Professional Documents
Culture Documents
United States v. Connolly, 1st Cir. (1995)
United States v. Connolly, 1st Cir. (1995)
Sakellarios
with
whom
David
I.
Bailinson
________________________
_____________________
Sakellarios & Associates were on brief for appellant.
________________________
Margaret D. McGaughey, Assistant United States Attorney, w
_______________________
whom Jay P. McCloskey, United States Attorney, and Jonathan
__________________
_________
Chapman, Assistant United States Attorney, were on brief for
_______
United States.
____________________
April 4, 1995
____________________
pleaded
guilty
indictment.
The
Connolly and
others into
Connolly
cache
On December
to
two
counts
indictment related
a
home in
and his
confederates
of marijuana
to steal.
to the
1992 entry
Cornish, Maine,
believed they
Based
to one count
four-count
on a
by
where
would find
plea agreement,
of conspiring to
21 U.S.C.
possess
841,
846,
924(c).
The
because
report
recommended
Connolly
3B1.1(a),
and
was
a
leader or
three-level
point, based on a
conviction,
other charges
19
U.S.S.G.
four-level
organizer,
reduction
3E1.1.
offense
for
Connolly had
Florida assault
or convictions
not
government
uncounted criminal
moved
history.
for
upward
U.S.S.G.
an
4A1.2.
for
Connolly's
-2-2-
departure
to
move
for an
objections to
departure
the presentence
based
witness the
district
upward departure.
court found
that
filed various
on diminished
homeowner whose
Connolly
capacity,
house
the
and
had been
homeowner's
a downward
sought as
invaded.
The
testimony
was
the issue
On
presented
the
issue
of
drug
quantity,
the
government
of his
at least
higher figures
denied
that
interviews, the
eight
defendants had
40-pound bags
were also
reported.
the drugs to
expected to
of marijuana,
Connolly
although
testified and
that he had
government
departure based
no promise had
press
for
been made
by the earlier
departure.
then
to
had been
repeated, when
-3-
upward
arguing that
departure," and
an
prosecutor not
prosecutor had
upward
to
continued
for an
a protest
was
-3-
made,
that
the
earlier
do that."
prosecutor
had
also
made
guideline
conspirators
had expected
adjustment of four
of three
substance
that the
upward
proper; and
steal;
was not
warranted.
This
resulted
in an
to
criminal
history,
the
court
found
that
the
The
have contemplated
had not so
requested."
. . if
in any event
the government
The
court
also found
that
of
17-year-old
burglary
counted
conviction, although
under U.S.S.G.
remote
4A1.2
in
because
of conviction.
time,
should
it was
This added
be
similar in
three points
months.
The
deducting
time
court
imposed
already
spent
sentence
in pretrial
of
100
months,
custody.
The
-4-4-
statutory
minimum
sentence
consecutively to the
II.
18
U.S.C.
of
60
months,
to
be
924(c).
Connolly has
served
on count
court.
Connolly's first
challenge is
to the district
arguments is
that the
a breach
government's motion
of the plea
court's
for an
agreement or
at
be sought.
We
assume arguendo
the accuracy
of the
________
defense's
description
of
what
the
prosecutor
said;
two
Still,
it is difficult
to regard that
statement as a
agreement itself.
The
agreement
obligations of
explicitly
sets
commitment
is to
drop
two
"Defendant
understands that
other
forth
various
counts,
there are
the
and
no further
says
that
or other
except
in
writing and
signed
by all
parties."
Further,
-5-5-
hearing,
the
district
court
inquired
whether
any
other
purported to be a complete
But, if taken
know what
more a
prosecutor could
do to write
is
an
thereafter confirmed in
the plea
bargain.
Absent special circumstances, a defendant--quite as much
as the government--is bound by
that there
Cir. 1994),
to
explain
Nor
is
parties' commitments.
may be exceptions
to this
has
general
F.3d 220,
pointed to
nothing
rather
there any
to
basis
contradict
here for
the
charging
later
the
some
cases,
earlier
oral
discussions
written statements.
-6-6-
with
the
interpret
This appears to
have
been
the case
1986),
in
In re Arnett, 804
_____________
cited to us by
Connolly.
In
F.2d 1200
(11th Cir.
forfeiting
provided
farm.
The
resulting
plea
agreement
the time of
later
his
his arrest.
effort by
The Eleventh
the government
to forfeit
the farm
was a
in Arnett
______
specific $3,000
document for
was the
only
the context
of
that
counsel
the earlier
forfeiture was
arguably
discussion.
had
limited
_______
reason
to
to
the
plea
to read it--to
$3,000--then defense
think
If
that
no
separate
Rule 11 colloquy.
In this
written
case, we
agreement
misconstrued,
a
do not
can
be
see how
construed,
The
agreement did
not
sentence.
or
even
the
reasonably
departure.
that
any language in
was
free to
commit anyone
as to
specifically provided
petition for
an "appropriate"
-7-7-
not
part
calculations
of
the
agreement,
and
appear to be commonplace.
such
illustrative
not to
not have
forfeiture
an apparent
in Arnett was
threat of
unfairness.
ultimately in
While the
the control
of the
______
prosecutor, the
district court.
The
would have
Connolly's record,
sentiment.
yet to
Further, the
be recounted,
The nature
amply explains
presentence report
proposed
make and
break an
be deemed harmless.
Cir. 1992).
The
government
Compare Kingsley
_______ ________
explicit promise,
appears to remain
We leave
the law.
See
___
Cir. 1992).
F.2d 109,
-8-8-
New York,
________
115 (1st
and decide
this case on the ground that the government did not break any
promise to which it was committed by the final agreement.
In a
related argument
court erred
history.
and
on the
merits
the district
based on
criminal
pending charges
assault
was
conviction
history
that
point, Connolly
malicious
lengthy.
damage,
Apart from
represented
had been
larceny,
his
the Florida
first
convicted for
multiple
criminal
car theft,
assaults,
weapons
For
did not
history points.
court
may
defendant
the
automatically
upward
reliable
does not
criminal
the district
age--these
translate into
wherever
is initially placed]
the seriousness
reasons--such as
depart
indicates that
various
information
[in which the
adequately reflect
criminal conduct or
U.S.S.G.
4A1.3.
departures
adjustment
criminal
by
making
an
history category
and then
new
in
the
criminal history
category
for
defendant's
applying the
category.
Here,
Id.
___
by
guideline
The court
awarding
fell about
-9-9-
two
years
beyond
the
15-year
cut-off
period.
Id.
___
4A1.2(e)(1).
In this court, Connolly objects
long
in the past, that did not closely resemble the present crime.
But
account
of
substantial
the single
criminal
prior
career
conviction but
which,
after
because
a
of a
period
of
the
current
offense,
was
used
simply
as
judgment as to
and
criminal history is
Mottram, 34
_______
on judicial review.
We have
Cir. 1994).
United
______
case, which
Connolly's
nearly resulted
in several
deaths, or
in this case.
Connolly's
court's
remaining arguments
findings as to the
relate to
the district
-10-10-
leadership role.
unreliable
the findings.
both the
guidelines and
hearsay
can be
used
at
(1990),
U.S. 927
cert. denied,
_____________
reliable evidence
500
supported the
(1991),
findings here is
Connolly
depended
confederates
expected to find.
defendants
were assuredly
presentence
testified.
report
But
Id. at 36-37.
___
and
what
quantity
he
and
his
v. Piper, 35
_____
hearsay,
by
on
United States
_____________
whether
tested on
attributable
F.3d
and
an
being
reported in
investigating
officer
the
who
consistent
in fixing 320 pounds as about the least that Connolly and the
others
to
expected to find.
1 F.3d 51
for
but,
recruited four
"leadership,"
at the
Connolly
behest
of the
did
not
original
concoct
plotters, he
-11-11-
the
a large
with the
to Connolly
as
giving
orders
execution of the
to
plan.
others
in the
or those
of a
testimony.
Affirmed.
_________
planning
actual
3B1.1(a).
and
be found
Again, the
close friend,
who gave
rather insubstantial
-12-12-