                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1967




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 01-1967




                          UNITED STATES OF AMERICA

                                          v.

                                  KEITH WOOTEN,
                                            Appellant




                    On Appeal from the United States District Court
                            for the District of New Jersey
                          D.C. Criminal No. 00-cr-00617-1
                          (Honorable Garrett E. Brown, Jr.)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 19, 2004

        Before: SCIRICA, Chief Judge, GARTH and BRIGHT*, Circuit Judges

                                 (Filed: May 28, 2004)




                             OPINION OF THE COURT




   *The Honorable Myron H. Bright, United States Circuit Judge for the Eighth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.

       After pleading guilty to a charge of conspiring to distribute and possess with intent

to distribute more than 50 grams of crack cocaine, defendant Keith Wooten was

sentenced to 262 months’ imprisonment. Wooten now appeals his conviction and

sentence, claiming the District Court erred: (1) in accepting a guilty plea that was not

voluntary and knowing; (2) in denying a motion to vacate his stipulation as to drug

quantity; (3) in imposing his sentence; and (4) in denying his request for evidentiary

hearings regarding drug weight and composition, drug quantity and warrantless search.

We will affirm.

                                             I.

       A grand jury returned a two-count indictment against Wooten. Count One charged

Wooten with conspiring to distribute and possess with intent to distribute more than 50

grams of crack cocaine, in violation of 21 U.S.C. §§ 841 and 846. Count Two charged

Wooten with distribution and possession with intent to distribute more than 50 grams of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

       On November 22, 2000, Wooten entered a guilty plea on Count One pursuant to a

plea agreement with the government, providing that if Wooten pled guilty to Count One,

the government would move at sentencing to dismiss Count Two. The parties also

stipulated that: (1) the offense involved more than 50 grams, but less than one hundred

fifty grams, of cocaine base; (2) Wooten’s acceptance of responsibility warranted a 2-



                                              2
level reduction; and (3) Wooten’s entrance of a timely guilty plea warranted another 1-

level reduction.

       The plea agreement recited that “the violation of 21 U.S.C. § 846 charged in the

indictment carries a statutory minimum penalty of ten years imprisonment and a

maximum penalty of life imprisonment.” But the agreement specifically cautioned that

“the sentence to be imposed . . . is within the sole discretion of the sentencing judge,

subject to . . . the United States Sentencing Guidelines.” Further, the agreement recited

that the government “cannot and does not make any representation or promise as to what

guideline range will be found applicable,” and that the government reserved the right “to

take a position with respect to the appropriate sentence to be imposed.”

       Wooten accepted and signed the plea agreement. He also completed and signed a

Rule 11 form on the day of his plea, acknowledging that it contained three stipulations

and that life imprisonment was the applicable statutory maximum penalty.

       At the plea hearing, the government stated that the base offense level

corresponding to the stipulated amount of drugs involved in the Count One offense

was 32. But the government specifically reiterated that there was no agreement as to the

total offense level or applicable criminal history category. The court cautioned Wooten

that he faced a mandatory minimum of ten years in prison and a maximum sentence of

life imprisonment. The court also cautioned Wooten that he could not withdraw his plea




                                              3
“on the grounds that anyone’s prediction as to the guidelines range or expectation of

sentence proves inaccurate.”

       During the plea hearing, Wooten confirmed his stipulation as to drug quantity. His

attorney stated that there was “no evidence to challenge the weight.” After questioning

Wooten about his understanding and acceptance of the plea, the court determined the plea

had a sufficient factual basis and was entered knowingly and voluntarily.

       The Probation Office subsequently prepared a presentence investigation report

which calculated the initial base offense level at 32, based on the stipulated quantity of

drugs involved. Because Wooten qualified as a career offender under U.S.S.G. § 4B1.1,

the offense level was adjusted to 37. Wooten then received a 3-level decrease, according

to the plea agreement stipulations regarding acceptance of responsibility and cooperation.

The Probation Office’s final recommended offense level was 34.

       At the sentencing hearing, Wooten moved to vacate his stipulation as to drug

quantity, and he also requested a hearing on the weight and strength of the cocaine base.

The court found no basis for vacating the stipulation in the plea agreement, noting the lab

report demonstrated a weight over fifty grams, and that under the guidelines, “purity is

not an issue.” The court also found that Wooten’s prior criminal convictions qualified

him for career offender status. The court determined the applicable offense level was 34,

with a criminal history of VI, carrying an applicable sentencing range of 262 to 327




                                              4
months. The court sentenced Wooten to 262 months imprisonment and five years

supervised release.

                                            II.

       The District Court had jurisdiction under 18 U.S.C § 3231. We have jurisdiction

under 28 U.S.C. § 1291.

                                            III.

A.     The Plea Was Knowing and Voluntary.

       Wooten contends the District Court erred in accepting his guilty plea. Although he

agreed to the government’s offer, he claims he was not informed about the applicable

statutory maximum and minimum sentence, nor that drug quantity and type was an

element of the offense that the government must prove beyond a reasonable doubt.

Because Wooten did not raise the voluntariness of his plea before the District Court, we

review for plain error, and we “may consult the whole record when considering the effect

of any error on substantial rights.” United States v. Vonn, 535 U.S. 55, 59 (2002).

       To be constitutionally valid, a guilty plea must represent “a voluntary and

intelligent choice among the alternative courses of action open to the defendant.” Hill v.

Lockhart, 474 U.S. 52, 56 (1985). Rule 11 of the Federal Rules of Criminal Procedure

requires a sentencing judge to personally address the defendant in open court and ensure

the plea is voluntary and that a factual basis exists. See United States v. Jasper, 481 F.2d

976, 978 (3d Cir. 1973).



                                             5
       The District Court properly accepted Wooten’s guilty plea. Wooten was informed

in the plea agreement, and again during the plea colloquy, that his offense carried a

mandatory minimum of ten years in prison, and a maximum of life imprisonment under

the sentencing guidelines. The government expressly stated in both the plea agreement

and during the plea colloquy that there was no stipulation as to what sentencing guideline

range would ultimately apply. During the plea colloquy, Wooten confirmed that he

understood his actual sentence could not be determined until after completion of the

presentence report, and that he could not later withdraw his plea “on the grounds that

anyone’s prediction as to the guideline range or expectation of sentence proves

inaccurate.”

       Further, at the plea hearing Wooten reaffirmed his stipulation on the issue of drug

quantity. Defense counsel admitted that there was “no evidence to challenge the

weight.” Wooten acknowledged that he understood if he did not plead guilty, he would

be entitled to a trial at which “the Government would have to prove [his] guilt beyond a

reasonable doubt.” Given the court’s thorough inquiry into the factual basis for the plea

agreement, as well as Wooten’s understanding of and desire to enter into the agreement,

we see no error.

B.     The District Court Did Not Err in Refusing to Vacate the Drug Quantity
       Stipulation.

       At sentencing, Wooten moved to vacate his stipulation that the offense involved

more than fifty grams. He challenged the DEA’s weight analysis as flawed and argued

                                             6
that he should be given more time to have the drug weighed by his own expert. We

review the District Court’s finding of a factual basis for abuse of discretion. United

States v. Cefaratti, 221 F.3d 502, 509 (3d Cir. 2000).

         We see no error. The court found the plea was supported by an adequate factual

basis, based on the DEA lab report. Wooten received and examined this report before

accepting the plea offer, and at the plea hearing, his attorney stated there was “no

evidence” to challenge the DEA’s listed weight. The court found that Wooten knowingly

and voluntarily entered the plea agreement which specifically included the stipulation as

to drug quantity. In rejecting the motion to vacate the stipulation, the District Court

merely held Wooten to his side of the bargain, having benefitted from the government’s

agreement to dismiss the Count Two charge and to recommend a 3-level reduction in the

total offense level. Where a defendant seeks to evade a validly accepted stipulation, we

have “no difficulty in holding [the defendant] to the plea agreement for he seeks the

benefits of it without its burdens.” United States v. Parker, 874 F.2d 174, 178 (3d Cir.

1989).

C.       The District Court Did Not Breach the Plea Agreement.

         Wooten contends that the District Court erred in imposing a sentence of 262

months imprisonment based on a base offense level of 37. At sentencing, the District




                                              7
Court found Wooten qualified as a career offender under § 4B1.1.1 This resulted in a

base offense level of 37 for the applicable drug quantity. Wooten claims the District

Court violated his plea agreement when it calculated his sentence using a base offense

level of 37 instead of a base offense level of 32.2 Because Wooten did not raise this

objection at sentencing, we review for plain error. United States v. Thornton, 306 F.3d

1355, 1357 (3d Cir 2002).

       The plea agreement did not include a stipulation as to applicable base offense

level. The agreement contained only three stipulations – one relating to drug quantity,

and two relating to the government’s recommendation on decreases in the base offense

level due to W ooten’s acceptance of responsibility and cooperation. Contrary to

Wooten’s contention, the signed written agreement explicitly cautioned that the

government “cannot and does not make any representation or promise as to what

guideline range will be found applicable,” and that “the sentence to be imposed . . . is

within the sole discretion of the sentencing judge, subject to . . . the United States

Sentencing Guidelines.” At the plea hearing, the government recited the three

stipulations and reiterated there was no agreement as to the applicable guideline range.

   1
    Although he raised the issue at sentencing, Wooten has not appealed the District
Court’s finding that his prior offenses qualified him for career offender status under the
guidelines.
   2
    Count One charged Wooten with a violation of 21 U.S.C. § 846, Conspiracy to
Distribute and Possess W ith Intent to Distribute M ore than 50 Grams of Crack Cocaine.
The applicable sentencing guideline for violation of 21 U.S.C. § 846 is located in
U.S.S.G. § 2D1.1(c)(4) and carries a base offense level of 32.

                                               8
Wooten confirmed he understood his sentence could not be determined until after

completion of the presentence report, and that the court had authority to impose a

sentence more or less severe than that provided by the guidelines. We see no error.

D.      The Sentence Imposed Did Not Violate Apprendi v. New Jersey.

     Wooten alleges the District Court deprived him of his Due Process and Sixth

Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000),

because his 262 month prison sentence exceeded the statutory maximum for the

applicable offense. But there can be no due process violation because Wooten was

sentenced to a term of imprisonment less than the maximum sentence applicable for a

violation of 21 U.S.C. § 846. The plea agreement Wooten signed specifically informed

him that based on the stipulated drug quantity, the offense to which W ooten pled guilty

carried a maximum penalty of life imprisonment.

        In addition, by stipulating to drug quantity as part of his guilty plea, Wooten

waived his Sixth Amendment right to have this issue submitted to a jury. See Neely v.

Pennsylvania, 411 U.S. 954, 957 (1973) (“A guilty plea constitutes a waiver of the

fundamental rights to a jury trial . . . and to be convicted by proof beyond all reasonable

doubt.”); see also United States v. Leachman, 309 F.3d 377, 384 (6th Cir. 2002) (where

defendant “pled guilty to an indictment that specified the amount of drugs” he

“effectively waived his rights to have the amount of drugs proved to a jury beyond all

reasonable doubt when he pled guilty”).



                                               9
E.     The District Court Did Not Abuse its Discretion in Evidentiary Hearings.

       Wooten contends the District Court erred in denying several motions requesting

hearings on suppression of evidence and drug quantity and composition. Because the

request for a suppression hearing was made prior to entering the plea agreement,

Wooten’s subsequent guilty plea waived his right to appeal the legality of the search. See

Tollett v. Henderson, 411 U.S. 258, 267 (1973) (a defendant who pleads guilty waives the

right to appeal “independent claims relating to the deprivation of constitutional [or non-

constitutional] rights that occurred prior to the entry of the guilty plea.”). At sentencing,

Wooten’s attorney conceded that all outstanding motions were effectively withdrawn at

the time he entered the guilty plea.

       Wooten also submitted a motion several months after entering his guilty plea,

requesting a hearing on drug quantity and composition. At sentencing, the District Court

rejected W ooten’s request to conduct hearings on the drug quantity and composition.

       Wooten entered a binding plea agreement which included a stipulation as to the

drug quantity. The District Court accepted Wooten’s guilty plea, finding that the plea was

knowing, voluntary and factually sound. The actual weight of the cocaine base contained

in a drug mixture is irrelevant for sentencing purposes under § 841(b)(1)(a)(3). See

U.S.S.G. § 2D1.1, Note A ( “. . . the weight of a controlled substance set forth in the table

refers to the entire weight of any mixture or substance containing a detectable amount of

the controlled substance.”); see also United States v. Gurgiolo, 894 F.2d 56, 60-61 (3d



                                              10
Cir. 1990) (“Drugs containing detectable amounts of [illegal] substances . . . should be

weighed as a whole, irrespective of purity.”). The District Court did not err in rejecting

Wooten’s request for a hearing on drug quantity and composition.

                                            IV.

       For the reasons set forth, we will affirm the judgment of conviction and sentence.




                                             11
