 250, 251-52 (3d Cir. 1998). Federal Rule of Criminal Procedure

32(i)(3)(B) provides that the sentencing court “must-for any disputed portion of the

presentence report or other controverted matter-rule on the dispute or determine that a

ruling is unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” 2 We enforce the Rule strictly, and

“‘failure to comply with it is grounds for vacating the sentence.’” United States v. Corley

500 F.3d 210, 222 (3d Cir. 2007) (quoting Electrodyne Sys. Corp., 147 F.3d at 251-52).

       The PSR recommended a 4-point base offense level increase for Nesbitt’s role as

an organizer in the conspiracy based on the offense conduct. Nesbitt filed objections to

the PSR, specifically objecting to the role enhancement. At sentencing, Nesbitt also



       2
         Nesbitt states in his brief that Fed. R. Crim. P. 32(c)(1) requires a sentencing
court to rule on any unresolved objections in a pre-sentencing report. Appellant Br. at 8.
However, Fed. R. Crim. P. 32 was amended in 2000 and the current version of Fed. R.
Crim. P. 32(c)(1) only provides that the probation officer must conduct a pre-sentence
investigation and submit a report to the court before it imposes sentence unless an
exception as enumerated in the Rule applies. For purposes of addressing Nesbitt’s
argument, the relevant section of the current rule is Fed. R. Crim P. 32(i)(3)(B).

                                            -3-
requested a downward departure, in part, because he was not an organizer as asserted by

the government and because he pled guilty to the third superseding indictment only

because the reference to him as a leader was omitted. Nesbitt contends that the District

Court failed to expressly rule on his objection to the aggravating role enhancement in the

PSR. However, the transcript of the sentencing hearing unambiguously shows that the

District Court accepted the PSR as accurate and complete, ruled on Nesbitt’s objection on

the aggravating role enhancement and denied his request for a downward departure. The

District Court stated “although downward departure is a consideration in this case, . . . I

decline to grant a downward departure. . . . I cannot find that you were a minor

participant. You played a very significant role in the planning and execution of this

conspiracy.” (App. 173.) Based on this record, we conclude that the District Court did

not fail to comply with Fed. R. Crim. P. 32(i)(3)(B) and properly ruled on Nesbitt’s

objection to his role as a leader in the conspiracy.

                                             III.

       Finally, Nesbitt argues that the government violated his plea agreement by

“inducing [him] to believe [it] would not have a problem with a sentence within the range

indicated.” Appellant Br. at 14. Nesbitt further asserts that he only pleaded guilty after

the third superseding indictment deleted the sentencing allegation as to his role as a leader

and that the government’s subsequent attempt to seek an enhancement on this basis was a

violation of the plea agreement.



                                              -4-
       In determining whether the Government has breached its plea agreement with a

defendant, we apply the de novo standard of review. United States v. Rivera, 357 F.3d

290, 293-94 (3d Cir. 2004). We must determine “‘whether the government’s conduct is

inconsistent with what was reasonably understood by the defendant when entering the

plea of guilty.’” United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998)

(quoting United States v. Badaracco, 954 F.2d 928, 939 (3d Cir. 1992)).

       The terms of Nesbitt’s plea agreement were reduced to writing and executed by the

parties. In our review of the record, we observe that Nesbitt’s plea agreement did not

contain any express promise by the government to not seek an enhancement for his role or

to agree to a downward departure. To the contrary, the plea agreement specifically stated

that the Court was not bound to the Sentencing Guidelines but would take them into

account at sentencing. The plea agreement further provided that the District Court was

not limited to consideration of the facts and events provided by the parties and that there

were no other agreements between Nesbitt and the government. Thus, the government

seeking an enhancement for his organizer role, which the District Court found by

substantial evidence, was not inconsistent with the plea agreement or what Nesbitt should

have reasonably understood.

       At the plea hearing, the District Court thoroughly questioned Nesbitt about the plea

agreement. During this hearing, the government and defense counsel agreed that the

realistic sentencing range was 11 years. However, it is clear that, at the plea colloquy, the



                                             -5-
judge explained at length that he could not tell Nesbitt the exact sentence that would be

imposed at the sentencing hearing. He also explained that the maximum sentence was life

with a minimum mandatory term of 10 years and that his sentence would depend on the

court’s consideration of the relevant sentencing factors. In light of this, Nesbitt agreed to

plead guilty. At the sentencing hearing, the District Court fully considered the factors set

forth in § 3553(a) and the pre-sentence report and determined that based on those factors

a sentence of 17 and a half years, which was at the bottom of the guideline range, was

appropriate. Under these circumstances, we find that the government did not breach the

plea agreement and that the District Court’s sentence was reasonable.

                                             VI.

       For the foregoing reasons, the judgment of sentence will be affirmed.




                                             -6-
