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United States v. Cluff

United States Court of Appeals, Fifth Circuit

May 18, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
CURTIS JAMES CLUFF, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, and HAYNES, Circuit Judges, and JUNELL, District Judge. [*]

          JUNELL, District Judge.

         Curtis Cluff pleaded guilty to conspiracy to possess with intent to distribute cocaine under 21 U.S.C. §§ 841, 846, and was sentenced to 99 months' imprisonment and 5 years of supervised release. Following his sentence, Cluff filed a motion for new trial, alleging the Government breached the plea agreement. The district court denied the motion and Cluff appealed. We AFFIRM.

         I.

         In October 2014, Curtis Cluff was charged in a two-count indictment with conspiracy to possess with intent to distribute cocaine under 21 U.S.C. §§ 841, 846, and aiding and abetting bulk cash smuggling under 31 U.S.C. § 5332 and 18 U.S.C. § 2. The events giving rise to those charges occurred in 2011; however, Cluff entered into an agreement with the Government in January 2012 to work as a confidential informant. The Government states the agreement provided that as long as he was working for the Government, he would not be prosecuted. Cluff continued working in this capacity until March 2014 when he was hospitalized after being shot by a police officer who was the subject of an investigation in which Cluff was assisting.

         In March 2015, Cluff moved to dismiss the indictment based on the doctrine of equitable immunity. Therein, Cluff stated he believed that as long as he cooperated with law enforcement, he would not be prosecuted at all.[1] He also explained the only reason he ceased working as an informant was because all contact with his supervising agents ceased after he was shot. The Government filed a response in opposition to Cluff's motion, acknowledging that they had approached Cluff to be an informant, but denying any promise or representation had been made by a law enforcement officer or prosecutor that he would not be charged. Cluff was informed he would ultimately be charged once his cooperation was complete.

         Upon the district court's denial of the motion to dismiss, Cluff pleaded guilty to count one-conspiracy to possess with intent to distribute cocaine- and entered into a plea agreement with the Government. The agreement provided that the Government would move to dismiss count two; recommend a two-level downward adjustment for acceptance of responsibility "should the defendant accept responsibility as contemplated by the Sentencing Guidelines"; recommend an additional one-level reduction based on the timeliness of his plea; recommend he only be held accountable for 65.32 kilograms of cocaine; not seek a money judgment forfeiture; and recommend he receive the benefits of the safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, if eligible. In addition, the Government indicated it may file a motion for departure under U.S.S.G. § 5K1.1 as a result of Cluff's cooperation. At the plea hearing, Cluff acknowledged that the terms of the plea agreement were correct, no other promises had been made to induce him to plead guilty, and he understood the terms of the plea agreement.

         The Presentence Investigation Report (PSR) assessed a base offense level of 38 upon finding that Cluff was responsible for 615 kilograms of cocaine. The probation officer also recommended a four-level enhancement based on Cluff's role as an organizer or leader, which resulted in a total offense level of 42. With an offense level of 42 and a criminal history category of I, his guideline range for imprisonment was 360 months to life.

         Cluff objected to the PSR to the extent it did not conform to the plea agreement. He objected to the amount of cocaine as well as the leadership enhancement and sought a reduction for acceptance of responsibility and application of the safety valve provision. The Government filed a response, recommending Cluff be given safety valve and that he be held accountable for only 65.32 kilograms of cocaine, as agreed in the plea agreement. The Government also contested the leadership enhancement. Subsequently, the Government filed a motion for sentence reduction pursuant to § 5K1.1 and recommended Cluff receive a three-level reduction for acceptance of responsibility, which would result in a recommended guideline range of 46 to 57 months' imprisonment.

         II.

         At the sentencing hearing on December 1, 2015, Cluff accepted responsibility for his actions. He then explained to the court that he became an informant based on his understanding that he had entered into an agreement with the DEA agents that if he worked for the Government, he would not be charged at all. Assistant United States Attorney (AUSA) Ralph Imperato denied ever having made such a promise, explaining that Cluff was told he would go to prison, but the amount of time he would serve was dependent upon his level of cooperation. The district judge asked Cluff who had made him this alleged promise, to which he replied with "Mr. Imperato." Again, AUSA Imperato denied Cluff's statement, accused him of lying to the court, and asked the court to allow him to withdraw his guilty plea. Instead, the district court recessed the hearing to give the parties time to resolve the issue.

         The day before the second sentencing hearing, the Government filed a modified motion for sentence reduction. The motion alleged that Cluff made false statements under oath at the December 1 hearing and, therefore, he did not accept responsibility as contemplated by the Sentencing Guidelines, as was required by the plea agreement. The Government then withdrew its previous recommendation concerning acceptance of responsibility and recommended he be given a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.[2]However, given Cluff's substantial assistance as an informant, the Government recommended a downward departure under § 5K1.1.

         The parties reconvened before the court on December 22, 2015. Again, Cluff accepted responsibility. In addition, he stated that if he misconstrued or misunderstood the agreement, he wanted to apologize to AUSA Imperato. At the conclusion of the hearing, the district court sentenced him to 99 months of imprisonment followed by 5 years of supervised release. In so ruling, the court declined to grant Cluff a reduction for acceptance of responsibility. Instead, the court imposed an additional two points for obstruction of justice but reduced his sentence by granting the Government's motion for a § 5K1.1 departure.

         Cluff then filed a timely motion for new trial, arguing the Government breached the plea agreement by recommending that the court deny acceptance of responsibility and impose a two-level increase for obstruction of justice. After a hearing, the district court denied Cluff's motion for new trial, reasoning that he had made a materially false statement at the December 1, 2015 hearing.[3] Accordingly, the court found the Government was not obligated to recommend a downward adjustment for acceptance of responsibility and, thus, did not breach the plea agreement.

         III.

         As a preliminary matter, the Government argues this appeal should be dismissed as a result of the appellate waiver in the plea agreement. However, the appeal may proceed notwithstanding the waiver. See United States v. Purser, 747 F.3d 284, 289 (5th Cir. 2014) (stating a claim for breach of a plea agreement may be raised despite the waiver ...


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