United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2308
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Cory Shane Peacock, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 28, 2007
Filed: November 14, 2007
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Before COLLOTON, ARNOLD and GRUENDER, Circuit Judges.
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PER CURIAM.
Cory Shane Peacock entered into a plea agreement with the Government,
waived indictment and pled guilty to conspiracy to distribute and possess with intent
to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. §
846 and possession of a firearm during a drug-trafficking offense in violation of 18
U.S.C. § 924(c). Under the terms of the plea agreement, Peacock agreed to plead
guilty to the criminal information and cooperate with the Government while the
Government agreed to consider filing a motion for a downward departure for
substantial assistance under United States Sentencing Guidelines § 5K1.1 and agreed
that Peacock was eligible for a two-level reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1. Paragraph 14 of the plea agreement explicitly stated that:
A. Defendant acknowledges and understands that if the defendant
violates any term of this Agreement, [or] engages in further criminal
activity prior to sentencing, . . . the United States shall have . . . the right
to:
(1) terminate this Agreement; or
(2) proceed with Agreement and
(a) deny any and all benefits to which the defendant would
otherwise be entitled under the terms of the Agreement;
and/or
(b) advocate for any sentencing enhancement that may be
appropriate.
(emphasis added).
While free on bond prior to sentencing, Peacock was arrested for
manufacturing, possessing and tendering counterfeit currency. At sentencing, the
Government presented testimony establishing that Peacock had manufactured,
possessed and tendered counterfeit currency. Based on his continuing criminal
activity, the Government asked the district court1 to deny credit to Peacock for
acceptance of responsibility, which it did. The Government also did not file a § 5K1.1
motion for downward departure. The district court sentenced Peacock to 360 months’
imprisonment on the conspiracy count and a consecutive 60 months’ imprisonment
on the firearm count as required by § 924(c), for a combined sentence of 420 months’
imprisonment.2
1
The Honorable George Howard, Jr., now deceased, United States District
Judge for the Eastern District of Arkansas.
2
In the “Statement of the Case” section of his brief, Peacock states that the
district court sentenced him to 300 months’ imprisonment for the first count and 60
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For the first time on appeal Peacock claims that he did not enter the guilty plea
knowingly and voluntarily. Because Peacock did not raise this issue before the district
court, we cannot consider it. See United States v. Murphy, 899 F.2d 714, 716 (8th Cir.
1990) (holding that a claim that a guilty plea was involuntary “first must be presented
to the district court and [is] not cognizable on direct appeal”). Even if we were to
address Peacock’s argument, we would reject it. We have reviewed the Rule 11
colloquy, and we see no error in the district court’s determination at the change of plea
hearing that Peacock entered the plea knowingly and voluntarily. Only after he
received a larger sentence than he expected did Peacock claim he did not knowingly
and voluntarily enter the plea. Receiving a larger-than-expected sentence does not
make the plea unknowing or involuntary. See United States v. Ramirez-Hernandez,
449 F.3d 824, 826 (8th Cir. 2006) (holding that a defendant could not withdraw his
guilty plea simply because he received a greater sentence than he expected).
Peacock also argues that the Government misrepresented its intentions in the
plea agreement when it stated that it would consider moving for a § 5K1.1 downward
departure. Peacock, however, offers no evidence that the Government did not intend
to abide by the plea agreement. Moreover, Paragraph 14 of the plea agreement
specifically allowed the Government to “deny any and all benefits to which [Peacock]
would otherwise be entitled,” including the potential for receiving a downward
departure motion for substantial assistance if Peacock engaged in further criminal
activity, which he did.
months’ imprisonment for the second count. After announcing the 420-month
sentence and just prior to announcing the term of supervised release, the district court
apparently misspoke and referred to a 360-month term of imprisonment. However,
the initial pronouncement of the sentence as well as the written judgment order make
it clear that the district court sentenced Peacock to a total of 420 months’
imprisonment. Moreover, Peacock failed to raise any issue of ambiguity of his
sentence in his brief and therefore waived any potential argument. See United States
v. Darden, 70 F.3d 1507, 1549 n.18 (8th Cir. 1995) (an argument not raised in an
opening brief is considered waived).
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Peacock further contends that the district court miscalculated the advisory
sentence guidelines range by denying him a reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1. “A district court’s factual determination on whether a
defendant has demonstrated acceptance of responsibility is entitled to great deference
and should be reversed only if it is so clearly erroneous as to be without foundation.”
United States v. Nguyen, 339 F.3d 688, 690 (8th Cir. 2003). The district court did not
clearly err in finding that Peacock was not entitled to a reduction for acceptance of
responsibility based on his subsequent criminal activity. See United States v. Byrd,
76 F.3d 194, 197 (8th Cir. 1996) (holding that a district court could consider a
defendant’s post-plea criminal activity in denying a reduction for acceptance of
responsibility).
Finally, Peacock challenges his sentence as unreasonable, which we review for
abuse of discretion. See United States v. Lee, 454 F.3d 836, 838 (8th Cir. 2006). A
district court abuses its discretion in sentencing if it
fails to consider a relevant factor that should have received significant
weight, gives significant weight to an improper or irrelevant factor, or
considers only appropriate factors but nevertheless commits a clear error
of judgment by arriving at a sentence that lies outside the limited range
of choice dictated by the facts of the case.
United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). We presume that a
sentence within the properly calculated guidelines range is reasonable. Rita v. United
States, 551 U.S. ---, 127 S. Ct. 2456, 2462 (2007).
On appeal, Peacock fails to identify any specific factors the district court should
have but failed to consider or any improper or irrelevant factors the district court
considered. At sentencing, the district court acknowledged that the guidelines were
advisory and specifically noted that it had considered Peacock’s history and
characteristics, along with other 18 U.S.C. § 3553(a) factors. Therefore, we find that
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Peacock’s 420-month sentence, a sentence within the advisory guidelines, is not
unreasonable.
Accordingly, we affirm the conviction and sentence.
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