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


5-21-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2108




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"USA v. Elliott" (2002). 2002 Decisions. Paper 288.
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                                                     NOT PRECEDENTIAL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: May 21, 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 agree 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.

       Elliott’s sentencing range was 151-188 months. The Government filed a

downward departure motion because of Elliott’s assistance during the Watson trial. The

District Court granted the Government’s motion and sentenced Elliott to 140 months

imprisonment. Disappointed in the extent of the downward departure, Elliott timely

appealed.

       In his Anders brief, Elliott’s counsel noted two possible issues: first, whether

Elliott’s career offender status under the Sentencing Guidelines § 4B1.1 was proper;

second, whether the degree of the District Court’s downward departure was erroneous.

Our review of the District Court’s legal interpretation and application of the sentencing

guidelines is plenary. United States v. Torres, 251 F.3d 138, 144-45 (3d Cir. 2001).

       Elliott contests his classification as a career offender. The District Court found

that based upon at least two prior qualifying convictions, Elliott qualified as a career

offender under the Sentencing Guidelines § 4B1.1. Therefore, his offense level was

enhanced to 32, and after subtracting three levels for acceptance of responsibility, his

total offense level was now 29. As a career offender pursuant to § 4B1.1, his criminal

history category was automatically VI. Thus, his sentencing range was 151-158 months.
                                              2
Two of Elliott’s prior felony convictions fell within the applicable time period set forth in

§ 4A1.2(e)(1) and otherwise satisfied § 4B1.1. Elliott had been sentenced in 1982 for a

period of three years’ confinement for a robbery conviction, in 1985 for an assault

conviction, in 1988 for an aggravated assault conviction, and several drug crimes

thereafter. Thus, at least two prior felony convictions fell within the applicable time

period for § 4A1.2(e)(1) and otherwise satisfied § 4B1.1. Thus, Elliott was appropriately

classified as a career offender. As such, his offense level of 29, criminal history category

VI, and the corresponding sentence range of 151-188 months were not in error.

Therefore, counsel for Elliott did not err in concluding this issue to be without merit.

       However, the more difficult issue arises out of Elliott’s cooperation and testimony

during the Watson trial. 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 rejected the sentencing range.

Instead, it departed downward from the minimum in the range by 11 months only.

       We do not have jurisdiction to review the extent of the District Court’s departure

for substantial assistance to the Government. Torres, 251 F.3d at 145. Although we lack

jurisdiction to review the degree of departure, Torres held that we do have jurisdiction

over sentencing errors based upon a mistake of law or an incorrect application of the

Guidelines. Id. No doubt, the Government was aware of Elliott’s career offender status

when it made its recommendation. Nonetheless, the Government urged the District Court
                                             3
to reduce Elliott’s sentence by half. The only explanation available from the present

record regarding the degree of downward departure and the reason therefor appears in a

brief sentence in the District Court’s judgment.

       A review of the transcript of the sentencing hearings would be helpful, but

regrettably defense counsel did not order the transcript, informing this court that the

transcript was unnecessary for this appeal. In Torres, we held that in considering a

departure for substantial assistance to the Government, the sentencing court not only

must conduct a qualitative, case-by-case analysis, but “also must examine section 5K1.1’s

enumerated factors.” Id. at 147.

       That is, when presented with a motion for downward departure a sentencing
       judge must, at the very minimum, indicate his or her consideration of
       section 5K1.1’s five factors in determining whether and to what extent to
       grant a sentencing reduction. Further, the sentencing judge must indicate
       his or her consideration of any factors outside those listed in 5K1.1. We
       strongly urge the sentencing judges to make specific findings regarding
       each factor and articulate thoroughly whether and how they used any
       proffered evidence to reach their decision.

Id.

       On the present record, without the benefit of the transcript of the sentencing, we

cannot determine whether the District Court satisfied this burden or otherwise committed

errors of law. Thus, we will deny the motion of counsel for the appellant to withdraw

from this proceeding and direct that he produce the sentencing transcript and file a

supplemental brief on this issue within twenty-one days of notice that this opinion has

been filed. After receipt of the appellant’s supplemental brief, the Government will have


                                             4
twenty-one days to respond. In the interim, this panel will retain jurisdiction of this

appeal.




                                             5
TO THE CLERK:

Please file the foregoing opinion.



                                         /s/Max Rosenn
                                         Circuit Judge




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