United States of America v. Emmanuel Ellis Keller, a/k/a Mayo, a/k/a Manyo

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4026
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EMMANUEL ELLIS KELLER, a/k/a Mayo, a/k/a Manyo,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00061-FDW-2)
Submitted: February 23, 2011 Decided: April 11, 2011
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Emmanuel Ellis Keller appeals the sentence imposed
following his guilty plea, pursuant to a written plea agreement,
to conspiracy to distribute and possess with intent to
distribute fifty grams or more of crack cocaine, 500 grams or
more of cocaine, marijuana, and Ecstasy, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1), 846 (2006). The plea agreement
provided that neither party would seek an enhancement or
reduction from the applicable Guidelines range. We vacate the
district court’s judgment and remand for further proceedings.
The presentence investigation report recommended
enhancements based on Keller’s possession of a firearm and role
in the offense. Keller objected to the sentencing enhancements
as violative of the plea agreement. At the sentencing court’s
direction, the Government offered corroborating evidence of
Keller’s possession of a firearm. The Government also offered
evidence demonstrating Keller’s leadership role in the
conspiracy. Although the Assistant United States Attorney
(AUSA) stressed that the Government was not seeking the
enhancements, he summarized the evidence in favor of each
enhancement, as follows:
First, as to being a leader, . . . it’s very clear
from all co-conspirators that Mr. Keller was a ranking
member of the Hidden Valley Kings . . . .

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[H]e clearly has a leadership role within the gang.
That’s pretty much undisputed.
As to the shooting, Your Honor, the evidence is pretty
strong on this, Your Honor. First, we have Mr.
Bridges saying he always carries a 9mm with him. And,
of course, Your Honor, as I stated during the last
sentencing, we would not rely on that alone, but in
this case it is corroborated by independent evidence.
Evidence, that I might add, Your Honor, has been
developed over the prosecution of this case before and
after the Plea Agreement with Mr. Keller.
Over the investigation, it’s pretty clear from
multiple sources, including the victim [that Keller
was involved in shootings].
So the evidence is certainly beyond a preponderance of
the evidence in this case that Mr. Keller possessed a
gun in relation to drug trafficking, as you heard from
Mr. Bridges’ debrief that he always carries it and
he’s a drug dealer, and from the fact that they had a
drug dispute . . . and the shooting occurred as a
result.
So I believe that the totality of the evidence beyond
a preponderance of the evidence shows that Mr. Keller
did possess a gun in relation. There was a nexus to
the drug dealing. And, therefore . . . the two points
probably should be upheld.
Defense counsel again objected, arguing that the
AUSA’s statements advocated imposition of sentencing
enhancements in violation of the plea agreement. The court
found ample evidence supported the enhancements and specifically
ruled that the Government did not violate the plea agreement “by
merely providing the evidence supporting the Probation Office’s
recommendation” of the enhancements. The court applied the
enhancements and sentenced Keller to 293 months of imprisonment.
Keller noted a timely appeal.

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The Government has conceded its failure to uphold the
spirit of the plea agreement, and the parties have jointly moved
to remand for resentencing on Keller’s allegations of sentencing
error, breach of the plea agreement, and prosecutorial
misconduct. The Government alternatively requests dismissal of
the appeal based on Keller’s waiver of the right to appeal
included in the plea agreement.
Absent a breach of the plea agreement, an appeal
waiver should be enforced if the record shows the waiver is
valid and the challenged issue falls within the scope of the
waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005); United States v. Cohen, 459 F.3d 490, 495 (4th Cir.
2006). “When a claim of breach of a plea agreement has been
preserved, we review the district court's factual findings for
clear error and its application of principles of contract
interpretation de novo.” United States v. Lewis, F.3d ,
2011 WL 310805 at *3 (4th Cir. 2011) (internal quotation marks
and citation omitted). Because Keller preserved appellate
review by objecting to the sentencing enhancements, our review
is for harmless error. Id.
A concession of error on the part of the Government
does not end this court’s inquiry, as this court is “not at
liberty to vacate and remand for resentencing on the
Government’s concession of error alone.” United States v.

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Rodriguez, 433 F.3d 411, 415 n.6 (4th Cir. 2006). Rather “our
judicial obligations compel us to examine independently the
errors confessed.” United States v. Robinson, 460 F.3d 550, 558
n.7 (4th Cir. 2006) (internal quotation marks and citations
omitted). Courts have a vital interest in assuring that plea
agreements are adhered to and handled properly. Lewis, 2011 WL
310805 at *4. “When a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise must
be fulfilled.” Id. (quoting Santobello v. New York, 404 U.S.
257, 262 (1971)).
Despite reassurances to the contrary, the AUSA
specifically advocated for application of the enhancements when
he commented in detail on the strength of evidence supporting
the enhancements. We accordingly conclude that the Government
breached the plea agreement. That the breach may have occurred
while complying with the court’s directive for presentation of
corroborating evidence does not lessen its impact. Santobello,
404 U.S. at 262. Because Keller did not secure the benefit to
which he was entitled when the Government sought sentencing
enhancements, which the court applied, we find that the error
affected Keller’s substantial rights and was not harmless.
Lewis, 2011 WL 310805 at *7. We therefore do not enforce the
appeal waiver. Id. at *7 n.8.

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Accordingly, we grant the parties’ joint motion to
remand, vacate the sentence, and remand for resentencing. We
deny Keller’s motion for remand based on the Fair Sentencing Act
of 2010, Pub. L. No. 111-220, 124 Stat. 2372. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the material before the court and
argument would not aid the decisional process.
VACATED AND REMANDED

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