UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 95-5252
JAMES RICHARD GARRISON, a/k/a Big
Red,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Terrence W. Boyle, District Judge.
(CR-94-138-MU)

Submitted: February 27, 1996

Decided: March 29, 1996

Before MURNAGHAN, WILKINS, and HAMILTON, Circuit
Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Bradford F. Icard, Charlotte, North Carolina; Richard D. Willstatter,
GREEN & WILLSTATTER, White Plains, New York, for Appellant.
Mark T. Calloway, United States Attorney, Gretchen C.F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

James Richard Garrison appeals the 180-month sentence he
received after his guilty plea to participation in a crack conspiracy, 21
U.S.C.A. § 846 (West Supp. 1995) (Count One), and possession of a
firearm in relation to drug trafficking crime, 18 U.S.C.A. § 924(c)
(West Supp. 1995) (Count Ten). We vacate the sentence and remand
for resentencing.

Garrison pled guilty to participation in a crack conspiracy and to
possession of a Raven .25 caliber semi-automatic pistol in relation to
a drug trafficking offense on August 5, 1994. He was carrying the
Raven .25 caliber pistol when he was arrested; a shotgun was seized
from his house. Following his plea, he also admitted to case agents
and the probation officer that he bought a Norinco .380 caliber semi-
automatic pistol in October 1993, during the conspiracy.

Garrison's plea agreement stipulated a factual basis for the guilty
plea and relieved the government of putting on evidence; it also
deferred presentation of a factual basis until sentencing. The agree-
ment contained the following waiver, which was brought to Garri-
son's attention during the Fed. R. Crim. P. 11 hearing:

          Provided that the sentence the Court imposes on the defen-
          dant does not exceed the maximum of the applicable Sen-
          tencing Guidelines range, the defendant knowingly and
          expressly waives the right to contest either the conviction or
          the sentence in any post-conviction proceeding, including
          any proceeding under 28 U.S.C. § 2255; provided further,
          this waiver shall not apply to rights based on allegations of
          ineffective assistance of counsel or prosecutorial miscon-
          duct.

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The agreement also required Garrison to cooperate with the gov-
ernment and promised that "[n]othing that the Defendant discloses
pursuant to this Plea Agreement shall be used against him in any
criminal proceeding."

The agreement stipulated that Garrison was responsible for 1.5
kilograms of crack, that the offense level for that amount would be
38,1 and that Garrison should get a 3-level adjustment for acceptance
of responsibility. Without additional enhancements and with a crimi-
nal history of I (as Garrison's turned out to be) the guideline range
for Count One would have been 168-210 months. However, the pro-
bation officer recommended a 4-level adjustment for a leadership
role, USSG § 3B1.1(a), and a 2-level enhancement under USSG
§ 2D1.1(b)(1) for possession of a firearm during a drug trafficking
offense as well as conspiracy. With these enhancements, Garrison's
recommended guideline range for Count One was 324-405 months.

Garrison objected to the role enhancement and also objected that
the weapon enhancement was not applicable because he was also
being sentenced under § 924(c) for use of a firearm in a drug traffick-
ing crime. See USSG § 2K2.4, comment. (n.2). The probation officer
responded that the leader adjustment was warranted because Garrison
made trips to New York for cocaine and admitted selling cocaine to
at least fifteen people on a regular basis, including leaders of drug
organizations. The probation officer suggested that the firearm
enhancement might be based on Garrison's possession of the Norinco
.380 caliber pistol at a separate time from the conduct underlying his
§ 924(c) conviction--his possession of the Raven .25 caliber pistol in
August 1994.

The government did not respond to Garrison's objections, but did
move for a substantial assistance departure to a sentence of 180
months. At sentencing, the district court did not address the objections
to the presentence report. Instead, the court told Garrison's attorney
that, "We're past that. . . . I can either give him a guideline sentence,
which I would be glad to do, or depart. . . . You don't get both, do
you follow me?" Defense counsel acquiesced and said Garrison
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual, § 2D1.1
(Nov. 1994).

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would accept the government's offer of a 180-month sentence. The
district court then found that the guideline range for Count One was
324-405 months, as recommended by the probation officer, and
departed to 180 months.

We must first decide whether Garrison's waiver of appeal rights
requires dismissal of his appeal. Garrison argues that the appeal must
be heard on the merits because the prosecutor breached the plea
agreement (and thus engaged in prosecutorial misconduct) by arguing
for a higher offense level than stipulated and providing protected
information to the probation officer, or alternatively, because his
attorney was ineffective in allowing him to reveal incriminating infor-
mation to the probation officer.

Because Garrison did not claim that the government had breached
the plea agreement in the district court, this claim is reviewed for
plain error, that is, error which affects substantial rights and seriously
affects the fairness, integrity, or public reputation of judicial proceed-
ings. United States v. Olano, 507 U.S. 725 (1993); United States v.
Fant, 974 F.2d 559, 562 (4th Cir. 1992).

Garrison first claims that the government breached the plea agree-
ment by arguing for the weapon enhancement. The probation officer's
response to Garrison's objection stated that the government "contends
this enhancement is applicable due to the fact that different guns were
involved during different time periods." The government did not
argue this position, however, either in a written response or at the sen-
tencing hearing. The government asserts in its supplemental brief that
the issue had been previously discussed in a general way with proba-
tion officers. Such discussion would not constitute prosecutorial mis-
conduct.

Second, Garrison claims the government improperly revealed to
the probation officer information he provided under the cooperation
agreement, i.e., his purchase of the Norinco pistol in October 1993.
Incriminating information which is provided under a cooperation
agreement, and which was previously not known to the government,
may not be used to determine the offense level. However, such infor-
mation must still be provided to the court. USSG§ 1B1.8(a), com-

                     4
ment. (n.1). In doing so, the government did not act improperly or
breach the plea agreement.

Third, Garrison argues that the government failed to fulfill the
promise made in the plea agreement that he could make and argue
objections to the presentence report because it"stood idly by" when
the district court declined to rule on his objections to the presentence
report. Although the government could have requested a ruling, its
failure to do so does not amount to prosecutorial misconduct.

However, when information provided by a defendant pursuant to
a cooperation agreement--and not already known to the government
--is used to enhance his sentence, the agreement is breached. Fant,
974 F.2d at 562-65. Such information repeated to a probation officer
is also protected. Id. at 564; USSG § 1B1.8, comment. (n.5). The gov-
ernment is equivocal about whether it had prior knowledge of Garri-
son's purchase of the Norinco .38 pistol and in fact suggests that it
did not because Garrison was the first conspirator to cooperate. The
government implies that if Garrison revealed his purchase of the
Norinco pistol before entering into the plea agreement, the enhance-
ment would be available.2 However, the government offers no evi-
dence that he did so. On the record before us, we conclude that the
agreement was breached. Therefore, Garrison's waiver of appeal
rights does not preclude us from addressing the merits of his appeal.
We do not address his ineffective assistance claim.

Garrison maintains that the district court erred in failing to resolve
his objections to the presentence report. We agree. Even when the dis-
trict court intends to depart, it should first determine the correct
guideline range. United States v. Talbott, 902 F.2d 1129, 1134 (4th
Cir. 1990). Here, the district court adopted the probation officer's rec-
ommendations without permitting Garrison to contest them and with-
out ruling on the objections. The court thus failed to comply with Fed.
R. Crim. P. 32(c)(1). The government's motion for a substantial assis-
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2 Apart from the USSG § 1B1.8 problem, the weapon enhancement
raises a legal issue this court has not considered--whether a defendant
who possesses more than one firearm in connection with a drug traffick-
ing offense may be convicted under § 924(c) for one firearm and receive
an enhancement under USSG § 2D1.1(b)(1) for a different firearm.

                     5
tance departure did not remove the district court's duty to rule on the
objections. Had Garrison prevailed on both of his objections to the
presentence report, his guideline range would have been 168-210
months. With a downward departure for substantial assistance, a sen-
tence below 168 months was possible, although the court could have
decided not to depart below the guideline range based on consider-
ation of Garrison's possession of the Norinco pistol. USSG § 1B1.8,
comment. (n.1). Moreover, defense counsel did not voluntarily aban-
don Garrison's objections because the district court erroneously
forced him to choose between resolution of the objections and a sub-
stantial assistance departure. Therefore, we vacate the sentence and
remand the case for resentencing.

Garrison also contends that he should be resentenced because he
was not sentenced by the same judge who accepted his guilty plea.
Because resentencing is required on other grounds, we need not
address this issue.

The sentence imposed by the district court is accordingly vacated
and the case is remanded for resentencing. On remand, the district
court should resolve Garrison's objections to the recommended
enhancements for leadership role and for possession of the Norinco
pistol before making a departure for substantial assistance. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

VACATED AND REMANDED

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