FROM THE UNITED STATES DISTRICT COURT (D.C. No.
2:15-CR-00101-SWS-5) FOR THE DISTRICT OF WYOMING
Christopher A. Crofts, United States Attorney, and Stephanie
I. Sprecher, Assistant United States Attorney, Casper,
Wyoming, for Plaintiff-Appellee.
L. Hayes, Laramie, Wyoming, for Defendant-Appellant.
HARTZ, BALDOCK, and HOLMES, Circuit Judges. [*]
BALDOCK CIRCUIT JUDGE.
Harold Creighton tells us his federal sentence of life
imprisonment for drug trafficking is the result of
prosecutorial vindictiveness in violation of the Fifth
Amendment's Due Process Clause. Supreme Court precedent
tells us otherwise. We exercise jurisdiction under 18 U.S.C.
§ 3742(a)(1) and affirm the sentence of the district
was indicted on one count of conspiracy to possess with
intent to distribute, and to distribute, 500 grams or more of
methamphetamine in violation of 21 U.S.C. §§
841(a)(1) & 846. Because Defendant had multiple prior
felony drug convictions, he qualified for a sentence
enhancement that would raise his statutory sentence on
conviction from "ten years or more" to "a
mandatory term of life imprisonment without release." 21
U.S.C. § 841(b)(1)(A). About four weeks before
Defendant's trial, on September 29, 2015, the prosecutor
emailed defense counsel. In the email, the prosecutor
summarized testimony the Government expected to elicit from
cooperating witnesses. The email concluded:
• I believe Mr. Creighton has information that could
prove helpful to law enforcement. However, time is of the
essence. I have included a proffer letter for your
client's consideration. I need to know if he wishes to
proffer [i.e., cooperate] by October 2nd, 2015.
• Mr. Creighton is eligible for a sentence enhancement
under 21 U.S.C. § 851. I am seeking permission from
management to file notice of said enhancement.
ROA Vol. II-Pleadings, at 105-09. In a second email dated
October 2, 2015, the prosecutor informed defense counsel that
she had received permission to file the § 851 notice of
a sentence enhancement and intended to do so on October
The prosecutor also indicated she would tender a plea offer
that would not account for Defendant's requested
cooperation, but reminded counsel: "I believe your
client has information that could assist the Government-if he
agrees to proffer and his information does substantially
assist the Government, we could negotiate a sentence
commensurate with his assistance." Id. at 110.
refused to cooperate with the Government or plead guilty.
Instead, he exercised his right to a jury trial. A jury found
Defendant guilty and, at the Government's behest and over
Defendant's objection, the district court sentenced him
to life imprisonment: "But the reality is, Mr.
Creighton, you have committed offenses that qualify you for
the enhancement that Congress has set forth. The notice was
provided timely. The underlying offenses qualify, and
pursuant to the United States law, a life sentence is
required." ROA Vol. III-Transcripts, at 29. On appeal,
Defendant asks us to quash the Government's
"Information Filed Pursuant to 21 U.S.C. §
851." This "Information, " filed as promised
on October 5, notified both Defendant and the district court
that if convicted of the pending charge, Defendant should
receive a sentence of life imprisonment. According to
Defendant, the "Information" resulted from
defense counsel's best efforts to convince us otherwise,
the doctrine of stare decisis, in particular Supreme
Court precedent, plainly governs our resolution of
Defendant's appeal. In view of such precedent, namely
Bordenkircher v. Hayes, 434 U.S. 357 (1978), and
United States v. Goodwin, 457 U.S. 368 (1982), we
have long recognized that to prevail on a claim of
prosecutorial vindictiveness, a defendant initially
"must establish either (1) actual vindictiveness, or (2)
a realistic likelihood of vindictiveness which will give rise
to a presumption of vindictiveness."United States
v. Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991). Here
Defendant can establish neither. The Supreme Court's
decision in Bordenkircher squarely precludes a
finding of actual ...