[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 15, 2008
No. 07-11317 THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00073-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY LAWRENCE CARLISLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 15, 2008)
Before BLACK, CARNES and COX, Circuit Judges.
PER CURIAM:
Raising two contentions, Jeremy Carlisle appeals the 135 month sentence he
received after he pleaded guilty to conspiracy to possess with intent to distribute
more than 500 grams of methamphetamine, in violation of 21 U.S.C. § 846.
I.
Carlisle’s first contention is that the Government violated the terms of his
plea bargain by not evaluating the assistance he had rendered up to the time of
sentencing and deciding whether to move at that time under U.S.S.G. § 5K1.1 for
a downward departure based on substantial assistance. This is not the identical
issue that Carlisle raised in the district court.
At sentencing, when the district court asked the Government whether it was
going to make a motion, the AUSA replied that a Federal Rule of Criminal
Procedure 35 motion “is still in the works,” but that the Government was “not
prepared to make that motion at this time.” He explained that “this defendant’s
cooperation is still ongoing and an appropriate motion would be made at the
correct time, subsequent to this proceeding.” Carlisle cited to the district court
United States v. Alvarez, 115 F.3d 839 (11th Cir. 1997), which he characterized as
standing for the proposition that “there is a temporal distinction between 5(k)1
departures and Rule 35 departures,” “[a]nd to the extent that Mr. Carlisle has
cooperated to this point . . . it would be our objection that Mr. Carlisle is due
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cooperation departure at this time for what is — has happen [sic] up to now and a
Rule 35 for what has happened after.”
The district court responded that it had “absolutely no jurisdiction, authority
or ability to make them file a 5(k) motion.” Carlisle conceded that was correct but
explained that he wanted to “preserve it for the record” because the decision in
Alvarez, as he interpreted it, meant that the court would not be able to grant a Rule
35 post-sentencing motion based on cooperation that had preceded sentencing.
The court disagreed, stating that any cooperation Carlisle had provided before
sentencing could be considered “overall in the 35.” While Carlisle “tend[ed] to
agree with that,” he wanted to preserve the point “in an abundance of caution,
[because] there are several Circuits that have followed that rule.”
There is a dispute as to which standard of review we should apply in this
case. According to Carlisle, the appropriate standard is de novo. The
Government, on the other hand, contends we should review only for plain error,
since Carlisle did not specifically claim the Government breached the plea
agreement in district court. In the end, it does not matter which standard of review
we use, as the result is the same under both. There was no error, plain or
otherwise.
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The plea agreement could not be clearer that the decision about whether
Carlisle had provided assistance that was substantial enough to persuade the
Government to file a § 5K1.1 or Rule 35 motion was reserved exclusively to the
Government. The agreement expressly states that whether Carlisle’s cooperation
had been “complete, truthful and substantial” and had resulted in “substantial
assistance to the United States in the investigation or prosecution of another
criminal offense,” is “a decision specifically reserved by the United States in the
exercise of its sole discretion.” And it reiterates that: “The United States
specifically reserves the right to make the decision relating to the extent of any
such departure request made under this agreement based upon its evaluation of the
nature and extent of the defendant’s cooperation.”
Carlisle’s position in the district court and much of his position before us is
based on the erroneous premise that the cooperation he provided before sentencing
could not be considered in deciding whether and to what extent he had provided
substantial assistance for purposes of a post-sentence Rule 35 motion. That was
the state of the law when the Alvarez case was decided in 1997, but the law
changed when Rule 35 was amended in 1998. As amended, the rule explicitly
provides that “[i]n evaluating whether the defendant has provided substantial
assistance, the court may consider the defendant’s presentence assistance.” Fed.
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R. Crim. P. 35(b)(3). To the extent Carlisle is arguing, or other circuits have held,
that presentence assistance that is by itself substantial may not be considered in a
post-sentencing Rule 35 departure, that is simply wrong. Fed. R. Crim. P. 35
advisory committee’s note to 1998 amendment. (“Thus, the amendment permits
the court to consider, in determining the substantiality of post-sentencing
assistance, the defendant’s pre-sentencing assistance, irrespective of whether that
assistance, standing alone, was substantial.”).
To the extent that Carlisle is arguing that the Government was obligated to
decide one way or the other at the time of sentencing whether his cooperation up
to that point had been substantial, there is no error. The plea agreement reserved
the substantial assistance motion to “the United States in the exercise of its sole
discretion,” and does not plainly require it to make that decision at sentencing,
instead of later. In fact, the plea agreement specifies that if the Government
decides Carlisle has rendered substantial assistance, it will move for a downward
departure either “in accordance with Section 5K1.1 of the United States
Sentencing Guidelines or Rule 35 of the Federal Rules of Criminal Procedure,
whichever the United States deems applicable.” (emphasis added).
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II.
The second contention Carlisle raises is that the district court erred in
denying him an acceptance of responsibility reduction in the calculation of his
advisory guidelines range. That issue is barred from review by the valid appeal
waiver that Carlisle agreed to as part of the plea bargain. It is also frivolous in
light of the fact that he violated the terms of his pretrial supervisory release by
using methamphetamine and by absconding; he had to be apprehended by law
enforcement. See United States v. Hromada, 49 F.3d 685, 691 (11th Cir. 1995).
AFFIRMED.1
1
This case was initially scheduled for oral argument, but the panel unanimously elected to
decide it on the briefs and record. See 11th Cir. R. 34-3(f).
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