At page 91 Reviewing downward departure extent and double jeopardy claims31 citing casesDouble * The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota, sitting by designation. jeopardy claims may not be raised for the first time on appeal
- United States v. Robert Berni, 439 F.3d 990 (8th Cir. 2006).published (We have repeatedly held that the extent of a downward departure is unreviewable on appeal.)
- United States v. Ronald Frazier, No. 98-3398 (8th Cir. Feb. 18, 1999).unpublished(Double * The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota, sitting by designation. jeopardy claims may not be raised for the first time on appeal)
- United States v. Plenty Chief, 561 F.3d 846 (8th Cir. 2009).published Id. (citing United States v. High Elk, 442 F.3d 622, 624 (8th Cir. 2006); United States v. Goodwin, 72 F.3d 88, 91 (8th Cir. 1995); United States v. Garrett, 961 F.2d 743 , 748 & n.7 (8th Cir. 1992)).
- United States v. Edward Moore, 481 F.3d 1113 (8th Cir. 2007).published We note that a double-jeopardy claim may not be raised for the first time on appeal, United States v. Goodwin, 72 F.3d 88, 91 (8th Cir. 1995), and that a claim of ineffective assistance of counsel is not ordinarily considered on direct app…
- United States v. Ihmoud, 454 F.3d 887 (8th Cir. 2006).publishedSee United States v. High Elk, 442 F.3d 622, 624 (8th Cir.2006); United States v. Santana, 150 F.3d 860, 863-64 (8th Cir.1998); United States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995); United States v. Shephard, 4 F.3d 647, 650 (8th Cir.19…
- United States v. Walid Ihmoud, United States of Am. v. Mohammad Almassri, United States of Am. v. Charles D'ary, United States of Am. v. Zeyad Abdeljabbar, 454 F.3d 887 (8th Cir. 2006).publishedSee United States v. High Elk, 442 F.3d 622, 624 (8th Cir. 2006); United States v. Santana, 150 F.3d 860, 863-64 (8th Cir.1998); United States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995); United States v. Shephard, 4 F.3d 647, 650 (8th Cir.1…
- United States v. Mark High Elk, United States of Am. v. Richard Laplante, 442 F.3d 622 (8th Cir. 2006).published“It is well settled that ‘[djouble jeopardy claims may not be raised for the first time on appeal.’ ” United States v. Santana, 150 F.3d 860, 863-64 (8th Cir.1998)(quoting United States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995)).
- United States v. Terrence Williams, 324 F.3d 1049 (8th Cir. 2003).publishedUnited States v. McCarthy, 97 F.3d 1562 , 1577 (8th Cir.1996); United States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995); United States v. Dutcher, 8 F.3d 11, 12 (8th Cir.1993) ("[W]e may not review the extent of the district court's downwar…
- United States v. Terrance Williams, No. 02-3020 (8th Cir. Apr. 14, 2003).publishedUnited States v. McCarthy, 97 F.3d 1562 , 1577 (8th Cir. 1996); United States v. Goodwin, 72 F.3d 88, 91 (8th Cir. 1995); United States v. Dutcher, 8 F.3d 11, 12 (8th Cir. 1993) ("[W]e may not review the extent of the district court's down…
- United States v. Flavio Diaz Santana, 150 F.3d 860 (8th Cir. 1998).published Diaz did not raise this claim in the district court, and it is well settled that “[d]ouble jeopardy claims may not be raised for the first time on appeal.” United States v. Goodwin, 72 F.3d 88, 91 (8th Cir. 1995).
Show 14 more citing cases
- United States v. Dorian Dee Stuttley, United States of Am. v. Charles Antonio Webster, United States of Am. v. Alexander Faulkner, Also Known as Mike, United States of Am. v. Alexi Ricardo Bravo, Also Known as Carlos, United States of Am. v. Charles A. Wise, 103 F.3d 684 (8th Cir. 1997).publishedUnited States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995); United States v. Left Hand Bull, 901 F.2d 647, 650 (8th Cir.1990).
- United States v. Dorian Dee Stuttley, 103 F.3d 684 (8th Cir. 1996).publishedUnited States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995); United States v. Left Hand Bull, 901 F.2d 647, 650 (8th Cir.1990).
- United States v. Thomas J. McCarthy, 97 F.3d 1562 (8th Cir. 1996).published(departure pursuant to § 5K1.1 and § 3553(e))
- United States v. Thomas Joseph McCarthy United States of Am. v. Clarence William Houston, Also Known as C.W. Houston, United States of Am. v. John Walter Piner, United States of Am. v. Carl Luverne Thompsen, United States of Am. v. Michael Arney Ness, United States of Am. v. Stephen Lloyd Labrie, 97 F.3d 1562 (8th Cir. 1996).published(departure pursuant to § 5K1.1 and § 3553(e))
- United States v. Bobby Eugene McGee, No. 95-1626 (8th Cir. May 8, 1996).unpublishedFinally, we may not review either the district court's discretionary refusal to depart, see United States v. Jackson, 56 F.3d 959, 960 (8th Cir. 1995), or the extent of its substantial-assistance departure, see United States v. Goodwin, 72…
- United States v. Bobby Eugene McGee United States of Am. v. George Charles Strable, Sr., United States of Am. v. Kelly Robert Hilpipre, 89 F.3d 842 (8th Cir. 1996).unpublishedFinally, we may not review either the district court's discretionary refusal to depart, see United States v. Jackson, 56 F.3d 959, 960 (8th Cir.1995), or the extent of its substantial-assistance departure, see United States v. Goodwin, 72…
- United States v. Leroyce White, 481 F. App'x 275 (8th Cir. 2012).unpublished(Double jeopardy claims may not be raised for the first time on appeal.)
- United States v. Jesse Puckett, 147 F.3d 765 (8th Cir. 1998).publishedSee United States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995); United States v. Albers, 961 F.2d 710, 712 (8th Cir.1992).
- United States v. Jesse Puckett, United States of Am. v. Lyndon Simmons, United States of Am. v. Deleon Gadison, United States of Am. v. George Harper, United States of Am. v. Tyrone Redmond, Also Known as Isaac Thomas, United States of Am. v. Jessica Sparlin, 147 F.3d 765 (8th Cir. 1998).publishedSee United States v. Goodwin, 72 F.3d 88, 91 (8th Cir.1995); United States v. Albers, 961 F.2d 710, 712 (8th Cir.1992).
- United States v. Derrick Eugene Coleman, Also Known as Wobbley, United States of Am. v. Deanna Elaine Foster, United States of Am. v. Lana Ann Glass, Also Known as Lana Ann Bellecourt, United States of Am. v. Kathryn Chevette Wooten, United States of Am. v. Damon Laurice Whitmore, 132 F.3d 440 (8th Cir. 1998).published(extent of downward departure is unreviewable; declining to consider sentencing disparity between two defendants after both received downward departures for their respective cooperation, because appeal essentially challe…)
- United States v. Derrick E. Coleman, 132 F.3d 440 (8th Cir. 1998).published(extent of downward departure is unreviewable; declining to consider sentencing disparity between two defendants after both received downward departures for their respective cooperation, because appeal essentially challe…)
- David Jackson v. U.S. Parole Comm., No. 96-2724 (8th Cir. Nov. 19, 1997).unpublished(double -6- jeopardy claim may not be raised for first time on appeal)
- David Jackson v. U.S. Parole Comm'n Conrad Patillo, in His Off. Capacity as U.S. Marshal for the E. Dist. of Arkansas, Randy Johnson, in His Off. Capacity as Sheriff of Pulaski Cnty. Arkansas, United States of Am. v. David Houston Jackson, 131 F.3d 143 (8th Cir. 1997).unpublished(double jeopardy claim may not be raised for first time on appeal)
- United States v. Two Elk, 536 F.3d 890 (8th Cir. 2008).published The government, however, offers Eighth Circuit case law stating that “[i]t is well settled that ‘[d]ouble jeopardy claims may not be raised for the first time on appeal.’” United States v. High Elk, 442 F.3d 622, 624 (8th Cir. 2006) (quoti…
At page 90 Discussing sentencing departure and safety valve provision12 citing casessafety-valve provision provides relief when mandatory-minimum sentence is greater than applicable guideline sentence
- United States v. Michael Jonathan Booze, 108 F.3d 378 (D.C. Cir. 1997).publishedAbsent specific challenges by appellant, the district court was entitled to rely on the trial record references cited by the government as the basis for its own factual findings. 5 See United States v. Goodwin, 72 F.3d 88, 90 (8th Cir.1995…
- United States v. Ben J. Wiggins, 104 F.3d 174 (8th Cir. 1997).published United States v. Goodwin, 72 F.3d 88, 90 (8th Cir. 1995).
- United States v. Edward J. Clary, No. 96-1790 (8th Cir. Sept. 16, 1996).unpublished (safety-valve provision provides relief when mandatory-minimum sentence is greater than applicable guideline sentence)
- United States v. Edward James Clary, 97 F.3d 1457 (8th Cir. 1996).unpublished (safety-valve provision provides relief when mandatory-minimum sentence is greater than applicable guideline sentence)
- United States v. Ronald Russ, 97 F.3d 1457 (8th Cir. 1996).unpublished(safety-valve provision provides relief when mandatory minimum sentence is greater than applicable Guidelines sentence)
- United States v. William Henry Hester, 140 F.3d 753 (8th Cir. 1998).published(holding defendant waived objections to quantity determination where he argued only the departure issue and failed to pursue his quantity objection or request an evidentiary hearing on the issue when given opportunities…)
- United States v. Clarence Robinson, 110 F.3d 1320 (8th Cir. 1997).published See United States v. Goodwin, 72 F.3d 88, 90 (8th Cir.1995). 30 Furthermore, even if Robinson had objected to the drug quantity attributed to him in the PSR, it is apparent that the evidence presented at trial is sufficient to support a fi…
- United States v. Jeffrey Paul Moser, 168 F.3d 1130 (8th Cir. 1999).published See, e.g., United States v. Goodwin, 72 F.3d 88, 90 (8th Cir.1995), and United States v. Flores, 9 F.3d 54, 56 (8th Cir.1993).
At page 89 Reviewability of district court's downward departure under § 3553(e)1 citing caseextent of district court&s downward departure under § 3553(e) and § 5K1.1 is unreviewable on appeal
- United States v. Norman, No. 97-3584 (8th Cir. Aug. 5, 1998).unpublished(extent of district court&s downward departure under § 3553(e) and § 5K1.1 is unreviewable on appeal)
v.
Connie GOODWIN, Appellant
On June 27,1994, Connie Goodwin pleaded guilty to one count of distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1). On November 18, 1994, the district court sentenced Goodwin to 57 months incarceration. Goodwin’s sentence included a 51-month downward departure from the guideline sentence as well as a three-month downward departure from the statutory minimum sentence of five years, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), in recognition of Goodwin’s substantial assistance to law enforcement agencies. On appeal, Goodwin argues that the court abused its discretion in sentencing him. He also asserts that his conviction and sentence subjected him to double jeopardy because of an earlier civil forfeiture of $1,500 and a cellular telephone. We affirm.
BACKGROUND
Connie Goodwin was a California-based distributor of methamphetamine. On March 18, 1993, law enforcement agents intercepted a drug shipment sent to Minnesota by Goodwin via Federal Express. The package was addressed to Dawn Oxley and apparently intended for Laddawn Brousseau, one of Ox-ley’s neighbors. Brousseau began cooperating with authorities and participated in a controlled buy from Goodwin in California on February 3, 1994.
After his arrest, Goodwin also began cooperating with authorities. Pursuant to a plea agreement with the government, Goodwin pleaded guilty to one count of distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) based on the drugs recovered by authorities from the controlled buy between Brousseau and Goodwin. At sentencing, the government dismissed the remaining seven counts of the indictment against Goodwin. The plea agreement specifically provided:
The defendant understands that he will be held accountable for the drugs involved in the dismissed counts for sentencing purposes as relevant conduct. The government’s position is that the total drug quantity for which the defendant is responsible is at least 351 grams of methamphetamine (actual) plus approximately 23 ounces of methamphetamine (mixture). The defendant reserves the right to challenge the total drug quantity, and the court will resolve any disputes.
Plea Agreement ¶ 3 (footnote omitted). The plea agreement anticipated a base offense level of 34. In his objections to the presen-tence report, Goodwin challenged the calculation of drug quantity for purposes of establishing his base offense level. [1] Goodwin acknowledged responsibility for the drugs seized by authorities from the March 18, 1993 package addressed to Dawn Oxley and from the February 3, 1994 controlled buy in California. He objected, however, to the inclusion of unseized drug quantities that Brousseau told agents she had received from Goodwin on prior occasions, claiming that Brousseau’s statements did not constitute sufficiently reliable proof.
At sentencing, the court accepted the offense-level calculations in the plea agreement and the presentence report. [2] After reducing the base offense level of 34 by three levels because of Goodwin’s acceptance of responsibility, the district court determined that the[*90] total offense level was 31. With a criminal history score of I, the district court noted, the normal imprisonment range would have been 108 to 135 months. At that point the following exchange occurred:
THE COURT: And I believe with that we bring the situation down to a disagreement at this point strictly to that of how much of a downward departure is appropriate to grant. If I am wrong in that statement, let me know.
[GOVERNMENT]: I think that is probably correct, Your Honor.
THE COURT: Okay. With that, then, Counsel, do either of you have any comments to make?
[DEFENSE COUNSEL]: If I may, Your Honor?
THE COURT: Certainly....
DEFENSE COUNSEL: [W]e have narrowed the issues, Judge. The question here is the government has made their motion pursuant to 5kl.l [sic] and pursuant to 18 U.S.C. 3553(e), which permits this court to depart below the guidelines, but also the mandatory minimum.
Sentencing Tr. at 3-4. Defense counsel did not mention Goodwin’s objections to the calculation of the drug quantity attributable to him; rather, he proceeded to present an argument in favor of a substantial downward departure. Before imposing the final sentence, the court inquired: “Counsel, are there any additional matters to come to the court’s attention before sentence is imposed?” Both lawyers responded with, “nothing.” The court adopted the government’s recommendation for a six-level departure and sentenced Goodwin to a term of imprisonment of 57 months.
On appeal, Goodwin argues that the court abused its discretion in sentencing him. He also contends that his conviction and sentence subjected him to double jeopardy because of an earlier civil forfeiture of $1,500 and a cellular telephone.
DISCUSSION
A. Sentencing
Goodwin challenges his sentence on three grounds: (1) the court failed to hold an evi-dentiary hearing based on Goodwin’s objections to the presentence report; (2) the court did not consider the “safety valve” provision of the Violent Crime Control Act, 18 U.S.C. § 3553(f); and (3) imposition of the 57-month sentence created an unwarranted disparity in punishment between Goodwin and Brous-seau.
First, the court was not required to hold an evidentiary hearing in this case before imposition of sentence. Although Rule 32(c)(1) of the Federal Rules of Criminal Procedure requires a sentencing court to rule on any unresolved objections to the presen-tence report, the court determined that Goodwin waived any outstanding objections he may have had to the presentenee report. After sentencing, the court issued a Statement of Reasons for Imposing Sentence in which it noted, “[although the Defendant has objected to certain portions of the PSI, he does not pursue those objections in light of the Government’s Motion for Downward Departure.” The court specifically gave Goodwin’s lawyer at least two chances to raise any issues he had in addition to the extent of the downward departure. Goodwin completely failed to pursue his objections, much less request an evidentiary hearing as required by Local Rule 83.10(f). The court did not abuse its discretion by determining drug quantity attributable to Goodwin without an evidentiary hearing.
Second, Goodwin cannot look to the “safety valve” provision of the Violent Crime Control Act, 18 U.S.C. § 3553(f), for any additional relief. For certain drug offenses for which the mandatory minimum sentence is greater than the applicable guideline sentence, the “safety valve” provision directs the court to impose sentence in accordance with the applicable guideline without regard to any statutory minimum if the court finds that the defendant meets specific mitigating criteria. In this case, however, the court departed below both the mandatory minimum of five years and the applicable guideline range.[*91] The “safety valve” provision affords Goodwin no further sentencing benefit.
Third, Goodwin’s claim that his 57-month sentence creates unwarranted disparity between his punishment and that of Brousseau lacks merit. Brousseau was sentenced by another court to 18 months incarceration after she pleaded guilty to one count of conspiracy to possess with intent to distribute methamphetamine. Both Goodwin and Brousseau cooperated with law enforcement agencies and received downward departures at sentencing for their respective cooperation. In essence, Goodwin now challenges the relative extent of the courts’ downward departures. We have repeatedly held that the extent of a downward departure is unre-viewable on appeal. United States v. Karam, 37 F.3d 1280, 1284 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995); United States v. Albers, 961 F.2d 710, 712 (8th Cir.1992) (citing United States v. Left Hand Bull, 901 F.2d 647 (8th Cir.1990)).
B. Double Jeopardy
Goodwin argues on appeal that his conviction violates the double jeopardy clause because of an earlier civil forfeiture of $1,500 and a cellular telephone. Goodwin did not raise this claim in the district court. Double jeopardy claims may not be raised for the first time on appeal. United States v. Garrett, 961 F.2d 743, 748 (8th Cir.1992). Goodwin’s double jeopardy claim, therefore, is not properly before this court, and we do not discuss its merits.
. Specifically, Goodwin objected on two separate but related grounds: (1) the total quantity of methamphetamine attributed to him as relevant conduct included unseized drugs; and (2) the gross amount of methamphetamine mixture should not have been converted to methamphetamine (actual).
. The court took only one exception to the recommendations of the presentence report. In the report, the probation officer recommended a two-level upward adjustment based on Goodwin's leadership role in the offense. Both Goodwin and the government objected to that portion of the report. Ultimately, the court declined to include the two-level enhancement in Goodwin's sentence. Sentencing Tr. at 3.