United States Court of Appeals
For the First Circuit
No. 02-1824
UNITED STATES,
Appellee,
v.
THOMAS FRAZIER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Ponsor, U.S. District Judge.*
Bruce Green for appellant.
Kevin P. McGrath, Assistant United States Attorney, with whom
Heidi E. Breiger, Assistant United States Attorney, and Michael J.
Sullivan, United States Attorney, were on brief, for appellee.
August 18, 2003
*
Of the United States District Court for the District of
Massachusetts, sitting by designation.
LIPEZ, Circuit Judge. In securing a plea agreement, the
government will frequently promise to forego advocacy of an upward
departure at a defendant's sentencing. The government made such a
promise in this case. To resolve this appeal, we must determine
whether the government, consistent with that promise, could then
inform a panel of this court during a prior appeal that the
district court "should be free" on resentencing to upwardly depart
sua sponte if the district court determined that the defendant's
criminal history category under the applicable sentencing
guideline, see U.S.S.G. § 4A1.3, under-represented the seriousness
of his criminal history. The line between "information" and
"advocacy" can be a fine one. Although the government's clumsily-
composed brief in the prior appeal was regrettable, we conclude
that the government did not cross the line. We therefore affirm
the sentence imposed by the district court.
I.
In September 1997, defendant-appellant Thomas Frazier was
indicted on two counts of distributing cocaine base, see 21 U.S.C.
§ 841(a)(1) (2002), and one count of conspiracy to distribute
cocaine base, see id. § 846. Pursuant to a written plea agreement
executed in May 1999, Frazier agreed to plead guilty to one
substantive count specifying a transaction that took place on July
17, 1997. In exchange for Frazier's guilty plea, the government
agreed to dismiss the conspiracy charge and the remaining
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substantive count. As for sentencing, the plea agreement provided
as follows:
The U.S. Attorney and Defendant agree that
there is no basis for a departure from the
sentencing range established by the United
States Sentencing Guidelines [except that
Defendant reserves the right to argue for a
downward departure based upon his family
circumstances].1 Accordingly, neither the U.S.
Attorney nor Defendant will seek a departure
on any ground from the Sentencing Guidelines.
The U.S. Attorney expressly reserves the right
to seek an upward departure pursuant to
U.S.S.G. § 4A1.3 should any of Defendant's
prior state convictions be vacated subsequent
to the execution of this Agreement.
The agreement also reserved the U.S. Attorney's right to "argue the
correctness of the Defendant's sentence and the manner in which the
District Court determines it," should Frazier pursue any appeal.
A subsequent Pre-Sentence Report ("PSR") prepared by the
U.S. Probation Office revealed that Frazier was a leader in a
Worcester, Massachusetts, drug gang called the Vice Lords, and that
he had a prior August 1995 drug trafficking conviction and an
August 1997 assault and battery conviction. As a result, at
Frazier's November 1997 sentencing hearing, and over his objection,
the district court determined that Frazier was a "career offender,"
see U.S.S.G. § 4B1.1, and, accordingly, assigned to him a criminal
history category ("CHC") of VI. Since the court determined that
Frazier was a career offender with the highest possible criminal
1
The bracketed material was inserted by hand into the
typewritten agreement and initialed by all parties.
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history category, it did not need to determine whether Frazier's
CHC under-represented the seriousness of his criminal history.
Also as a result of the career offender designation, the district
court did not need to consider Frazier's objection to the PSR's
role-in-the-offense calculation, see U.S.S.G. § 3B1.1, since it
would not have affected the sentence in any event.
Frazier appealed his sentence, arguing that the district
court erred in its career offender determination, and asking us to
reverse that determination and remand the case "for resentencing by
the District Court after consideration of the Defendant's Role in
the Offense objection." In response, the government filed a motion
for remand, conceding that the district court had erred in its
career offender calculation. Frazier's August 1997 assault and
battery conviction — upon which the career offender calculation was
partially based — occurred after the July 1997 offense for which
Frazier was being sentenced, and therefore should not have been
considered. The government's brief in support of its motion for
remand contained the following text at the end:
Given that the erroneous determination of the
defendant as a career offender impacted the
defendant's GSR [guideline sentencing range],
the case should be remanded for resentencing.
As the defendant points out in his brief, at
resentencing, the district court would need to
resolve the defendant's objection to the PSR's
role adjustment. On resentencing, moreover,
the district court should be free to consider
the applicability of U.S.S.G. § 4A1.3, which
provides for upward departures when a
sentencing court determines that the
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defendant's CHC under-represents the
seriousness of the defendant's criminal
history.
The boldface and italicization in the above-quoted excerpt is as it
appeared in the original. Frazier did not object at that time to
the form or substance of the government's remand motion. Upon
consideration of the parties' submissions, a prior panel of this
court agreed that the district court had erred and issued an order
on November 9, 2001, which stated:
We therefore allow the government's motion,
vacate the judgment [of the district court]
and remand the case for resentencing. Upon
remand, the district court should resolve the
defendant's objection to the two-level
adjustment for his role in the offense. We
take no view whether the circumstances of this
case might warrant an upward departure under
[U.S.S.G.] § 4A1.3.
Frazier did not seek modification of this order.
On May 3, 2002, the district court convened a
resentencing hearing in accordance with our mandate. In
recalculating Frazier's CHC, the court concluded that Frazier had
eight criminal history points, placing him in CHC IV. The court
added:
It is also appropriate for me to note, for the
record, that the Mandate from the First
Circuit Court of Appeals did call my
attention, although it took no stand, on the
possibility that this case might warrant an
upward adjustment under Guideline 4A1.3.
The court then stated, prior to soliciting any comments from
counsel, that it was "inclined" to depart upward and assign a CHC
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of V because, in the court's view, there was reliable information
in the PSR indicating that a CHC of IV inadequately reflected the
seriousness of Frazier's criminal history.
The court then solicited comments from counsel. The
Assistant United States Attorney's ("AUSA") immediate response was,
"Your honor, I did not make that motion," but added that "I
certainly would be happy to provide the Court with additional
briefing in support of such a finding." Counsel for Frazier then
addressed the court, stating that it would be a breach of the plea
agreement for the government to advocate for an upward departure:
I would be concerned if my sister actively
provides information or a briefing in support
of the Court's inclination mainly because the
plea agreement that we have with the
government says that it will not seek — and I
assume that that means will not support — an
upward departure in this case. So I would
suggest that if that were to occur, that that
would constitute a breach of the plea
agreement.
Defense counsel also stated that he had not anticipated having to
argue against an upward departure, and therefore requested a
continuance to brief the issue. The court granted the request and
set a briefing schedule. The AUSA then indicated that she would go
back and check the plea agreement: "I will review it and certainly
will take no action to breach an agreement we've already reached."
Three weeks after the hearing, Frazier filed in the
district court a "Motion for Specific Performance of Plea
Agreement's Terms and Memorandum in Opposition to Upward Departure
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Pursuant to Section 4A1.3." In this filing, Frazier contended for
the first time that the government had breached its plea agreement
while the original sentence was under appeal: "While the
government has not explicitly violated the plea agreement, it did
perform an end run around it by arguing superfluously in its motion
for remand that the district court could consider a 4A1.3 upward
departure upon resentencing." In its response to Frazier's motion,
the government stated that it would not advocate for a departure at
resentencing. It also stated that its motion for remand "set out
an accurate legal principle indicating for the Court of Appeals the
limits of its mandate," and that this did not constitute a breach
of the plea agreement.
At the continued resentencing hearing on May 28, 2002,
the district court rejected Frazier's claim that the government had
breached the plea agreement: "Simply the mention in [the
government's] papers filed in the First Circuit Court of Appeals
that 4A1.3 was applicable doesn't indicate to me that there has
been any breach or any request by the government that I upwardly
[depart]." The court therefore denied Frazier's motion for
specific performance.
The district court then acted on its inclination to
upwardly depart. For reasons detailed below, see Part IV.B, the
district court determined that Frazier's criminal history category
was under-represented by his otherwise applicable CHC of IV. The
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court concluded that a CHC of V was appropriate, placing Frazier in
a sentencing range of 120 to 150 months, rather than category IV's
range of 100 to 125 months. The government made no recommendation
as to sentence within that range, and the district court sentenced
Frazier to a 138-month term of incarceration. This appeal ensued,
with Frazier requesting that this case "be remanded for
resentencing either by a different judge or for a sentence within
the guideline range."
II.
Frazier presses two arguments on appeal. First, he
claims that the district court erred in rejecting his argument that
the government breached the terms of the plea agreement. According
to Frazier, the bold and italicized language contained in the
government's motion for remand, if not an outright breach, was an
impermissible "end run" around the substance of the plea agreement.
In evaluating whether the government has breached a plea agreement,
we employ differing standards of review depending upon the
circumstances. In this case, the facts giving rise to the alleged
breach are not in dispute. "Thus, we must determine only the legal
question of whether the government's undisputed conduct breached
the plea agreement, which we review de novo." United States v.
Clark, 55 F.3d 9, 11 (1st Cir. 1995); see United States v. Doe, 233
F.3d 642, 644 (1st Cir. 2000) ("[W]hether [the government's]
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conduct constituted a breach of the plea agreement is a question of
law subject to plenary review.").
Next, assuming there was no breach, Frazier argues that
the district court erred in its decision to upwardly depart
pursuant to U.S.S.G. § 4A1.3. As explained in Part III.B, infra,
the applicable standard of review has been changed in part through
a recent legislative enactment. In the past, we would have
deferred to the district court's determination regarding the
adequacy of a defendant's CHC unless we could find no support for
that conclusion in the record. United States v. Diaz-Martinez, 71
F.3d 946, 952 (1st Cir. 1995); see United States v. Campbell, 61
F.3d 976, 985 (1st Cir. 1995) ("We review the court's factual
findings for clear error, and we give considerable deference to its
'judgment call' as to whether those facts warrant the departure.").
However, with the passage of the Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act of 2003 ("PROTECT
Act"), Pub. L. No. 108-21, 117 Stat. 650 (2003), we must now
undertake de novo review of that determination.
III.
A. The Alleged Breach of the Plea Agreement
Over thirty years ago, the Supreme Court attested to the
important role that plea agreements play in our criminal justice
system:
Disposition of charges after plea discussions
is not only an essential part of the process
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but a highly desirable part for many reasons.
It leads to prompt and largely final
disposition of most criminal cases; it avoids
much of the corrosive impact of enforced
idleness during pretrial confinement for those
who are denied release pending trial; it
protects the public from those accused persons
who are prone to continue criminal conduct
even while on pretrial release; and, by
shortening the time between charge and
disposition, it enhances whatever may be the
rehabilitative prospects of the guilty when
they are ultimately imprisoned.
Santobello v. New York, 404 U.S. 257, 261 (1971). While these (and
other) important considerations provide incentives for all sides to
engage in plea discussions, a defendant must ultimately waive
fundamental constitutional rights as a result of entering into any
plea agreement. Hence, "we hold prosecutors engaging in plea
bargaining to 'the most meticulous standards of both promise and
performance,'" United States v. Riggs, 287 F.3d 221, 224 (1st Cir.
2002) (quoting United States v. Velez Carrero, 77 F.3d 11, 11 (1st
Cir. 1996)), and we are wary of government claims that the
prosecution "technically" complied with the terms of the agreement
when the net effect of the government's behavior undermines the
"benefit of the bargain" upon which a defendant has relied. Our
case law prohibits "not only explicit repudiation of the
government's assurances, but must in the interests of fairness be
read to forbid end-runs around them." United States v. Saxena, 229
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F.3d 1, 6 (1st Cir. 2000); United States v. Canada, 960 F.2d 263,
269 (1st Cir. 1992).2
In determining whether the government has breached a plea
agreement, "[w]e are guided . . . by general principles of contract
law." Clark, 55 F.3d at 12; see United States v. Gonzales-Sanchez,
825 F.2d 572, 578 (1st Cir. 1987) ("Contractual principles apply
insofar as they are relevant in determining what the government
'owes' the defendant."). As explained above, however, "[a] plea
agreement is not an appropriate context for the Government to
resort to a rigidly literal approach in the construction of
language." United States v. Garcia, 698 F.2d 31, 37 (1st Cir.
1983) (quoting United States v. Bowler, 585 F.2d 851, 854 (7th Cir.
1978)). "Likewise, as in all contracts, plea agreements are
accompanied by an implied obligation of good faith and fair
dealing." United States v. Ahn, 231 F.3d 26, 35–36 (D.C. Cir.
2000) (internal quotation marks omitted). Moreover, pursuant to
contract law, even an unintended breach is, nevertheless, still a
breach. See United States v. Mercedes-Amparo, 980 F.2d 17, 19 n.3
(1st Cir. 1992) (stating that the fact that "breach was inadvertent
2
We have previously indicated, however, that "minor
deviations from the plea agreement will not mandate resentencing."
Clark, 55 F.3d at 14 n.3. Only a deviation that "affect[s] the
consideration due the defendant under the plea agreement" can be
considered a breach that entitles a defendant to a remedy. Id.;
see Panzardi-Alvarez v. United States, 879 F.2d 975, 986 (1st Cir.
1989) ("The government may not breach any term of a plea agreement
which induced the defendant to plea guilty.") (emphasis added).
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. . . does not lessen its impact") (quoting Santobello, 404 U.S. at
262).
Frazier claims that the government breached the terms of
his plea agreement when, during the course of his prior appeal, the
government inserted the following boldfaced and italicized language
at the end of its remand motion:
On resentencing, moreover, the district court
should be free to consider the applicability
of U.S.S.G. § 4A1.3, which provides for upward
departures when a sentencing court determines
that the defendant's CHC under-represents the
seriousness of the defendant's criminal
history.
(original emphasis). As Frazier notes, the government chose to
place only the foregoing in boldface and italics: "No other
passage in the document received this treatment, just this one."
Frazier argues that this excerpt, presented in that format, was an
"end-run" around the following provision of his plea agreement:
The U.S. Attorney and Defendant agree that
there is no basis for a departure from the
sentencing range established by the United
States Sentencing Guidelines. . . .
Accordingly, neither the U.S. Attorney nor
Defendant will seek a departure on any ground
from the Sentencing Guidelines.
According to Frazier, the language in the government's brief was
"not just a mere statement of a truism, it is advocacy for a
departure which the government explicitly agreed not to do." The
government responds by calling its choice of words and formatting
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"regrettable" in retrospect, but insists that there was no breach
of the plea agreement.
Frazier relies on two cases in support of his claim —
United States v. Clark, and United States v. Canada. In Clark, the
defendant pleaded guilty in return for the government's promise
that it would not oppose a three-level reduction for acceptance of
responsibility. See Clark, 55 F.3d at 12. Nonetheless, the
government effectively opposed such a reduction when, in its
sentencing memorandum to the district court, it explicitly argued
that the defendant did not appear to qualify for it. Id. In
United States v. Canada, the government, as part of the plea
agreement, agreed to recommend a 36-month sentence and to notify
the court of the full nature and extent of the defendant's
cooperation. Canada, 960 F.3d at 268. The government simply
failed to do either. See id. at 269–70. In Frazier's case,
however, the government did not fail to argue something that it
explicitly promised to, nor did the government explicitly argue
anything prohibited by the plea agreement.
The language at issue in the plea agreement was in a
section entitled "Sentence Recommendation," and, by its own terms,
only refers to sentencing. Neither at Frazier's initial
sentencing, nor at his resentencing subsequent to his previous
appeal, did the government ever recommend, move, argue, or
otherwise support an upward departure. Indeed, the government
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repeatedly stated in the district court that it was bound not to
seek an upward departure. While the government did indicate at one
point during Frazier's initial hearing after remand that it "would
be happy" to provide briefing in support of an upward departure,
the government ultimately retreated from that position once it
actually took the time to re-examine the original plea agreement.
Hence we conclude that the government did not technically violate
the terms of the plea agreement.
However, as noted, the government cannot rely on mere
technical compliance, and adherence to the terms of a plea
agreement "requires more than lip service on a prosecutor's part."
Saxena, 229 F.3d at 6. Instead, the prosecution's "overall conduct
must be reasonably consistent" with the promises contained in a
plea agreement. Canada, 960 F.2d at 269. At first blush, the
government's behavior in this case seems dubious. Why would the
government aver in the plea agreement that "there is no basis for
a departure from the sentencing range established by the United
States Sentencing Guidelines," but then include the language at
issue in its appellate brief, unless the government concluded that
there was a basis for — indeed, that it sought — an upward
departure from the district court? Moreover, the government
complicated matters by putting that very language, and that
language alone, in boldfaced and italicized typeface. The
government concedes the clumsiness of its conduct:
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The government acknowledges that, had it been
mindful of the provision barring it from
seeking an upward departure, it would have
taken pains to ensure that the this [sic]
Court's remand order did not affirmatively
call the district court's attention to its
option of upwardly departing. The government
contends, however, that it was not barred by
the plea agreement from seeking an accurate
remand order in this case. Thus, while the
government regrets that [sic] did not handle
this situation with more care, it respectfully
submits that its action did not rise to either
an intentional or unintentional breach of the
plea agreement warranting yet another remand.
In evaluating the government's explanation, we must be
cognizant of the unusual procedural history of this case. After
laying out a challenge to his career offender designation in his
initial appellate brief, Frazier asked us to remand the case "for
resentencing by the District Court after consideration of the
Defendant's Role in the Offense objection." Seeing this language,
the government was concerned that merely conceding the erroneous
career offender designation without saying more might have led us
to vacate the sentence and remand with unduly limiting directions,
i.e., we might have issued a judgment saying that "the case is
remanded for resentencing and consideration of the defendant's
objection to the two-level adjustment for his role in the offense,"
and no more. Such a remand could have misled the district court
into believing that it could not sua sponte consider an upward
departure at resentencing. If this had happened, Frazier, in
effect, would have gotten more than he had bargained for in his
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plea agreement.3 Hence, according to the government, it was simply
seeking "an accurate remand order" by including the contested
language in its brief.
We conclude that the government's concern about the
phrasing of Frazier's remand request was warranted, and that its
goal of seeking "an accurate remand order" was therefore within its
rights under the plea agreement, as well as its obligation under
the law. The government is under a constant obligation to ensure
the integrity of the proceedings at all levels, notwithstanding the
terms of any plea agreement. See Saxena, 229 F.3d at 6 ("The
government's obligation to furnish relevant information . . . does
not vanish merely because the government has a corollary obligation
to honor commitments under a plea agreement."). Seeing the
potential for an unduly and unwittingly restrictive remand order
from the court of appeals because of the unusual posture of this
case, the government acted reasonably in alerting us to this
possibility. Although an alert with different phrasing and format
might have produced a remand order from us that preserved the
flexibility of the district court without a specific reference to
an upward departure, we cannot equate the clumsiness of the
government's alert with a breach of the plea agreement. We were
3
Frazier acknowledged in the plea agreement that the
sentencing court was not bound by the agreement's terms, and that
the sentencing judge was free to disregard the recommendations of
the parties as well as to upwardly depart from the Sentencing
Guidelines.
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not the sentencing court. The government never advocated for an
upward departure before the district court. It furnished "the
consideration due the defendant under the plea agreement." Clark,
55 F.3d at 14 n.3. The government did nothing more than urge us to
fashion a remand order that did not impose an unwarranted
restriction on the sentencing court. Therefore, we conclude that
the contested language contained in the government's appellate
brief did not constitute a breach of the plea agreement.
B. The Upward Departure
Frazier asserts that the sentencing court erred in
upwardly departing under U.S.S.G. § 4A1.3, which provides as
follows:
If reliable information indicates that the
criminal history category does not adequately
reflect the seriousness of the defendant's
past criminal conduct or the likelihood that
the defendant will commit other crimes, the
court may consider imposing a sentence
departing from the otherwise applicable
guideline range.
Id. Frazier argues that his criminal history does not support such
a departure. He does not challenge, however, the factual findings
upon which the district court premised the departure:
C that when Frazier was arrested in 1995 on drug
charges, he was found in possession of three firearms
and fifteen rounds of ammunition for which he was not
charged;
C that he had committed two "very serious" separate
assaults and batteries on a female friend for which
he received only one sentence;
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C while in custody for one of his assaults, he
threatened to kill the victim if the charges were not
dropped;
C when he was served with a restraining order, he told
the police officer that he was going to "fuck[] up"
the complainant and that the serving officer had
"better be careful" when he was out on the street.
In assessing the significance of these findings, we must
first take into account Congress's recent enactment of the
Prosecutorial Remedies and Tools Against the Exploitation of
Children Today Act of 2003 ("PROTECT Act"), Pub. L. No. 108-21, 117
Stat. 650 (2003). Section 401 of the PROTECT Act amends 18 U.S.C.
§ 3742 which governs our review of sentencing appeals. In United
States v. Thurston, No. 02-1966 (1st Cir. Aug. 4, 2003), we held
that the PROTECT Act applies to appeals pending as of its effective
date, April 30, 2003. See id. slip op. at 45–47. While Thurston
concerned an appeal by the government of an unacceptably low
sentence, we see nothing in the language of the PROTECT Act which
limits its applicability to downward departures. Section 401(d)(1)
of the PROTECT Act refers to "review of departures," without
distinguishing between the upward or downward varieties. We also
note that § 401(d)(3) of the Act specifically contemplates
situations in which "the sentence is too high" and "the sentence is
too low." See id. (amending 18 U.S.C. § 3742(f)(2)). We therefore
conclude that § 401(d) of the PROTECT Act applies to our review of
upward as well as downward departures in cases pending on direct
review as of April 30, 2003.
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In light of the new law, we must now review de novo the
question whether the underlying facts of this case warranted the
district court's consideration of an upward departure.4 See id. at
48. In enacting the PROTECT Act,
Congress requires the courts of appeals to
consider whether a sentence that departs from
the applicable guideline range is based on a
factor that:
(i) does not advance the
objectives set forth in
section 3553(a)(2); or
(ii) is not authorized under
section 3553(b); or
(iii) is not justified by the
facts of the case[.]
Thurston, slip op. at 44 (quoting 18 U.S.C. § 3742(e)(3)(B)). Upon
due consideration of these three criteria, we conclude that the
upward departure was permissible and warranted under U.S.S.G.
§ 4A1.3, largely for the reasons articulated by the district court
at sentencing and memorialized in the court's Statement of Reasons
4
Under the PROTECT Act we continue to give due deference to
the district court's determination on the degree of departure
warranted by the facts. See id. § 401(d)(2) (amending 18 U.S.C.
§ 3742(e)).
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appended to its Amended Judgment.5 We also conclude that the
degree of departure was amply justified by the facts.
We write further to highlight only one other point.
Frazier cites only two cases in support of his claim that the
departure was unwarranted — United States v. Brewster, 127 F.3d 22
(1st Cir. 1997), and United States v. Ocasio, 914 F.2d 330 (1st
Cir. 1990). In both of these cases we affirmed upward departures
for defendants whose factual histories, Frazier insists, were more
egregious than his. That may or may not be the case. However, it
was only a two-month quirk of timing that kept Frazier's prior
criminal conduct from garnering him a career offender designation
5
At the sentencing hearing, the district court noted Frazier
was never charged in connection with weapons he possessed at the
time of his arrest in 1995 on drug charges:
That indicates to me a particular seriousness of this
man's conduct and the likelihood of recidivism. This is
a very serious matter where we have not only involved a
possession of a controlled substance with intent to
distribute[,] but firearms, lots of ammunition, and
fingerprints of the defendant on the firearm[s].
In its written findings, the court stated that the otherwise
applicable CHC significantly under-represented the seriousness of
Frazier's conduct and the likelihood that he would commit further
crimes, because, "among other things,"
1) he committed two separate assaults and batteries in
July 1997 for which he was sentenced together . . . 2) in
connection with his 1995 drug conviction, he was involved
with firearms . . . and 3) after his arrest in July,
1997[,] for two assaults, he threatened to kill the
victim, tried to persuade her to drop the charges and
even threatened the arresting officer.
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and a CHC of VI. Therefore, the district court's sentence was more
than warranted.
AFFIRMED.
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