* The Honorable James G. Carr, United States Di st rict Judge for the Northern District of

Ohio, sitting by designation.

NOT RECOM

MENDED F OR FULL-T EXT PUBL ICATION File Name: 04a0024n.06 Filed: October 13, 2004 Nos. 03-5943, 03-5490 UNITED STATES COURT OF APPEALS FOR THE SI

XTH CIRC UIT UNITED STATES OF AMERICA, Plaintiff -Appellee,
v. TI MOTH Y LAMONT D OBBINS an d TIMOTHY WELLS, Defendan ts-Appellan

ts. )

) ) ) ) ) ) ) ) ) ON APPEAL F ROM THE U NIT E D STATES DISTRICT CO U RT FOR THE WESTERN DISTRICT OF KENTUCKY

Before: GU

Y and SUTT ON, Circui

t Judges; CA

RR, Distri ct Judge. * SUTTON, Circuit Judge . T he defendants in this case are Timothy Dobbins and Timothy Wells, half-broth ers and conv icted co-par

ticipants in a Christma s Day robbe ry. Wells, who pleade d guilty at trial and ad

mits his pa

rticipation i

n the robber

y, challeng es only his sentence. Dobbins contests the introduction of evidenc e result ing from a “no-knock” police entry , the police’ s alleged failureto turn over po tentially e xculpatory material an

d his sentence. Because

the district c ourt correct ly rejec ted each o f these cl aims, we affi rm.Nos. 03-5943, 03-5490

United Stat

es v. Dobbi

ns, United S

tates v. Wells

- 2 - I. Around midnight of Decem

ber 25, 2001, aman entered the British Petroleum gas station on Chamberl ain

Lane in Louisvil le, Kentuck y, and asked

to use the restroom. The key to the restroom had been los t earlier that

evening and

the lone stor

e clerk, takin

g custome

r service to a

new level, attempted to break into

the restroom

for the ma

n . The clerk’ s good deed, however, did not go unpunished. The man, it

turns out, w as there to “p eep the scen e”—to ensur e, in other w ords, that the coast was clear before a robbery. JA 297. As the man asked the store clerk “goofy questions” and acted as though he were drunk, two other men ent ered the stor e, threatene d the store cl erk with fir earms and

demanded

money. JA 226–27. One of the a ssailants pr oceeded to take about $400 from the cash registers and cash box and to fire his g

un into the s afe behind

the counter i

n an att empt to ope n it. At the sound of the gunshots, the first m

an to enter th e store darte d outside. The other two men then went to

the back of the store and removed the surveillance videotape and stole cigaret tes and the receivers to t h e phones, be fore leavin

g the scene.
Inthe investigation that f ollowed, several pieces of evidence indicated that Timothy Dobbins, Timothy W

ells and an in

dividual na

med Jerry K

elty had com

mitted the

robbery. Fi

rst, suspecting that one of the perp etrators had returned to t

he store the f

ollowing da

y and had discussed the robbery wh

ile posing as

a police off

icer, the store clerk wat

ched the su

rveillance tape fromNos. 03-5943, 03-5490

United Stat

es v. Dobbi

ns, United S

tates v. Wells

- 3 - December

26 and ident

ified an individual who appeared on it as the gun w ielder. Tha

t individual , the police de

termined, was Dobbin s. Second, a contact inf

ormed the police that Kelty

had participated in the robbery. When the police questioned Kelty, he confessed to driving the getaway car for the robbery but insisted that he
was an unwittin

g accompl ice who was

not otherwi se involved

in the crime. He claimed to know his accomplic es only by their nicknames, “Loco” and “Bird.” JA 244–46. After the crime, he added, the three partici

pants fled t

o the residen

ce of a form

er Jeffers on County p olice offi cer named Kevin Richardson , where they

watched, then attempt

ed to destroy , the surveil lance tape. Based upon this ev

idence, the

police obtai

ned an arres t warrant for Kevin Richardson and
asearch warra

nt for his home. En routeto serve the warrant, police officers observed Richardson inan SUV. They stopped t he SUV, arr

ested Richa

rdson and pr

ocured the k

eys to his ho

use to facilitate the execution of the sea

rch warrant. Timothy W

ells was also

inthe car with Richardson. Uponquestionin

g, Wells a

dmitted his role in th e robbery an d implicat

ed both Kelt

y and Dobbi

ns. When the office rs arrived at R

ichardson’s

house, they

found the d

oor unlocke d

and entered. The detectiv e who first

entered the residence, Bryan Arnold, could not recall knock ing prior to h

is entry. (Arnold testified that he “announced police, search warrant and [ ] went on in” but could not “really recall” if he

knocked, s tating “I thin

k [we did] —I’m not su

re.”) JA 372. Inside , the police found Dobbins an

d the items

stolen from

the gas stati on. They al so recovered the remains of the December

25 surveill anc e tape, which they later w ere able part ially to reco nstruct. Ac cording toNos. 03-5943, 03-5490

United Stat

es v. Dobbi

ns, United S

tates v. Wells

- 4 - the police, Dob

bins at this p oint admit

ted to his involvement

in the robbe

ryand to his firing of

the weapon, bu

t Dobbins contests this a

dmission on appeal.
InFebruary 20 02, a grand j ury indicted Dobbins, W

ells and Kelty fortheir actions during the robbery. The indictme nt charged D obbins an d Wells with the sam e three coun

ts: robbery i

n violation of 18 U.S. C. § 1951(a ), the use of

a firearm during andin relation to

a crime of

violence in violation of

18 U.S.C. § 924(c) and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1 ) and 924(a) (2). At trial, Dobb ins and We lls moved to suppress th e fruits of the search w arrant for K evin Richar dson’s res idence, including their confessions. The magistrate judge held a suppressi on hearing and recom

mended that the distric t court overr ule the defendants’ motions. Neither Dobbins
nor Wells fil ed any objec tions to the d istrict c ourt ’s adoption

of the ma

gistrate jud

ge’s rulings
. More spe cific ally, Dobb ins never ch allenged the search warra

nt on the gro

und that the

officers violated the

“knock and

announce” r

ule. Also at trial, the p olice introd uced eviden

ce about the ir efforts t

o reconstruct the tape. Detective Bryan Arno ld noted that the reconstructed ta

pe was of ex ceedingly

poor quality , but that he believed he

saw Kelty o n the tape, th ough he cou

ld not be certain. Alt

hough Dob

bins’ couns el then noted that the defense had never been given a copy of the tape despite prev ious reques ts, he did notobject to Ar

nold’s testi

mony or re quest a copy

of the tape. While the remains of the tape were introduced into evidence, the reconstructed tape was never played for the jury.Nos. 03-5943, 03-5490

United Stat

es v. Dobbi

ns, United S

tates v. Wells

- 5 - Following the results of

the suppres sion hearing , Wells be came a coo perating wi

tness, submitted a guilty plea and entered into a plea agreement. As part of hi s plea agreem

ent, Wells waived “the right to

appeal any s entence within the maximum provided in the statute of conviction and the manne

r in which tha

t sentence was determined on the grounds set forth in 18 U.S.C. § 3742
or on any grou

nd whateve

r, in exchan

ge for the co

ncessions m

ade by the U

nited States .” JA 155, 202–06. The government, among other things, agreed to “consider making a motion pursuant to § 5K1.1 of the Sentencing Guidelines,” which permits a downward sentencing departure when a defendantsubst antia lly assists the government in the prosecution of another individual. JA 154. “Whether or not to make such motion,” the agreemen t added, “shall be in the sole discretion of the United S tates Attorney.” JA 154 . Shortly th ereafter, the Department of Prob ation and Pa role prepared a presentenc e report that re commen ded, amon

g other thing s, a sentenc e for Well s of seven years on the

§ 924(c) use -of-a-fire arm charge
. InApril of 20 03, the jury co nvicted D obbins of all three counts of the indictment. At sentencing, Dobbins rec eived 66 m onths on th e first two counts, to run consecutively with a 120- month sentence on the third c ount, for a total of 186

months. D obbins requ

ested a down

war d adjustmentfor acceptance of responsibility based upon his “alleged” confession. The court found that Dobbin s did not qua

lify for th e acceptance

adjustmen

t because he

disputed hi s guilt at tria

l. At We lls’ sentenc ing, the gov ernment re commen ded a ten-ye ar sentence on the use- of-a
firearm charge and d

eclared that

it was n o t yet prepared to recommend a § 5K1.1 departure. The government

claimed that they would make such a motion on the completion of the trial of

anotherNos. 03-5943, 03-5490

United Stat

es v. Dobbi

ns, United S

tates v. Wells

- 6 - individual, in which W ells was pro viding help . Wells ar gued th at he should receive a § 5K1.1 departure, that the gov ernment sh ould have ad

hered to the p

resentence r

eport’s recommendation of a seven-year sentence and that the presentence report overstated his criminal history.
II. On appeal, Dobbins raises three distinct challenges, all unavailing. A. Dobbins firs t argues that the government should not have been permitted to introduce the videotape recovered fromRichardson ’s residence and that the governm

ent should have turned o ver a copy of th e tape prior t

o trial. We

disagree.
For one, Dobbi

ns’ counsel

agreed with

the district

court that Arnold’s testimony regarding Kelty’s presence on

the videotap e was “okay becau se no one is d isputing tha

t Kelty was t

here.” JA 365. “An attorne

y cannot agr

ee in open court w

ith a judge’s

proposed co

urse of conduct

and then charge the court with error in followi ng that cour se.” United States v. Sloman , 909 F.2d 176, 182 (6th Cir. 1990). For ano ther, even if Dobbins properly preserved his argument, the standard by which we review d

iscovery-ru

le violatio ns under these circumstances is plain error, see United States v. Barajas-

Nunez , 91 F.3d 826 , 830 (6th C ir. 1996); see also United States v. Olano , 507 U.S. 725, 731–32 (19 93) (error m ust be “plain

” and “aff

ect[] subs tantial right s”). Here, A rnold’s tes timonydid not incri

minate Do

bbins, and t

he governm

ent did not p lay the tape a t t rial. Rul eNos. 03-5943, 03-5490

United Stat

es v. Dobbi

ns, United S

tates v. Wells

- 7 - 16(a)(1)(E) of the Fede

ral Rules of

Criminal P

rocedure does not require production of the tape, but
r ather notice and availability for inspection, both of which Dobbins had. The distric t cou r t committed no plain error in permitting Arnold to testify about the tape’s quality. Dobbins’ argument

that the gov ernment im

permissib ly failed to disclose the videotape prior to trial relies on Brady v. Maryland , 373 U.S. 83 (1963) (r equiring dis closu

re of docum

ents “material”

to the pr eparation of the defense). The government, however, cured any violation by offering to give the videotape to Dobbins at trial. See United States v. Be

ncs , 28 F.3d 555, 5 60 (6th Cir. 1994) (“

Brady generally does not apply to delayed disclosure of exculpatory information, but only to a com

plete failu

re to disclos e.”). Dobb ins simply chose not to

watch the ta

pe. B. Dobbins next argues

that Arnold’s no -knock entr

y into Richa

rdson’s resi dence invaded his privacy in violation

of the Four

th Amend ment. His

ar gument f

ai ls for two in

dependent r

easons. First, Dobbins never raised the issue at trial and therefore waived it. See United States v. Bonds , 12 F.3d 540, 569 (6 th Cir. 1993 ). Second, because Do bbins was a c asual visi tor at Rich ardson’s residence, he did not ha

v e a reasonabl e expectation of privacy in the hom e and theref

ore lacked standing to raise the challenge. See United States v. Sangineto-Miranda , 859 F.2d 1 501, 1510 ( 6th Cir. 1988).Nos. 03-5943, 03-5490

United Stat

es v. Dobbi

ns, United S

tates v. Wells

- 8 - C. Finally, Dobbins arg

ues that he shou

ld have recei

ved a downward departur e under § 3E1.1 of the Sentenc ing Guideli nes, which

permits su

ch departure s when a “de fendant cle a rl y demonstr ates acceptance o f responsib ility for his offense, ” because th e trial court a dmitted hi s confession following capture. But throughout this proceed ing Dobbin s has contested ever making the confessi on and ind eed conte sted his guilt at trial an d continu es to do so on appeal . Wh ile § 3E1.1 permits a d

efendant to

gain a depar

ture while st

ill litigating

legal issues , see, e.g. , United States v. Fleener , 900 F.2d 91 4 (6th Cir. 1 990) (holdi ng that a def

endant’s assertion of entrapment did not preclud

e an adjustm

ent under § 3 E1.1), Dobbins’ conduct does n ot fall with

inthis exception,
see U.S.S.G. § 3E1.1, cmt. n.2 (stating that the “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt”); United States v. Williams , 940 F.2d 1 76, 181 (6th Cir. 1991).
III. Wells challenges several aspects of his sentence , but his explicit wai ver of his ri ght to appea

l the sentence precludes these challenges. See United States v. Fleming , 239 F.3d 761, 763–64 (6th Cir. 2001) (noti

ng that “a de fendant in

a criminal

case may w ai ve any ri ght, even a c onstitutional right, by means of a plea agr eeme nt”) (quotat io n marks om

itted). In hi s plea agreem ent, Wells waived the right to appeal any sentence within the statutory m axi mum as w ell as the manner in which the sentence

was determ

ined. Noth

ing indicates that Wells’ sentence exc eeded the maximum.Nos. 03-5943, 03-5490

United Stat

es v. Dobbi

ns, United S

tates v. Wells

- 9 - Nothing indicates th at his plea was unknowing or involuntary. See id. at 764. And nothing ind

icates that the government, which p romised on ly to “consider making” a downward departure motion, brea ch ed its plea agreement with Wells. Compare U nited States

v. Lukse , 286 F.3d 9 06 (6th Cir. 2002) (requiring that the government move for a downward departure when the plea agreement stated that the pros ecution wou ld “make a

motion” u

pon receivin

g substantia

l assistance ); United States v. Benjami

n , 138 F.3d 10 69, 1074 (6 thCir. 1998) ( “The use of [the word] ‘will’ [in the plea agreemen t] indicates that the parties did not intend that the government retain i ts discr etion.”) . We therefore d

ecline to add

ress the me

rits of We lls’ challeng es to his sent ence. IV. For these reasons, we affirm.