United States of America v. Brennis A. Nesbitt

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2884
___________
UNITED STATES OF AMERICA
v.
BRENNIS A. NESBITT,
Appellant.
___________
On Appeal from the District Court of the Virgin Islands
(D.C. Criminal No. 04-cr-00077)
District Judge: Honorable Raymond L. Finch
___________
Submitted Under Third Circuit L.A.R. 34.1(a),
May 6, 2008
Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.
(Opinion Filed: June 4, 2008)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Following his guilty plea to one count of conspiracy to possess controlled
substances with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846, the District
Court sentenced Brennis Nesbitt to 17 and a half years of imprisonment followed by 5

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We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction1
pursuant to 18 U.S.C. § 3231.
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years of supervised release. Nesbitt challenges his sentence, alleging (1) that the District
Court failed to rule on his objection to an aggravating role enhancement in the pre-
sentence report (“PSR”) and (2) that the government breached his plea agreement by
requesting a higher sentence based on his role as a leader of the conspiracy. We conclude
that Nesbitt’s arguments are without merit. Therefore, we will affirm the sentence.1
I.
Because we write for the parties, we recite only the facts essential to our decision.
Nesbitt was indicted on February 26, 2004 for conspiracy to violate narcotics laws,
importation of controlled substances, possession with intent to distribute, the distribution
of controlled substances and with using a communication facility in the commission of
narcotics offenses. Specifically, the indictment charged that Nesbitt, along with other
individuals, imported controlled substances into the U.S. from St. Maarten and Anguilla
using female couriers. The couriers transported the cocaine in large Coleman coolers
filled with fish and ice. The government filed a second superseding indictment which
added 3 additional counts against Nesbitt for possession with intent to distribute. The
second superseding indictment also contained sentencing allegations that named Nesbitt
as an organizer and leader of a criminal activity that involved five or more participants. A
third superseding indictment was filed adding two co-defendants. However, the charges

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Nesbitt states in his brief that Fed. R. Crim. P. 32(c)(1) requires a sentencing2
court to rule on any unresolved objections in a pre-sentencing report. Appellant Br. at 8.
However, Fed. R. Crim. P. 32 was amended in 2000 and the current version of Fed. R.
Crim. P. 32(c)(1) only provides that the probation officer must conduct a pre-sentence
investigation and submit a report to the court before it imposes sentence unless an
exception as enumerated in the Rule applies. For purposes of addressing Nesbitt’s
argument, the relevant section of the current rule is Fed. R. Crim P. 32(i)(3)(B).
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against Nesbitt mirrored the second indictment and the sentencing allegations naming him
as an organizer were removed. Nesbitt pleaded guilty following the third superseding
indictment.
II.
We exercise plenary review when determining whether a district court resolved a
controverted issue pursuant to Fed. R. Crim. P. 32(i)(3)(B). United States v. Electrodyne
Sys. Corp., 147 F.3d 250, 251-52 (3d Cir. 1998). Federal Rule of Criminal Procedure
32(i)(3)(B) provides that the sentencing court “must-for any disputed portion of the
presentence report or other controverted matter-rule on the dispute or determine that a
ruling is unnecessary either because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” We enforce the Rule strictly, and2
“‘failure to comply with it is grounds for vacating the sentence.’” United States v. Corley
500 F.3d 210, 222 (3d Cir. 2007) (quoting Electrodyne Sys. Corp., 147 F.3d at 251-52).
The PSR recommended a 4-point base offense level increase for Nesbitt’s role as
an organizer in the conspiracy based on the offense conduct. Nesbitt filed objections to
the PSR, specifically objecting to the role enhancement. At sentencing, Nesbitt also

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requested a downward departure, in part, because he was not an organizer as asserted by
the government and because he pled guilty to the third superseding indictment only
because the reference to him as a leader was omitted. Nesbitt contends that the District
Court failed to expressly rule on his objection to the aggravating role enhancement in the
PSR. However, the transcript of the sentencing hearing unambiguously shows that the
District Court accepted the PSR as accurate and complete, ruled on Nesbitt’s objection on
the aggravating role enhancement and denied his request for a downward departure. The
District Court stated “although downward departure is a consideration in this case, . . . I
decline to grant a downward departure. . . . I cannot find that you were a minor
participant. You played a very significant role in the planning and execution of this
conspiracy.” (App. 173.) Based on this record, we conclude that the District Court did
not fail to comply with Fed. R. Crim. P. 32(i)(3)(B) and properly ruled on Nesbitt’s
objection to his role as a leader in the conspiracy.
III.
Finally, Nesbitt argues that the government violated his plea agreement by
“inducing [him] to believe [it] would not have a problem with a sentence within the range
indicated.” Appellant Br. at 14. Nesbitt further asserts that he only pleaded guilty after
the third superseding indictment deleted the sentencing allegation as to his role as a leader
and that the government’s subsequent attempt to seek an enhancement on this basis was a
violation of the plea agreement.

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In determining whether the Government has breached its plea agreement with a
defendant, we apply the de novo standard of review. United States v. Rivera, 357 F.3d
290, 293-94 (3d Cir. 2004). We must determine “‘whether the government’s conduct is
inconsistent with what was reasonably understood by the defendant when entering the
plea of guilty.’” United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998)
(quoting United States v. Badaracco, 954 F.2d 928, 939 (3d Cir. 1992)).
The terms of Nesbitt’s plea agreement were reduced to writing and executed by the
parties. In our review of the record, we observe that Nesbitt’s plea agreement did not
contain any express promise by the government to not seek an enhancement for his role or
to agree to a downward departure. To the contrary, the plea agreement specifically stated
that the Court was not bound to the Sentencing Guidelines but would take them into
account at sentencing. The plea agreement further provided that the District Court was
not limited to consideration of the facts and events provided by the parties and that there
were no other agreements between Nesbitt and the government. Thus, the government
seeking an enhancement for his organizer role, which the District Court found by
substantial evidence, was not inconsistent with the plea agreement or what Nesbitt should
have reasonably understood.
At the plea hearing, the District Court thoroughly questioned Nesbitt about the plea
agreement. During this hearing, the government and defense counsel agreed that the
realistic sentencing range was 11 years. However, it is clear that, at the plea colloquy, the

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judge explained at length that he could not tell Nesbitt the exact sentence that would be
imposed at the sentencing hearing. He also explained that the maximum sentence was life
with a minimum mandatory term of 10 years and that his sentence would depend on the
court’s consideration of the relevant sentencing factors. In light of this, Nesbitt agreed to
plead guilty. At the sentencing hearing, the District Court fully considered the factors set
forth in § 3553(a) and the pre-sentence report and determined that based on those factors
a sentence of 17 and a half years, which was at the bottom of the guideline range, was
appropriate. Under these circumstances, we find that the government did not breach the
plea agreement and that the District Court’s sentence was reasonable.
VI.
For the foregoing reasons, the judgment of sentence will be affirmed.

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