Prosecutor May Threaten Defendant with Applicable Sentencing Enhancements in Plea Negotiations

United States v. Creighton, 2017 WL 1325678 (10th Cir. April 11, 2017 (WY): The panel affirms Creighton’s life sentence and rejects his challenge that this sentence was the result of prosecutorial vindictiveness. Four weeks before trial, the prosecutor emailed defense counsel and said that she thought Creighton had information that would be helpful to law enforcement. She included a proffer letter and added that she would be asking for “management” permission to file notice of a 21 U.S.C. § 851 enhancement. After getting permission, she emailed again asking for Creighton’s cooperation and/or guilty plea. Creighton went to trial, lost and was sentenced to a mandatory life prison term. On appeal he argued the prosecutor filed the enhancement out of vindictiveness. The panel disagreed. It said Creighton could not show actual or the realistic likelihood of vindictiveness. Here, the prosecutor presented Creighton with the “unpleasant alternatives” of pleading guilty and cooperating or facing charges on which he was plainly subject to prosecution. The panel rules that in the course of plea discussions, a prosecutor may threaten to subject an accused to a sentencing enhancement if he does not cooperate, as long as he actually qualifies for the enhancement.