2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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# U SA v . W o ot e n P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 01-1967

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w . v i l l a no va . e du/thir dc ir c uit_2004/677NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 01-1967

UNITED S TATES OF AMERI CA

v. KEI TH WOOTEN,

Appellant

On A ppeal from the Un ited States District Co urt

for the Dis tri ct of New Jersey D.C. C riminal No . 00-cr-0061 7-1 (H ono rab le G arre tt E. B row n, Jr.)
Submitte d Pursuant to Third Circ uit LAR 34.1(a)

April 19, 2004 Be for e: S CIR ICA , Chief Judge , GA RT H a nd B RIG HT *, Circuit Judges (Fil ed: May 28, 2004)

OPINI ON OF THE COURT

*The Honorable Myron H. Bri ght, Unit ed State s Circui t Judge for the Eight

h Judici al Circuit , si tting by des ignati on.2

SC IRI CA , Chief Judge
. After ple ading guilty

to a char ge of conspiring to di stribute and poss ess with intent to dis tribute more than 50 grams of cra ck cocaine, defendant Keit h Wooten was sentence d to 262 months’ impris onment. Wooten now appeals his convi ction and sentence , cl aiming t

he Distr ict Court

erred: (1) i n accepti ng a guilt y pl ea that

was not voluntar y and knowing; (2) i n denyi ng a motion t o vacate hi s stipulati on as to dr ug quantity; (3) in imposing h is sentence; and (4) in denying his requ est for eviden tiary hea ring s reg ard ing dru g w eigh t and com pos ition , dru g qu antit y and wa rran tless sea rch
. We wil l a ffirm. I. A grand jury

retur ned a two-count

indict ment agains t Wooten. Count One char ged Wooten with conspi ring t o distribut e and possess with int ent to di stribute more than 50 grams of crac k cocaine, in viol ation of 21 U.S.C. §§ 841 and 846. Count Two charged Wooten with dist

ribut ion and posse ssion wit h intent to dis tribute more than 50 grams of cocaine bas e, i n violation of 21 U.S.C. § 841(a)( 1) and 18 U.S.C. § 2. On Novem ber 22, 2000, Wooten entered a guilt y pl ea on Count One pursuant to a plea agr eement with t

he government, providi ng that i f Wooten pled guilty to Count One, the government wo uld move at sentencing to dismiss Count Two . The parties als o stipulate d that: (1) the offense i nvolved more t han 50 grams, but

less t han one hundred fifty gr ams, of cocaine base; ( 2) Wooten’s acc eptance of r esponsibi lit y warr anted a 2-3

levelreducti on; and (3) Wooten’s entrance of a timely gui lty plea warranted another 1- levelreducti on. The plea agre ement reci ted that “the violation of 21 U.S.C. § 846 charged i n the indict ment carr ies a s tatutoryminimum penalty of t en years impri sonment and a maximum penalty

of lif e impris onment.” But t he agreement s pecifi call y cautioned that “the sent ence to be i mposed . . . is within the s ole dis creti on of the sentencing j udge, subject to . . . the United Stat es Sentencing Guideline s.” Further, the agre ement reci ted that t he government “cannot and does not make any r epresent ation or promise as to what guid eline ra nge w ill be fo und applic able,” a nd th at the g over nm ent res erved the righ t “to take a position wit

h respect to the a ppropri ate sent ence to be i mposed.” Wooten accepted and s igned the plea agr eement. He al so complete d and signed a Rule 11 form on the day of his pl ea, acknowledging that it conta ined thr ee stipulati ons and that l ife im priso nm ent w as th e ap plica ble s tatut ory m axim um pen alty. At the ple a heari ng, the government st ated that the base offense l evel
corres ponding to t

he stipulate d amount of drugs involved in t he Count One offense was 32. But the government spec ific ally reit erate d that t

here was no agreement

as to t he totaloffense le vel or appl icabl e crimi nal his tory categor y. The court cautioned Wooten that he faced a mandator y mini mum of ten year s in pri son and a maximum sentenc e of life impris onment. The court als o cauti oned Wooten that he could not wit hdraw his pl ea4

“on the grounds that anyone’ s predi ction a s to the guidel ines r ange or expect ation of sentence proves i naccurat e.” Du ring the plea h earing , Wo oten c onf irmed his stipu lation a s to dru g qu antity. His attor ney s tate d that t

here was “no evi dence to chal lenge the weight. ” After questioning Wooten about his underst anding and acce ptance of t he plea, the court

determi ned the pl ea had a su ffic ient factu al ba sis an d w as e nter ed k now ing ly and vol unt arily. The Prob ation O ffice subs eque ntly prepa red a p resen tence inves tigation repo rt which calcul ated the initial ba se offense l evel at 32, based on t

he stipulate d quantit

y of drugs involved. Because Wooten qual ifie d as a care er offender under U.S.S. G. § 4B1.1, the offense levelwas adjust ed to 37. Wooten then rece ived a 3-l evel decr ease, a ccording to th e ple a ag reem ent s tipu latio ns re gar din g ac cep tanc e of resp ons ibility an d co ope ratio n. Th e Pr oba tion Office ’s fin al rec om me nde d offen se le vel w as 3 4. At the sent encing hearing, Wooten moved t o vacate hi s stipulati on as to dr ug qua ntity, an d he also req ues ted a hea ring on t he w eigh t and stren gth of th e co cain e ba se. The court found no bas is for vacati ng the st ipulation in t he plea agr eement, noting the l ab repo rt dem onstra ted a w eight o ver fif ty grams , and th at und er the g uidelin es, “pu rity is not an is sue.” The cour t als o found that

Wooten’s pri or cri minal convi ctions qualif ied him for car eer offender stat us. The court

determi ned the appl icabl e offense l evel was 34, with a criminal hi story

of VI, carr

yi ng an appli cable se ntenci ng range of 262 t o 3275

mon ths. The co urt sentenced Wo oten to 262 mon ths imprisonm ent and fiv e years supervi sed rel ease. II. The Distri ct Court ha d juri sdict ion under 18 U.S. C § 3231. We have juri sdict ion under 28 U.S.C. § 1291. III. A. The Plea Was K now ing and Voluntary
. Wooten contends t

he Distr ict Court

erred i n accepti ng his gui lty plea. Although he agree d to the gov ernm ent’s o ffer, h e claim s he w as no t inform ed ab out the applic able stat utory maximum and minimum sentence, nor that drug quanti ty

and ty pe was an elem ent o f the offens e tha t the g ove rnm ent m ust p rov e be yond a rea son able dou bt. Bec au se Woot en di d no t r ai se th e v ol untar in es s o f h is pl eabe fo re th e Di st ri ct Cou rt , w e review for pl ain error, and we “may consult the whole re cord when considering the e ffect of a ny erro r on sub stan tial rig hts.” Un ited S tates v. V onn , 535 U .S. 55, 59 (200 2). To be consti tuti onally

valid, a guilt

y pl ea must repr esent “a voluntar y and intel ligent

choice among the alte rnati ve courses of acti on open to the defendant. ” Hill v. Lockhart , 474 U .S. 52, 56 (198 5). Rule 11 of the Fe deral Ru les of Crim inal Proced ure requir es a sent encing j udge to pers onally address t

he defendant in open court and ensure the p lea is vol unt ary an d th at a factu al ba sis ex ists. See United St ates v. Jasper , 481 F.2d 976, 978 (3d Cir. 197 3).6

The Distri ct Court properly accepted Wooten’ s guil ty plea. Wooten was informed in the pl ea agreement , and agai n during t he plea col loquy , that his offense car ried a mandatory

minimum of ten y ears i n prison, and a maximum of life imprisonment unde r the sent encing gui deline s. The government expressly st ated i n both the pl ea agreement and during t

he plea col loquy

that t here was no st ipulation as t o what sentenc ing guidel ine range would ultimately apply. During the pl ea coll oquy, Wooten confirmed that he underst ood his act

ual sent ence could not

be deter mined unti l aft er complet ion of the present ence report, and that he could not l ater wit hdraw his pl ea “on the gr ounds that anyone’ s predi ction a s to the guidel ine range or expect ation of sentence proves inac cur ate.” Further , at

the ple a heari ng Wooten reaffir med his st ipulation on the i ssue of drug quantit y. Defense counsel a dmitt ed that there was “no e vidence t o chall enge the
we ight.” W ooten ackn ow ledge d that h e und erstoo d if he did n ot plea d gu ilty, he wo uld be enti tled to a tri al at

which “the Government would have to prove [ his] gui lt beyond a reasonabl e doubt. ” Given the cour t’s t horough inqui ryinto t

he factualbasis f

or the pl ea agree men t, as w ell as W ooten ’s und erstan ding of an d des ire to en ter into th e agre eme nt,
we see no e rror. B. The District C ourt D id No t Err in R efusing to V acate the Dru g Q uantity Sti pulat ion. At sentencing, Wooten moved to vacat e his stipulation that the offense involved more than fi fty

grams. He chal lenged the DEA’s weight analy sis as flawed and argued7

t ha t he sh ou l d b e g i ve n m or e ti me t o h av e t he dr ug we i gh edby

hi s o wn expe r t . We
rev iew the D istrict Co urt’s find ing of a fac tual b asis for a bus e of disc retio n. United States v . Cefa ratti , 221 F.3 d 50 2, 50 9 (3 d C ir. 20 00)
. We see no error. The court found t he plea was suppor

ted by an adequate fa ctual basis, based o n the D EA lab report. W ooten rece ived and exam ined this report before accepti ng the ple a offer, and at the plea hearing, hi s att orney stat ed there was “no evide nce” to cha llenge the D EA ’s listed w eight. T he co urt fou nd th at W ooten kno win gly and voluntaril y ent ered the plea agr eement which speci fical ly include d the st ipulation as to drug qu antity. In rejecting the motion to va cate the stipulation, the D istrict Court merely held W ooten to his side of the barg ain, having b enefitted from the gove rnmen t’s agreement t o dismis s the Count Two charge and to recommend a 3-leve l reduction in t he to ta l o ff en se le ve l. Wher e ade fe ndantse ek s t o e va de a v al id ly ac ce pt edst ip ul at io n, we have “no diffi culty

in holding [the defendant ] to t he plea agr eement for he s eeks the benefit s of it

without i ts burde ns.” United Stat es v. Parke r , 874 F.2d 174, 178 (3d Cir. 198 9). C. The District C ourt D id No t Brea ch the P lea Ag reem ent. Wooten contends t

hat the Distri ct Court e rred i n imposing a s entence of 262 months impri sonment based on a ba se offense l evel of 37. At sentencing, the Distri ct1 Although he rai sed the i ssue at sentencing, Wooten has not appealed t

he Distr ict Court’s f inding t hat his prior

offenses qual ifie d him for car eer offender stat us under the gui delin es. 2 Co unt O ne ch arged Wo oten w ith a vio lation o f 21 U.S .C. § 8 46, C onsp iracy to Dis tribu te an d P oss ess W ith In tent t o D istrib ute M ore than 50 G ram s of Cra ck C oca ine. The applic able se ntenc ing g uidelin e for v iolation of 2 1 U .S.C. § 846 is locate d in U.S.S.G. § 2D1.1( c)(4) and carri es a base offe nse levelof 32. 8 Court found Wooten quali fied as acareer offender under

§ 4B1.1. 1 This res ulted in a base offense l evel of 37 for the appl icabl e drug quantity . Wooten cla ims the Dis tri ct Court violated his plea agreement when it calculat ed his sentence using a base offense levelof 37 inst ead of a base offe nse levelof 32. 2 Bec ause Wo oten d id no t raise this obj ectio n at s ente ncin g, w e rev iew for plain erro r. United Stat es v. Thornton , 306 F.3d 1355, 13 57 (3d C ir 2002). The plea agreement did not include a stipulati on as to applicable base offense lev el. Th e a gr ee m en t co nt ain ed on ly th re e s tip ul ati on s – on e r ela tin g t o d ru g q ua nt ity, and two relating to the government’s recommendation on decreases in the base offense level d ue to W ooten ’s acce ptanc e of re spon sibility and c oop eration . Con trary to Wooten’s conte ntion, the si gned writt en agreement e xplicitly cauti oned that

the government “cannot

and does not make any repres entat ion or pr omise as t o what guid eline ra nge w ill be fo und applic able,” a nd th at “the senten ce to b e imp osed . . . is within t he sole di scret ion of the sentencing judge, subject to . . . the United Stat es Sentenci ng Guideline s.” At t he plea hearing, t

he government r ecit ed the three stipu latio ns a nd r eiter ated ther e w as n o ag reem ent a s to th e ap plica ble g uid eline ran ge.9

Wooten confirmed he under stood hi s sente nce could not be deter mined unti l aft er completi on of the pre sentence report , and that the court had authori ty to impose a sentence m ore or less seve re than that prov ided by the guide lines. We see no error. D. The Sentence Imposed Did Not Violate Apprendi v. New Jersey . Wo oten a lleges th e D istrict Co urt dep rived h im of his D ue P roces s and Sixth Am endm ent rights unde r Apprendi v. New Jersey , 530 U.S . 466 (20 00) , because hi s 262 month pri son sente nce exceeded t he stat utory maximum for the applic able offens e. But t here can be no due pr ocess vi olati on because Wooten was sentenced to a term of

imprisonm ent less than the m aximum sentence a pplicable for a violation of 21 U.S.C. § 846. The plea a greement Wooten si gned specif ical ly informed him th at base d on the stipu lated d rug q uantity, the o ffen se to w hich W ooten pled g uilty
carr ied a ma xim um pen alty of life im priso nm ent. In addition, by

stipulating to drug quantity as part of his gui lty

plea, Wooten
wa ived his S ixth Am end me nt rig ht to hav e this issu e su bm itted to a ju ry. See Neely v. Pen nsylva nia , 411 U.S. 954, 957 (1973) (“ A guilty plea constitut es a waiver of t he fun dam ental rig hts to a ju ry trial . . . and to b e con victed by proo f beyon d all rea sona ble dou bt.”); see als o United Stat es v. Leachman , 309 F .3d 37 7, 384 (6th Cir. 2002 ) (where defendant “pl ed guilt

y t o an indic tment t

hat speci fied the amount of drugs” he “effective ly waive d his rig hts to h ave th e am oun t of dru gs pro ved to a jury beyon d all reasonab le doubt w hen he pled guilty”).10

E. The D istrictCourt D id Not Ab use its Discretion in Evidentiary Hear ings. Wooten contends t

he Distr ict Court

erred i n denyi ng severalmotions r equesting hearings on suppress ion of evi dence and drug quantity and compositi on. Because t he requ est for a sup pressio n hea ring w as m ade p rior to en tering th e plea agree men t, W oot en’ s su bse que nt g uilty ple a w aive d hi s righ t to ap pea l the l ega lity of th e se arch
. See Tollett v. Henderson , 411 U.S. 258, 267 (1973) (a defendant who pleads guilt y waives the right to appeal“independent clai ms relating to t

he deprivation of c onsti tuti onal [or nonconsti tuti onal] rights that oc curred prior t o the entryof the gui lty plea. ”). At s entenci ng, Wooten’s attorney

conceded that

all out standi ng motions were ef fecti vely withdrawn at the time he entered t

he guilt y pl ea. Wooten also submi tted a motion several months af ter ent ering hi s guil ty

plea, requesting a h earing on d rug qua ntity and compo sition. At sentencing , the District Court rejec ted W oot en’ s req ues t to co ndu ct he arin gs o n th e dr ug q uan tity and com pos ition
. Wooten entered a

binding pl ea agreement which incl uded a stipulati on as to t he drug quanti ty . The District Court accept ed Wooten’s guilty plea, finding t

hat the plea was knowing, volunt ary

and factual ly

sound. The act

ual weight

of the cocaine base cont ained in a d rug mix ture is irre leva nt fo r sen tenc ing pur pos es u nde r § 8 41( b)(1 )(a)( 3). See U.S .S.G . § 2D 1.1, N ote A ( “. . . the w eight o f a co ntrolled subs tance set for th in the table refers to the e ntir e weight of any mixture or

substanc e contai ning a det ectabl e amount of the co ntrolled subs tance .”); see a lso United S tates v. G urgio lo , 894 F.2d 56, 60-61 (3d11

Cir. 1990) (“Drugs cont aining de tect able amounts of [il legal ] subst ances . . . shoul d be weighed as a whole, irr espective of purit y. ”). The Dist

rict Court did not

err i n rejec ting Wooten’s reques t for a he aring on dr ug quantit

y and composi tion. IV. For the r easons set

forth, we will affi rm the judgment of convict ion and sent ence.