Gov't Did not Breach "Oral" Plea Agreement
US v. Tremble, No. 07-3130 (10th Cir. 2/20/08) (unpublished):
Tenth Circuit affirms Mr. Tremble's conviction and sentence for felon in possession. He was sentenced on Oct. 31, 2003, in Douglas County court to 40 months based on the same incident. He was also going to get sentenced in Shawnee County. In October 2004, he was indicted in federal court under 18 USC 922(g). There was no plea agreement, but the AUSA represented to the district court that the government would concede that any federal sentence should be concurrent with the Douglas County sentence and that he should get credit for the Douglas County time, but the government wanted the federal sentence to be consecutive to the Shawnee County sentence. Additionally, although the PSR calculated the GL range as 46-57 months imprisonment, the government asked for an upward variance, citing US v. Myers, 66 F.3d 1364 (4th Cir. 1995), in which consecutive sentences were imposed. Mr. Tremble was sentenced to 115 months, concurrent with the Douglas sentence but consecutive to the Shawnee sentence. Unfortunately, the Douglas sentence had been completed so the district court left it to the big-hearted BOP to figure the credit.
Mr. Tremble contended that the government breached its "oral plea agreement" by citing Myers. Although the Tenth acknowledged the principle the "concessions" by the government might be binding, but in this case the government did not advocate for a sentence other than what it had "conceded" earlier, so no breach. Secondly, Mr. Tremble argued that the court should have applied USSG 5G1.3(b). Unfortunately, that GL applies to undischarged terms of imprisonment, and the Douglas County sentence was fully served at the time of sentencing, so the district court did not err in not applying it.
Tenth Circuit affirms Mr. Tremble's conviction and sentence for felon in possession. He was sentenced on Oct. 31, 2003, in Douglas County court to 40 months based on the same incident. He was also going to get sentenced in Shawnee County. In October 2004, he was indicted in federal court under 18 USC 922(g). There was no plea agreement, but the AUSA represented to the district court that the government would concede that any federal sentence should be concurrent with the Douglas County sentence and that he should get credit for the Douglas County time, but the government wanted the federal sentence to be consecutive to the Shawnee County sentence. Additionally, although the PSR calculated the GL range as 46-57 months imprisonment, the government asked for an upward variance, citing US v. Myers, 66 F.3d 1364 (4th Cir. 1995), in which consecutive sentences were imposed. Mr. Tremble was sentenced to 115 months, concurrent with the Douglas sentence but consecutive to the Shawnee sentence. Unfortunately, the Douglas sentence had been completed so the district court left it to the big-hearted BOP to figure the credit.
Mr. Tremble contended that the government breached its "oral plea agreement" by citing Myers. Although the Tenth acknowledged the principle the "concessions" by the government might be binding, but in this case the government did not advocate for a sentence other than what it had "conceded" earlier, so no breach. Secondly, Mr. Tremble argued that the court should have applied USSG 5G1.3(b). Unfortunately, that GL applies to undischarged terms of imprisonment, and the Douglas County sentence was fully served at the time of sentencing, so the district court did not err in not applying it.
posted by Anonymous at 11:45 AM
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