United States of America v. TOM ELLIOTT, III Tom Elliott

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-2108
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UNITED STATES OF AMERICA
v.
TOM ELLIOTT, III
Tom Elliott,
Appellant
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Appeal from the United States District Court
For the Middle District of Pennsylvania
D.C. No.: 00-cr-00119-2
District Judge: Honorable Yvette Kane
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Submitted Under Third Circuit LAR 34.1(a) May 7, 2002
Before: NYGAARD, ALITO, and ROSENN, Circuit Judges.
(Filed: May 21, 2002)
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OPINION OF THE COURT
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ROSENN, Circuit Judge.
The appellant, Thomas Elliott, III, pled guilty in November
States District Court for the Middle District of Pennsylvania to possession with
distribute a controlled substance in violation of 21 U.S.C. 841(a)(1). The co
sentenced the appellant to 140 months of imprisonment. His attorney filed a mot
withdraw as counsel and a supporting brief pursuant to Anders v. California, 386
738 (1967). As part of his plea bargain, Elliott agree to testify and did testi
Government witness against another defendant, John Watson, charged with possessi
with intent to manufacture and distribute crack cocaine.
Elliott’s sentencing range was 151-188 months. The Governme
downward departure motion because of Elliott’s assistance during the Watson tria
District Court granted the Government’s motion and sentenced Elliott to 140 mont
imprisonment. Disappointed in the extent of the downward departure, Elliott tim
appealed.
In his Anders brief, Elliott’s counsel noted two possible is
Elliott’s career offender status under the Sentencing Guidelines 4B1.1 was pro
second, whether the degree of the District Court’s downward departure was errone
Our review of the District Court’s legal interpretation and application of the s
guidelines is plenary. United States v. Torres, 251 F.3d 138, 144-45 (3d Cir. 2
Elliott contests his classification as a career offender. T
that based upon at least two prior qualifying convictions, Elliott qualified as
offender under the Sentencing Guidelines 4B1.1. Therefore, his offense level
enhanced to 32, and after subtracting three levels for acceptance of responsibil
total offense level was now 29. As a career offender pursuant to 4B1.1, his c
history category was automatically VI. Thus, his sentencing range was 151-158 m
Two of Elliott’s prior felony convictions fell within the applicable time period
4A1.2(e)(1) and otherwise satisfied 4B1.1. Elliott had been sentenced in 19
period of three years’ confinement for a robbery conviction, in 1985 for an assa

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conviction, in 1988 for an aggravated assault conviction, and several drug crime
thereafter. Thus, at least two prior felony convictions fell within the applica
period for 4A1.2(e)(1) and otherwise satisfied 4B1.1. Thus, Elliott was app
classified as a career offender. As such, his offense level of 29, criminal his
VI, and the corresponding sentence range of 151-188 months were not in error.
Therefore, counsel for Elliott did not err in concluding this issue to be withou
However, the more difficult issue arises out of Elliott’s co
during the Watson trial. Pursuant to the plea agreement, the Government filed a
under Sentencing Guidelines 5K1.1 seeking a departure from the Sentencing Guid
range of 151-158 months. The Government recommended a range of 70-87 months. T
District Court granted the Government’s motion but rejected the sentencing range
Instead, it departed downward from the minimum in the range by 11 months only.
We do not have jurisdiction to review the extent of the Dist
for substantial assistance to the Government. Torres, 251 F.3d at 145. Althoug
jurisdiction to review the degree of departure, Torres held that we do have juri
over sentencing errors based upon a mistake of law or an incorrect application o
Guidelines. Id. No doubt, the Government was aware of Elliott’s career offende
when it made its recommendation. Nonetheless, the Government urged the District
to reduce Elliott’s sentence by half. The only explanation available from the p
record regarding the degree of downward departure and the reason therefor appear
brief sentence in the District Court’s judgment.
A review of the transcript of the sentencing hearings would
regrettably defense counsel did not order the transcript, informing this court t
transcript was unnecessary for this appeal. In Torres, we held that in consider
departure for substantial assistance to the Government, the sentencing court not
conduct a qualitative, case-by-case analysis, but "also must examine section 5K1
enumerated factors." Id. at 147.
That is, when presented with a motion fo
judge must, at the very minimum, indicate his or her conside
section 5K1.1’s five factors in determining whether and to w
grant a sentencing reduction. Further, the sentencing judge
his or her consideration of any factors outside those listed
strongly urge the sentencing judges to make specific finding
each factor and articulate thoroughly whether and how they u
proffered evidence to reach their decision.
Id.
On the present record, without the benefit of the transcript
cannot determine whether the District Court satisfied this burden or otherwise c
errors of law. Thus, we will deny the motion of counsel for the appellant to wi
from this proceeding and direct that he produce the sentencing transcript and fi
supplemental brief on this issue within twenty-one days of notice that this opin
been filed. After receipt of the appellant’s supplemental brief, the Government
twenty-one days to respond. In the interim, this panel will retain jurisdiction
appeal.
TO THE CLERK:
Please file the foregoing opinion.
/s/Max Rosenn
Circuit Judg

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