UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5252

JAMES RICHARD GARRISON, a/k/a Big

Red,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Terrence W. Boyle, District Judge.

(CR-94-138-MU)

Submitted: February 27, 1996

Decided: March 29, 1996

Before MURNAGHAN, WILKINS, and HAMILTON, Circuit

Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Bradford F. Icard, Charlotte, North Carolina; Richard D. Willstatter,

GREEN & WILLSTATTER, White Plains, New York, for Appellant.

Mark T. Calloway, United States Attorney, Gretchen C.F. Shappert,

Assistant United States Attorney, Charlotte, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

James Richard Garrison appeals the 180-month sentence he

received after his guilty plea to participation in a crack conspiracy, 21

U.S.C.A. § 846 (West Supp. 1995) (Count One), and possession of a

firearm in relation to drug trafficking crime, 18 U.S.C.A. § 924(c)

(West Supp. 1995) (Count Ten). We vacate the sentence and remand

for resentencing.

Garrison pled guilty to participation in a crack conspiracy and to

possession of a Raven .25 caliber semi-automatic pistol in relation to

a drug trafficking offense on August 5, 1994. He was carrying the

Raven .25 caliber pistol when he was arrested; a shotgun was seized

from his house. Following his plea, he also admitted to case agents

and the probation officer that he bought a Norinco .380 caliber semiautomatic pistol in October 1993, during the conspiracy.

Garrison's plea agreement stipulated a factual basis for the guilty

plea and relieved the government of putting on evidence; it also

deferred presentation of a factual basis until sentencing. The agreement contained the following waiver, which was brought to Garrison's attention during the Fed. R. Crim. P. 11 hearing:

Provided that the sentence the Court imposes on the defendant does not exceed the maximum of the applicable Sentencing Guidelines range, the defendant knowingly and

expressly waives the right to contest either the conviction or

the sentence in any post-conviction proceeding, including

any proceeding under 28 U.S.C. § 2255; provided further,

this waiver shall not apply to rights based on allegations of

ineffective assistance of counsel or prosecutorial misconduct.

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The agreement also required Garrison to cooperate with the government and promised that "[n]othing that the Defendant discloses

pursuant to this Plea Agreement shall be used against him in any

criminal proceeding."

The agreement stipulated that Garrison was responsible for 1.5

kilograms of crack, that the offense level for that amount would be

38,1 and that Garrison should get a 3-level adjustment for acceptance

of responsibility. Without additional enhancements and with a criminal history of I (as Garrison's turned out to be) the guideline range

for Count One would have been 168-210 months. However, the probation officer recommended a 4-level adjustment for a leadership

role, USSG § 3B1.1(a), and a 2-level enhancement under USSG

§ 2D1.1(b)(1) for possession of a firearm during a drug trafficking

offense as well as conspiracy. With these enhancements, Garrison's

recommended guideline range for Count One was 324-405 months.

Garrison objected to the role enhancement and also objected that

the weapon enhancement was not applicable because he was also

being sentenced under § 924(c) for use of a firearm in a drug trafficking crime. See USSG § 2K2.4, comment. (n.2). The probation officer

responded that the leader adjustment was warranted because Garrison

made trips to New York for cocaine and admitted selling cocaine to

at least fifteen people on a regular basis, including leaders of drug

organizations. The probation officer suggested that the firearm

enhancement might be based on Garrison's possession of the Norinco

.380 caliber pistol at a separate time from the conduct underlying his

§ 924(c) conviction--his possession of the Raven .25 caliber pistol in

August 1994.

The government did not respond to Garrison's objections, but did

move for a substantial assistance departure to a sentence of 180

months. At sentencing, the district court did not address the objections

to the presentence report. Instead, the court told Garrison's attorney

that, "We're past that. . . . I can either give him a guideline sentence,

which I would be glad to do, or depart. . . . You don't get both, do

you follow me?" Defense counsel acquiesced and said Garrison

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1 United States Sentencing Commission, Guidelines Manual, § 2D1.1

(Nov. 1994).

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would accept the government's offer of a 180-month sentence. The

district court then found that the guideline range for Count One was

324-405 months, as recommended by the probation officer, and

departed to 180 months.

We must first decide whether Garrison's waiver of appeal rights

requires dismissal of his appeal. Garrison argues that the appeal must

be heard on the merits because the prosecutor breached the plea

agreement (and thus engaged in prosecutorial misconduct) by arguing

for a higher offense level than stipulated and providing protected

information to the probation officer, or alternatively, because his

attorney was ineffective in allowing him to reveal incriminating information to the probation officer.

Because Garrison did not claim that the government had breached

the plea agreement in the district court, this claim is reviewed for

plain error, that is, error which affects substantial rights and seriously

affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725 (1993); United States v.

Fant, 974 F.2d 559, 562 (4th Cir. 1992).

Garrison first claims that the government breached the plea agreement by arguing for the weapon enhancement. The probation officer's

response to Garrison's objection stated that the government "contends

this enhancement is applicable due to the fact that different guns were

involved during different time periods." The government did not

argue this position, however, either in a written response or at the sentencing hearing. The government asserts in its supplemental brief that

the issue had been previously discussed in a general way with probation officers. Such discussion would not constitute prosecutorial misconduct.

Second, Garrison claims the government improperly revealed to

the probation officer information he provided under the cooperation

agreement, i.e., his purchase of the Norinco pistol in October 1993.

Incriminating information which is provided under a cooperation

agreement, and which was previously not known to the government,

may not be used to determine the offense level. However, such information must still be provided to the court. USSG§ 1B1.8(a), com-

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ment. (n.1). In doing so, the government did not act improperly or

breach the plea agreement.

Third, Garrison argues that the government failed to fulfill the

promise made in the plea agreement that he could make and argue

objections to the presentence report because it"stood idly by" when

the district court declined to rule on his objections to the presentence

report. Although the government could have requested a ruling, its

failure to do so does not amount to prosecutorial misconduct.

However, when information provided by a defendant pursuant to

a cooperation agreement--and not already known to the government

--is used to enhance his sentence, the agreement is breached. Fant,

974 F.2d at 562-65. Such information repeated to a probation officer

is also protected. Id. at 564; USSG § 1B1.8, comment. (n.5). The government is equivocal about whether it had prior knowledge of Garrison's purchase of the Norinco .38 pistol and in fact suggests that it

did not because Garrison was the first conspirator to cooperate. The

government implies that if Garrison revealed his purchase of the

Norinco pistol before entering into the plea agreement, the enhancement would be available.2 However, the government offers no evidence that he did so. On the record before us, we conclude that the

agreement was breached. Therefore, Garrison's waiver of appeal

rights does not preclude us from addressing the merits of his appeal.

We do not address his ineffective assistance claim.

Garrison maintains that the district court erred in failing to resolve

his objections to the presentence report. We agree. Even when the district court intends to depart, it should first determine the correct

guideline range. United States v. Talbott, 902 F.2d 1129, 1134 (4th

Cir. 1990). Here, the district court adopted the probation officer's recommendations without permitting Garrison to contest them and without ruling on the objections. The court thus failed to comply with Fed.

R. Crim. P. 32(c)(1). The government's motion for a substantial assis-

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2 Apart from the USSG § 1B1.8 problem, the weapon enhancement

raises a legal issue this court has not considered--whether a defendant

who possesses more than one firearm in connection with a drug trafficking offense may be convicted under § 924(c) for one firearm and receive

an enhancement under USSG § 2D1.1(b)(1) for a different firearm.

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tance departure did not remove the district court's duty to rule on the

objections. Had Garrison prevailed on both of his objections to the

presentence report, his guideline range would have been 168-210

months. With a downward departure for substantial assistance, a sentence below 168 months was possible, although the court could have

decided not to depart below the guideline range based on consideration of Garrison's possession of the Norinco pistol. USSG § 1B1.8,

comment. (n.1). Moreover, defense counsel did not voluntarily abandon Garrison's objections because the district court erroneously

forced him to choose between resolution of the objections and a substantial assistance departure. Therefore, we vacate the sentence and

remand the case for resentencing.

Garrison also contends that he should be resentenced because he

was not sentenced by the same judge who accepted his guilty plea.

Because resentencing is required on other grounds, we need not

address this issue.

The sentence imposed by the district court is accordingly vacated

and the case is remanded for resentencing. On remand, the district

court should resolve Garrison's objections to the recommended

enhancements for leadership role and for possession of the Norinco

pistol before making a departure for substantial assistance. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

VACATED AND REMANDED

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