Of the Northern District of Florida, sitting by designation. *

Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-1814

UNITED STATES OF AMERICA,

Appellee,

v.

DONNELL A. JENKINS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

 Lynch, Chief Judge,

 Torruella, Circuit Judge, 

and Stafford, Senior District Judge. *

Robert C. Andrews, with whom Robert C. Andrews Esquire P.C.

was on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Robert Clark Corrente, United States Attorney, and Sandra R.

Beckner, Assistant United States Attorney, were on brief, for

appellee.

July 18, 2008
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Stafford, Senior District Judge. Donnell A. Jenkins

("Defendant") appeals from his sentence on a plea of guilty to two

counts of distributing cocaine base. We affirm.

I. BACKGROUND

Soon after Defendant was indicted on two counts of

distributing crack cocaine, the government offered Defendant a

written plea agreement. Under the terms of that agreement,

Defendant was required to (1) stipulate that he was a career

offender; (2) seek neither a downward departure under the

Sentencing Guidelines nor a sentence below the Guidelines range;

(3) refrain from moving to vacate his prior convictions; and (4)

waive his right to file a direct appeal, provided the district

court imposed a sentence within or below the applicable Guidelines

range. In exchange for Defendant's plea, the government was

required to (1) recommend a three-level reduction for acceptance of

responsibility; (2) recommend a term of imprisonment at the lowest

point of the applicable Guidelines range; and (3) refrain from

filing a sentencing enhancement information under 21 U.S.C. § 851

stating Defendant's prior felony drug convictions. The plea

agreement further provided that "if the government were to file the

sentencing enhancement [information], pursuant to U.S.S.G. § 4B1.1,

the Defendant would face a higher guidelines range."

Defendant rejected the government's plea offer.

Thereafter, the government filed a section 851 information based on
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Defendant's prior felony drug convictions, and Defendant pleaded

guilty—without benefit of a plea agreement—to two counts of

distributing crack cocaine. Before sentencing, Defendant filed

motions seeking (1) a one-level downward departure in his criminal

history category based on the purported overstatement of the

seriousness of his criminal record; and (2) a downward variance in

the advisory Guidelines range pursuant to 18 U.S.C. § 3553.

Defendant acknowledged that his probation officer "correctly

compiled [his] record and assigned points as prescribed by the

guidelines as well [as] assigning the career offender designation."

At sentencing, the district court denied Defendant's

request for a downward departure in his criminal history category.

While recognizing that it had the authority to grant such a

departure for over-representation of criminal history, the district

court declined to do so, specifically stating that "I think the

defendant's criminal history actually is accurately reflected

here." The district court nonetheless determined that "a sentence

below the advisory guideline range but above the mandatory minimum

is an appropriate sentence to satisfy all of the requirements of

section 3553." Defendant was accordingly sentenced to a term of

imprisonment of 200 months, 62 months below the bottom of the

advisory Guidelines range. Defendant thereafter filed this appeal.

II. PROSECUTORIAL VINDICTIVENESS

Defendant first argues that the government's decision to
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file a section 851 information was motivated by prosecutorial

vindictiveness. According to Defendant, the government sought to

penalize Defendant for refusing to accept a plea offer requiring

Defendant to waive his right to appeal his sentence. Because

Defendant failed to raise this issue in the district court, we

review for plain error. To vacate Defendant's sentence for plain

error, we must find that (1) there was error; (2) the error was

plain and obvious; (3) the error affected Defendant's substantial

rights; and (4) the error impaired the fairness, integrity, or

public reputation of the judicial proceedings. United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

A vindictive prosecution—one in which the prosecutor

seeks to punish the defendant for exercising a protected statutory

or constitutional right—violates a defendant's Fifth Amendment

right to due process. United States v. Goodwin, 457 U.S. 368, 372

(1982). A defendant may establish a vindictive prosecution either

(1) by producing evidence of actual vindictiveness or (2) by

demonstrating circumstances that reveal a sufficient likelihood of

vindictiveness to warrant a presumption of vindictiveness. United

States v. Marrapese, 826 F.2d 145, 147 (1st Cir. 1987) (citing

Goodwin, 457 U.S. at 376). If a defendant raises a presumption of

vindictiveness, the prosecutor may rebut the presumption by showing

objective reasons for its charges.

In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the
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Supreme Court considered an allegation of prosecutorial

vindictiveness arising from unsuccessful plea negotiations. The

prosecutor in that case had explicitly told the defendant that if

he did not plead guilty and "save the court the inconvenience and

necessity of a trial," id. at 359 n.1, he (the prosecutor) would

return to the grand jury to seek an additional charge under the

state habitual offender statute, a charge that would increase

significantly the defendant's potential punishment. The defendant

refused to plead guilty, and the prosecutor made good his threat to

add habitual criminal offender charges. On review, the Supreme

Court held that the Due Process Clause of the Fourteenth Amendment

did not prohibit a prosecutor from carrying out a threat made

during plea negotiations to bring additional charges against an

accused who refused to plead guilty to the offense with which he

was originally charged.

In finding no due process violation in Bordenkircher, the

Supreme Court distinguished its decisions in North Carolina v.

Pearce, 395 U.S. 711, 725 (1969) (applying a presumption of

vindictiveness where the trial judge, on retrial, imposed a more

severe sentence upon the defendant who successfully attacked his

initial conviction on appeal) and Blackledge v. Perry, 417 U.S. 21,

28 (1974) (applying a presumption of vindictiveness where the

prosecutor reindicted — on a felony charge — a defendant originally

convicted of a misdemeanor after the defendant successfully
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exercised his right to appeal the misdemeanor charge). The Court

stressed that, in Pearce and Perry, it was dealing with the state's

unilateral imposition of a penalty upon a defendant who exercised

a legal right to appeal his original conviction, "a situation very

different from the give-and-take negotiation common in plea

bargaining between the prosecution and defense." Bordenkircher,

434 U.S. at 363 (internal quotation marks and citation omitted).

The Court explained that in the give-and-take of plea bargaining,

"there is no such element of punishment or retaliation so long as

the accused is free to accept or reject the prosecution's offer."

Id. In distinguishing the post-appeal posture of the Pearce and

Perry cases from the pre-trial posture of Bordenkircher, the Court

stated: "[T]he due process violation in cases such as Pearce and

Perry lay not in the possibility that a defendant might be deterred

from the exercise of a legal right, but rather in the danger that

the State might be retaliating against the accused for lawfully

attacking his conviction." Id. (citations omitted); see also

Goodwin, 457 U.S. at 384 (finding that a presumption of

vindictiveness was not warranted where the prosecutor modified the

charges against the defendant after the defendant refused to plead

guilty); United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006)

(explaining that the "presumption of vindictiveness does not apply

to pretrial decisions by the prosecution because '[a] prosecutor

should remain free before trial to exercise the broad discretion
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entrusted to him to determine the extent of the societal interest

in prosecution'") (quoting Goodwin, 457 U.S. at 382); United States

v. Perry, 335 F.3d 316, 324 (4th Cir. 2003) (noting that "a

presumption of prosecutorial vindictiveness is generally warranted

only in a post-conviction setting, such as when a defendant

successfully attacks his conviction on appeal, and then receives a

harsher sentence on retrial").

Here, as in Bordenkircher, the prosecutor tried to induce

a plea by agreeing to lenient treatment for the defendant. In

Bordenkircher, the prosecutor agreed, as part of his plea offer, to

refrain from seeking the return of additional charges under the

state career offender statute, charges that were undisputedly

supported by the facts. Here, the prosecutor agreed, as part of

his plea offer, to refrain from filing a section 851 enhancement

information, an information that was undisputedly supported by the

facts. In both cases, the plea negotiations were unsuccessful, and

the defendants faced higher penalties as a result. In neither case

was a presumption of vindictiveness warranted. See Cooper, 461

F.3d at 856 (finding no prosecutorial vindictiveness where the

prosecutor filed a section 851 enhancement information during the

time it was trying to induce the defendant to plead guilty); United

States v. Cooks, 52 F.3d 101, 106 (5th Cir. 1995) (recognizing that

there was no presumption of prosecutorial vindictiveness where the

government filed a section 851 enhancement notice after the
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defendant withdrew his guilty plea that would have waived the

government's discretionary right to seek enhanced penalties). 

Defendant contends that the inclusion of an appellate

waiver provision in the prosecutor's plea offer makes his case more

like Pearce and Perry and less like Bordenkircher. We disagree.

Like the right to trial, the right to file a direct appeal is a

right that may be waived by a defendant through the plea bargaining

process. See, e.g., United States v. Teeter, 257 F.3d 14, 23 (1st

Cir. 2001) (holding that presentence waivers of appellate rights

are valid). Indeed, waiver of the right to appeal represents just

another bargaining chip in the plea bargaining process, a process

that "flows from the mutuality of advantage to defendants and

prosecutors, each with his own reasons for wanting to avoid trial

and/or appeal." Bordenkircher, 434 U.S. at 363 (internal quotation

marks and citation omitted). In Bordenkircher, waiver of the right

to trial was the bargaining chip at issue. Here, the bargaining

chips included both waiver of the right to appeal and waiver of the

right to trial. That an additional bargaining chip was on the

table, however, does not change the fact that, under Bordenkircher

and its progeny, a presumption of vindictiveness is not warranted

under the circumstances presented here.

According to Defendant, the government "is not able to

show any objective reason for filing the 851 notice." To the

extent Defendant is suggesting that the government engaged in
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actual vindictiveness based on the purported absence of "any

objective reason for filing the section 851 notice," his suggestion

is meritless. Defendant does not dispute the factual basis for the

section 851 information; indeed, he admits to the prior

convictions. It thus defies common sense to say that the

government had no "objective reason" for filing the section 851

information. Defendant, moreover, has presented no other evidence

or argument that would support a finding of actual vindictiveness.

Defendant having failed to establish either actual or

presumed prosecutorial vindictiveness, we find no error, much less

plain or obvious error, that would require upsetting the district

court's judgment.

III. REASONABLENESS OF SENTENCE

Defendant asks that his case be remanded to the district

court for resentencing in light of the recent Supreme Court

decisions in Rita v. United States, 127 S. Ct. 2456 (2007); Gall v.

United States, 128 S. Ct. 586 (2007); and Kimbrough v. United

States, 128 S. Ct. 558 (2007). See Rita, 127 S. Ct. at 2459

(holding that a federal appellate court may apply a presumption of

reasonableness to a district court's sentence); Gall, 128 S. Ct. at

591 (holding that a federal appellate court "must review all

sentences—whether inside, just outside, or significantly outside

the Guidelines range—under a deferential abuse-of-discretion

standard"); Kimbrough, 128 S. Ct. 558, 564 (holding that district
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courts are free to consider, as part of their analysis of the

sentencing factors set forth in 18 U.S.C. § 3553(a), the 100:1

crack cocaine to powder cocaine ratio used by the Sentencing

Commission in setting sentencing ranges under the Guidelines).

According to Defendant, the net result of Rita, Gall, and Kimbrough

is a "significantly expanded sentencing discretion." Defendant

suggests that, contrary to these recent decisions, the district

judge must have thought he was constrained by the Guidelines,

causing him to impose a harsher sentence than he would have imposed

had he had the benefit of Rita, Gall, and Kimbrough at the time of

sentencing.

We review the district court's sentence for

reasonableness under a "deferential abuse-of-discretion standard."

Gall, 128 S. Ct. at 594-95.

Initially, we note that, of the three decisions cited by

Defendant, only Kimbrough addresses a district court's decisionmaking. Rita and Gall are directed to the decision-making of an

appellate court. Defendant, moreover, failed to preserve a

Kimbrough disparity issue by not asking the district court to

consider the 100:1 disparity between crack and powder cocaine and

by not objecting to the district court's sentence on the basis of

that disparity. Furthermore, there is no indication that the

district court would have sentenced Jenkins more leniently if he

had raised the issue. See United States v. Matos, F.3d ,
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No. 07-1459, 2008 WL 2687385, *1 (1st Cir. July 10, 2008) (holding

that, to establish plain error in a Kimbrough context, a defendant

must demonstrate a probability that he would have received a more

lenient sentence had the district court considered the crack to

powder disparity at sentencing).

Indeed, the record belies Defendant's assertion that the

district court must have felt "constrained" by the Guidelines. In

fact, the district court explicitly explained that, while it had

the authority to depart downward for over-representation of

criminal history, it declined to do so based on Defendant's record,

a record that "far exceed[ed] the threshold of category 6." The

district court nonetheless imposed a sentence that was more than

five years below the bottom of the Guidelines range. Any

suggestion here that the district court might impose an even lower

sentence if the case were remanded is fanciful. The record amply

establishes that the district court very carefully considered all

of the requisite sentencing factors, then imposed a sentence that

balanced Defendant's history as a gross recidivist against his

history as a low-level, non-violent drug offender. We are

convinced that the sentence imposed upon Defendant was reasonable,

that the district court adequately explained its reasons for that

sentence, and that the district court in no way abused its

discretion during the sentencing process.
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IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

sentence. We REMAND the case to the district court where Defendant

may file, if he wishes, a motion for reduction in sentence pursuant

to the recent Guidelines amendment that lowers the sentencing range

for certain categories of offenses involving crack cocaine.

U.S.S.G. Amend. 706.