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United States v. Scott

United States Court of Appeals, Fifth Circuit

May 12, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
AKEIN SCOTT, also known as Keemy, Defendant-Appellant

         Appeals from the United States District Court for the Eastern District of Louisiana

          Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.

          PER CURIAM:

         Akein Scott and his brothers were members of the Frenchmen/Derbigny gang. On Mother's Day 2013, Akein and one of his brothers opened fire at a second-line parade in New Orleans, intending to kill a rival gang member. They shot the intended victim and 19 innocent bystanders. Akein was named in a 24-count Third Superseding Indictment charging racketeering, drug trafficking, and firearms conspiracies, as well as a host of violent offenses in aid of those conspiracies. Akein was also indicted for four separate shootings that occurred prior to the Mother's Day shootings.

         Before Akein pled guilty, the Government informed Akein about the uncharged murder of James Gould, unrelated to the Mother's Day shootings, which the Government believed to be linked to Akein's family. Akein denied having seen Gould. Akein's attorney told the Government that her client would plead guilty, though if the Government intended to introduce evidence of this murder as relevant conduct at sentencing, she would not advise him to plead guilty. The Government replied that it did not intend to introduce this evidence of the homicide, but emphasized that the investigation was ongoing and it could not guarantee that the investigation would not garner more evidence.

         Akein nevertheless pled guilty, pursuant to a written plea agreement, to RICO conspiracy (Count 1); conspiracy to distribute and possess with intent to distribute controlled substances (Count 2); conspiracy to use and possess firearms during, in relation to, and in furtherance of a crime (Count 3); four counts of assault with a dangerous weapon in furtherance of racketeering (Counts 7, 9, 11, and 13); and discharging a firearm during and in relation to a crime of violence and a drug trafficking crime (Count 19). In exchange for Scott's guilty plea, the Government agreed that it would move to dismiss six remaining counts in the indictment. The Government also agreed that it would not bring further charges for any other drug offenses committed prior to May 15, 2013, and gave Akein a three-level reduction in his guidelines offense level for acceptance of responsibility.

         Akein's plea agreement provided that, in determining an appropriate sentence, the district court had the authority and discretion to consider "any and all 'relevant conduct' that the defendant was involved in during the course of the conspiracy." The agreement further provided that the statements set forth therein represented the "defendant's entire agreement with the Government" and stated that there were no "other agreements, letters, or notations that will affect this agreement." Akein also waived his right to collaterally attack his sentence and waived his right to appeal the guilty plea, conviction, sentence, fine, supervised release, and any restitution imposed. He reserved, however, the right to appeal a sentence in excess of the statutory maximum and to bring a claim of ineffective assistance of counsel.

         Approximately two months after Akein entered his guilty plea, the Government filed a motion to consolidate the sentencing hearings of the Scott brothers. In that motion, the Government announced its intention to introduce evidence at sentencing that the Scott brothers murdered Gould in furtherance of the RICO and drug trafficking conspiracy. Akein opposed the motion to consolidate the sentencing hearings, but the district court nevertheless granted the Government's motion. Thereafter, the district court held an evidentiary hearing on the Mother's Day shootings and the murder of Gould to determine whether the Government could "show some basis for any enhancements to possible sentences." Akein filed, and the Government responded to, a sentencing memorandum objecting to the consideration of relevant conduct evidence.

         The PSR, which included Gould's murder as relevant conduct, calculated Akein's total offense level to be 45. With a criminal history category of I, the guidelines range of imprisonment was life. The district court overruled Akein's objection to the PSR's inclusion of the Gould murder as relevant conduct and stated that it would have imposed the same sentence even if it had sustained his objections. The district court sentenced Akein to life imprisonment on Count 1 and Count 2 and to concurrent 240-months terms of imprisonment on Counts 3, 7, 9, 11, and 13 as well as a 120-month term of imprisonment on Count 19, to be served consecutively to all other sentences. Akein timely appealed.


         Although Akein waived his rights to appeal and collaterally attack his conviction and sentence, a claim regarding "[a]n alleged breach of a plea agreement may be raised despite a waiver provision." United States v. Purser, 747 F.3d 284, 289 (5th Cir. 2014) (internal quotation marks omitted). An appeal waiver also does not bar an attack on the voluntariness of a plea. United States v. White, 307 F.3d 336, 343 (5th Cir. 2002).

         A. Breach of Plea Agreement

         Akein argues that the Government breached the plea agreement in presenting evidence of the Gould murder at sentencing after leading Akein to believe that it did not have, and would not present, evidence linking Akein to this murder. The Government denies breaching the plea agreement and contends that it never promised not to present evidence of the Gould murder as relevant conduct.

         This court reviews de novo a preserved claim that the Government breached the plea agreement. Purser, 747 F.3d at 290. The burden is on the defendant to prove a breach by a preponderance of the evidence. Id. In determining whether a breach occurred, this court decides "whether the Government's conduct is consistent with the defendant's reasonable understanding of the agreement." United States v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014) (internal quotation marks omitted). A defendant's subjective belief about the agreement's terms may not ...

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