                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4491




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Recommended Citation
"USA v. Hunter" (2007). 2007 Decisions. Paper 216.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/216


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                                                    NOT PRECEDENTIAL




           IN THE UNITED STATES COURT
                    OF APPEALS
               FOR THE THIRD CIRCUIT


                       NO. 04-4491


             UNITED STATES OF AMERICA

                            v.

                  KENNETH HUNTER,
                      Appellant




            On Appeal From the United States
                        District Court
          For the Middle District of Pennsylvania
           (D.C. Crim. Action No. 03-cr-00263)
           District Judge: Hon. Sylvia H. Rambo


      Submitted Pursuant to Third Circuit LAR 34.1(a)
                     October 26, 2007

BEFORE: FISHER, STAPLETON and COWEN, Circuit Judges

           (Opinion Filed: November 15, 2007)




               OPINION OF THE COURT
STAPLETON, Circuit Judge:


       On January 22, 2004, appellant Kenneth Hunter pled guilty to distribution of, and

possession with intent to distribute, crack cocaine in violation of 21 U.S.C. § 841(a)(1).

He was sentenced to 37 months of incarceration followed by three years of supervised

release. During the same proceeding, Hunter was also sentenced to 18 months of

incarceration on revocation of the term of supervised release imposed for an earlier

offense, such sentence to run consecutive to the 37 month sentence.

       On this appeal, Hunter insists that his January 22, 2004, plea was not knowing,

intelligent, and voluntary because it was entered in reliance on promises made by the

United States Attorney’s Office which the government failed to keep at the sentencings.

Specifically, Hunter insists that his counsel was promised “that the Government would

give the Appellant credit for his cooperation in both sentences, i.e., make a motion for

downward departure for both the present matter and the supervised release violation and

that these sentences would run concurrent to one another, provided that the Appellant’s

cooperation was satisfactory.” Appellant’s Br. at 4-5.

       After an evidentiary hearing, however, the District Court made the following

findings of fact:

              [I]t is the finding of this court that only two promises were made in
       this case. One, that a Dauphin County case would be dropped, and two, that
       Defendant’s cooperation would be made known to the court and that a
       5K1.1 motion would be filed. The court further finds that these promises
       were kept.

                                             2
              The alleged promises that [the Special AUSA] would be handling all
       events with which Hunter was charged in this court, that his 5K1.1 motion
       would apply to the drug charge and revocation charge, and that sentences on
       both cases would be concurrent, were never made.

Appellee’s Br. at 29. These findings have ample support in the record. Our standard of

review is clearly erroneous, United States v. Izbonwa, 120 F.3d 437, 440 (3d Cir. 1997).

There is therefore no basis for concluding that Hunter’s January 22, 2004, plea is infirm

in any way.

       The government acknowledges that Hunter is entitled to be resentenced under the

teachings of United States v. Davis, 407 F.3d 162 (3d Cir. 2005), and we will vacate the

judgment of the District Court and remand for resentencing only. Hunter may tender to

the District Court at resentencing any of the five “supplementary issues” raised in his

October 23, 2006, Supplementary Response. Any issues so tendered should be addressed

by the District Court in the first instance.




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