UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : No. 4:CR-05-0209-02

:

vs. :

:

DONTE BROOKS : (Judge Muir)

ORDER

June 30, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On January 26, 2006, Defendant Donte Brooks pled guilty to

one count of conspiracy to possess with intent to distribute

cocaine base (also known as crack cocaine) on May 18, 2005, in

violation of 21 U.S.C. § 846. A document entitled “Statement of

Facts in Support of Guilty Plea” was filed on January 26, 2006,

in connection with the parties’ plea agreement. Paragraph 23 of

that document states the following: “The parties agree and

stipulate that the amount of cocaine base, known as crack[,]

involved in this case is more than 5 grams and less than 20

grams.” (Statement of Facts in Support of Guilty Plea, p. 6, ¶23)

On April 19, 2006, U.S. Probation Officer Drew Thompson

provided us with Brooks’s pre-sentence report. Paragraph 17 of

the presentence report states that “[t]he offense involves 42.92

grams of crack cocaine ....” (Presentence Report, p. 6, ¶17)

Based on that drug quantity, Probation Officer Thompson

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determined Brooks’s Base Offense Level to be 30 and his advisory

guideline imprisonment range to be 87 to 108 months. Brooks has

filed objections to the presentence report.

A presentence conference was held on April 24, 2006. During

the conference counsel and the court discussed, inter alia, 1)

the inconsistent drug quantities set forth in the parties’

stipulation and the presentence report, and 2) Brooks’s

objections to the presentence report. With respect to the former

matter, we specifically requested the parties to brief the issue

of whether the Probation Officer is bound by a stipulation of the

parties as to the existence of a certain fact. On April 25,

2006, we issued an order in which we set briefing schedules on

all of the subjects addressed at the presentence conference.

On May 16, 2006, the government filed its brief concerning

the issue of whether the Probation Officer is bound by the

parties’ stipulation. Brooks filed his responsive brief on May

25, 2006. The time allowed for the government to file a reply

brief expired on June 12, 2006, and to this date no such brief

has been filed. We withheld ruling on that matter pending

briefing on Brooks’s objections to the presentence report so that

we could issue one order resolving all of the issues relating to

Brooks’s presentence report.

Brooks filed a brief in support of his objections to the

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presentence report on May 16, 2006. After being granted an

extension of time in which to do so, the government timely filed

its opposition brief on June 16, 2006. Brooks filed his reply

brief on June 28, 2006. 

The issue of whether the Probation Officer is bound by the

parties’ stipulation concerning drug quantity and Brooks’s

objections to the presentence report are ripe for disposition. 

We will address all of those matters in this order.

The threshold question is whether the drug quantity to be

used in determining Brooks’s Base Offense Level is the amount

agreed upon by the parties in their stipulation, or the amount

found by the Probation Officer in his report. As discussed more

thoroughly below, an inherently related issue is whether Brooks

is entitled to any relief if we do not adopt the stipulation. If

we apply the parties’ stipulation, then Brooks’s Base Offense

Level is 26. The drug quantity reflected in the presentence

report yields a Base Offense Level of 30.

The United States Court of Appeals for the Third Circuit

considered a very similar factual scenario in the case of United

States v. Torres, 926 F.2d 321 (3d Cir. 1991). In Torres the

parties stipulated that the defendant was responsible for 198

grams of cocaine. However, an additional kilogram of cocaine had

been found in the automobile in which the defendant had been

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riding when he was arrested. During the guilty plea colloquy the

following exchange occurred:

U.S. Attorney: [T]he amount [of] cocaine for the applicable 

 sentencing guidelines range is 100 and, 100

to 200 grams.

The Court: The information alleges 198.

U.S. Attorney: That’s right.

The Court: 198. That binds it.

U.S. Attorney: I anticipate that would be the amount for

sentencing.

Id. at 325. Despite the parties’ stipulation, the Probation

Officer considered the additional kilogram of cocaine in

determining the defendant’s guideline imprisonment range. Both

parties objected to the court’s consideration of the additional

kilogram. The district court overruled the parties’ objections,

denied the defendants’ motion to withdraw his guilty plea because

the additional cocaine would be attributed to him for sentencing

purposes, and considered the additional kilogram in sentencing

the defendant.

The Court of Appeals for the Third Circuit reversed the

district court holding that although the Probation Officer and

the court are not bound by a stipulation reached by the parties,

and that when the court rejects such a stipulation the defendant

may be entitled to withdraw his guilty plea. In our view the

fundamental concept underlying Torres relates to a defendant’s

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entitlement to withdraw his guilty plea “when a plea bargain has

been frustrated for various reasons.” Id. at 327. 

The critical facts in Torres centered on the court’s

representation during the guilty plea colloquy that the 198 grams

alleged in the information “binds it.” Id. The Court of Appeals

for the Third Circuit reasoned that the district court’s

statement was not sufficiently clear to advise the defendant that

a greater drug quantity could subsequently be used to determine

the sentencing guidelines.

In the instant case, the government and Brooks agree that

the reasoning and holding in Torres apply here indicating that we

should either 1) apply the drug quantity to which the parties

have stipulated, or 2) if the stipulation is rejected in favor of

the greater drug quantity set forth in the presentence report,

provide Brooks with an opportunity to withdraw his guilty plea. 

During the prosecution of this case a substitution of

government counsel occurred during plea negotiations with Brooks. 

Although one Assistant United States Attorney initially handled

the matter, a second Assistant United States Attorney negotiated

with Brooks in the course of reaching a plea agreement. The

negotiations conducted by the latter Assistant United States

Attorney appear to have been based on the amount of drugs set

forth in the parties’ stipulation. The parties negotiated in

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good faith with that drug quantity in mind. Although the

information relied upon by the Probation Officer to hold Brooks

responsible for the greater drug quantity was in the government’s

file, that information was apparently not considered by the

government or discussed with Brooks when the stipulation and plea

agreement were reached.

We are of the view that those unique circumstances bring

this case within the category of cases controlled by Torres. We

agree with the parties’ jointly-held position that Brooks is

entitled to the benefits of the plea agreement he entered into

with the government because of the representations made to him by

the Assistant United States Attorney during their plea

negotiations. When Brooks agreed to enter his guilty plea he had

every reason to believe that the quantity of drugs to be

considered for sentencing purposes would be more than 5 grams and

less than 200 grams of cocaine base. If the greater drug

quantity were to be considered, Torres would require us to

provide Brooks with an opportunity to withdraw his guilty plea.

For those reasons, we will proceed on the basis that the

quantity of crack attributable to Brooks is more than 5 grams and

less than 20 grams. In light of the adjustments presented by

Probation Officer Thompson in the presentence report, at this

point Brooks’s Base Offense Level is 26, his Total Offense Level

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is 25, and his advisory guideline imprisonment range is 57 to 71

months.

The specific adjustments in the presentence report include

1) an increase of two levels pursuant to U.S.S.G. § 2D1.1(b)(1)

for the recovery of a firearm registered to Brooks when he was

arrested with the crack cocaine, and 2) a decrease of three

levels pursuant to U.S.S.G. § 3E1.1(b) for acceptance of

responsibility. With those calculations as our baseline, we next

consider Brooks’s objections to his presentence report. Before

discussing the merits of those objections, we will set forth the

undisputed facts.

Brooks and his co-defendant Robinson are cousins. Brooks

admits having committed the instant offense. He joined the

conspiracy because Robinson offered to help Brooks with Brooks’s

financial difficulties. Brooks went on four trips from

Philadelphia to Williamsport for the purpose of transporting

drugs. Brooks earned no more than $2,000 for his role in the

offense. 

On May 16, 2005, Brooks and Robinson transported a quantity

of cocaine base from Philadelphia, Pennsylvania, to Williamsport,

Pennsylvania. On May 17, 2005, Robinson sold .32 grams of

cocaine base to a confidential informant at 700 Hepburn Street,

Williamsport, Pennsylvania (hereinafter “700 Hepburn Street”). 

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On May 18, 2005, Robinson sold .70 grams of cocaine base to a

confidential informant at 700 Hepburn Street.

On May 18, 2005, police officers executed a search warrant

at 700 Hepburn Street. When the police entered that residence,

Robinson was sitting on the bed in the bedroom of the residence. 

Alongside the bed next to Robinson was a pair of jeans. In the

pockets of those jeans were 1) $100 in prerecorded money used by

the confidential informant to make the controlled buy of cocaine

base on May 18, 2005, and 2) 12.7 grams of cocaine base. The

cocaine base in the jeans was in a clear package containing

numerous smaller individual packets for distribution.

When the police executed the warrant, Brooks was found

standing in a bathroom behind a door. In the ceiling of that

bathroom police found $704 in United States currency and 5.6

grams of cocaine base. The cocaine base was packaged in a number

of small clear plastic bags contained within one larger clear

plastic bag.

Among the other items recovered from 700 Hepburn Street were

a Charter 2000 .38 caliber special revolver bearing serial number

14880, which was loaded with five rounds of .38 special

ammunition; and a silver colored .22 caliber revolver Model RG 23

bearing serial number 263301 and loaded with six rounds of .22

caliber ammunition. The former weapon was registered to Brooks. 

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Brooks had purchased the gun in Philadelphia. 

Those are the facts to apply in considering Brooks’s

objections to his presentence report. His first objection is

that the report fails to reflect “a reduction in his offense

level for his mitigating role in the offense pursuant to U.S.S.G.

§ 3B1.2.” (Brief in Support of Objections, p. 5) Brooks supports

this objection by arguing that 

[i]n this case, Donte Brooks’s cousin, Darien Robinson[,]

and his cousin’s father, Charles Robinson, were already

heavily involved in a drug distribution business in

Williamsport. Because Donte Brooks needed money to move, he

briefly worked for Darien Robinson. Donte Brooks made a

total of four trips. ... Brooks also on occasion assisted

Robinson package the drugs and service[] Robinson’s

customers for him. In connection with the four trips,

Brooks was in Williamsport for a total of slightly more than

two weeks. In fact, this is the only period in his entire

life that Brooks had been in Williamsport and he has no

intention ever of returning. Donte Brooks was plainly the

least culpable of those involved in the drug distribution

and clearly is less culpable than Darien and Charles

Robinson.

(Brief in Support of Objections, pp. 6-7) 

In order to understand Brooks’s role in the offense, one has

to place that role in context by understanding the specific

“offense” at issue. The superseding information to which Brooks

has pled guilty charges him with one count of conspiracy to

possess with the intent to distribute cocaine base. The “Manner

and Means” portion of the superceding information states that

“[o]n or about the 18th day of May, 2005, in Williamsport, PA,

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DONTE BROOKS, possessed crack with the intent to distribute

same.” (Superseding Information, p. 2)

Brooks’s argument would be more persuasive if the “offense”

encompassed large quantities of drugs distributed over a lengthy

period of time in numerous transactions. However, this case does

not involve such an offense. The “offense” set forth in the

superseding information is limited to a single day, May 18, 2005. 

On that date Brooks was arrested in a residence with, inter

alia, Robinson, a quantity of cocaine base packaged for

distribution, large amounts of cash (including the prerecorded

bills used for a controlled purchase of drugs), and weapons. 

Based strictly on his admissions concerning his involvement,

Brooks’s role in that offense is, as stated by the Probation

Officer, commensurate with that of his co-defendant Robinson. We

will overrule Brooks’s first objection to the presentence report.

Brooks’s next objection is that he should not receive a twolevel enhancement for possession of a firearm pursuant to

U.S.S.G. § 2D1.1(b)(1). The cited guideline provides that a

defendant’s Base Offense Level should be increased two levels

“[i]f a dangerous weapon (including a firearm) was possessed,

....” Id. Application note 3 in the “Commentary” section to that

guideline further explains that 

[t]he enhancement for weapon possession reflects the

increased danger of violence when drug traffickers possess

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weapons. The adjustment should be applied if the weapon was

present, unless it is clearly improbable that the weapon was

connected with the offense. For example, the enhancement

would not be applied if the defendant, arrested at his

residence, had an unloaded hunting rifle in the closet.

U.S.S.G. § 2D1.1, Application Note 3. 

The government bears the burden of proof to establish that

the enhancement set forth in U.S.S.G. § 2D1.1(b)(1) applies. See

United States v. Goggins, 99 F.3d 116, 119 (3d Cir. 1996)(noting

that “the burden of proof to impose an enhancement under section

2D1.1(b)(1) is less than the burden for a conviction under

section 924(c)(1)”); Davenport v. United States, 2005 WL 2148567,

*4 (D. Del. September 7, 2005)(commenting that the government

“had carried its burden of proof and [the court] imposed the two

level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1)”). While

Brooks concedes that he possessed the gun, he contends that the

government has failed to establish a sufficient nexus between the

gun and the drug offense.

Brooks cites the case of United States v. Pitts, 3 F. Supp.

2d 637 (E.D. Pa. 1998)(Brody, J.), in support of his position. 

In that case the defendant was arrested immediately after an

individual under surveillance purchased drugs from the defendant. 

The car which the defendant had been driving, and in which the

drug transaction had occurred, was seized and later searched. 

The defendant did not own the automobile. A handgun, which was

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in no way linked to the defendant, was found under the carpet of

the driver’s area in the car. The defendant’s only connection to

the gun was that he lived in a house with the gun’s owner. The

court in Pitts stated that “[t]he instant case turns on the

threshold issue of possession.” Id. at 640.

Those facts and analysis in Pitts are drastically different

from the circumstances of Brooks’s situation. First and

foremost, Brooks admits that he possessed the gun. (Brief in

Support of Objections, p. 8)(“Donte Brooks concedes he possessed

a firearm ....”)

Brooks contends that no link between the weapon and the drug

offense exists because of the following factors: 1) he purchased

the weapon four years before the instant offense; 2) he legally

owned the firearm; 3) he lived in a dangerous section of

Philadelphia and purchased it “solely for his own protection”

(Brief in Support of Objections, p. 8); and 4) he did not want to

leave the firearm at his mother’s residence while he was in

Williamsport. For the purposes of this order, we will accept all

of those representations as true. However, they collectively

fail to disconnect the weapon from Brooks’s instant offense. 

The handgun in question is registered to Brooks and it was

found in a bedroom occupied by Robinson. Both Robinson and

Brooks possessed cocaine base when they were arrested. A second

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weapon was also found in the residence, and both of the weapons

were loaded.

The critical factors in our view are that the weapon

registered to Brooks was easily accessible to the co-defendants,

an additional weapon was found, and both weapons were loaded. 

Brooks’s representation that he purchased the weapon “solely for

his own protection” is entirely consistent with the conclusion

that the protection (in the form of the gun) was necessary when

trafficking in drugs. Brooks surely did not need to be protected

from a dangerous Philadelphia neighborhood while residing at 700

Hepburn Street. 

The totality of the undisputed facts establish a sufficient

nexus between the weapon at issue and the offense to apply the

enhancement set forth in U.S.S.G. § 2D1.1. We will overrule his

second objection to the presentence report.

Brooks’s next objection is that the presentence report fails

to provide for “a two level decrease in his offense level because

he meets the criteria set forth in U.S.S.G. § 5C1.2, known as the

safety valve.” (Brief in Support of Objections, p. 9) The safety

valve provisions authorize a court to depart downwards when the

following five criteria are met:

1. the defendant does not have more than 1 criminal history

point;

2. the defendant did not use violence or credible threats

of violence or possess a firearm or other dangerous weapon

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in connection with the offense; 

3. the offense did not result in death or serious bodily

injury to any person;

4. the defendant was not an organizer, leader, manager, or

supervisor of others in the offense, and;

5. the defendant has provided truthful information

concerning the offense conduct.

U.S.S.G. § 5C1.2, 18 U.S.C. § 3553(f). The only element in

contention here relates to whether Brooks “possess[ed] a firearm

... in connection with the offense.” 

Under these circumstances, the burden of proof is on Brooks

“to establish [by a preponderance of the evidence] that he ...

did not possess a firearm in connection with the offense.” United

States v. Wilson, 106 F.3d 1140 (3d Cir. 1997); United States v.

Herrera, ___ F.3d ___, 2006 WL 1174141, *4 n.5 (2d Cir. May 2,

2006)(“for purposes of [the safety valve] we look to the

defendant's own conduct in determining whether the defendant has

established by a preponderance of the evidence that the weapon

was not possessed in connection with the offense”)(quoting United

States v. Zavalza-Rodriguez, 379 F.3d 1182, 1188 (10th Cir.

2004)).

Brooks relies on the same arguments here that he made in

connection with the two-level enhancement discussed above for

possession of the weapon. In addition, Brooks contends that our

disposition of his downward departure motion is controlled by the

case of United States v. Hernandez, 187 F.3d 806 (8th Cir. 1999),

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See Hernandez, 187 F.3d at 808 (“Proving that a defendant

should receive a two-level enhancement for possession of a weapon

in connection with a drug trafficking offense requires the

government to show by a preponderance of the evidence that the

defendant possessed a dangerous weapon and that it was not

clearly improbable that the weapon had a connection to the

criminal activity. See United States v. Rogers, 150 F.3d 851, 857

(8th Cir.1998), cert. denied,525 U.S. 1113, 119 S.Ct. 888, 142

L.Ed.2d 787 (1999). The government must make a similar showing in

order to defeat a defendant's claim of entitlement to the safety

valve provision. See United States v. Burke, 91 F.3d 1052, 1053

(8th Cir.1996).”)(Emphasis added).

15

in which the United States Court of Appeals for the Eighth

Circuit held that a defendant was entitled to the safety valve

provisions although he had possessed a shotgun in the cab of his

truck while hauling marijuana in the trailer.

We decline Brooks’s invitation to follow the holding of

United States v. Hernandez, 187 F.3d 806 (8th Cir. 1999), for two

reasons. First and foremost both the district court and court of

appeals proceeded in that case under the false impression that

the government bore the burden of proof with respect to

establishing the prerequisites of the safety valve provisions.1

In addition, when compared with the circumstances in Hernandez,

the weapon at issue in this case was possessed by Brooks in much

closer proximity to the cocaine being distributed. That

circumstance appears to have been significant in the courts’

analysis in Hernandez. 

Based on the totality of the circumstances presented to us,

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Brooks has failed to establish by a preponderance of the evidence

that he did not possess the handgun in connection with the drug

offense. The facts of record do not qualify Brooks for the

benefits of the safety valve provisions. We will overrule

Brooks’s third objection to the presentence report.

Brooks’s fourth and final objection is that his “offense

level overstates the seriousness of the offense[,] warranting a

downward departure.” (Brief in Support of Objections, p. 13) 

Brooks contends that “[a] downward departure is warranted to an

offense level which takes into consideration the amount of drugs

the parties agreed was involved in this case, Brooks’s mitigating

role in the offense and his legal possession of a firearm for his

protection.” (Id., p. 14)

This so-called “objection” is more accurately described as a

combination of Brooks’s other arguments for downward adjustments,

which we have already addressed. By setting Brooks’s Base

Offense Level to 26 to reflect the parties’ stipulation, we have

provided Brooks with all of the relief to which he is entitled. 

His other contentions have no merit, regardless of whether they

are framed as requests for adjustments or a motion for downward

departure. Brooks’s final objection is overruled. To the extent

that his final argument is considered to be a motion for a

downward departure, the motion is denied.

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To summarize, other than the Base Offense Level, all of

Probation Officer Thompson’s findings and determinations set

forth in the presentence report are adopted. Brooks’s Total

Offense Level is 25, and his advisory Guideline Imprisonment

Range is 57 to 71 months.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Brooks’s objections to the presentence report are

overruled.

2. Brooks’s Total Offense Level is 25, and his advisory

Guideline Imprisonment Range is 57 to 71 months.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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