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United States v. Creighton

United States Court of Appeals, Tenth Circuit

April 11, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
HAROLD CREIGHTON, Defendant-Appellant.

         APPEAL 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.

          Megan L. Hayes, Laramie, Wyoming, for Defendant-Appellant.

          Before HARTZ, BALDOCK, and HOLMES, Circuit Judges. [*]

          BALDOCK CIRCUIT JUDGE.

         Defendant 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 court.

         I.

         Defendant 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 5.[1] 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.

         Defendant 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 prosecutorial vindictiveness.

         II.

         Despite 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."[2]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 ...


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