630 F. App'x 501
6th Cir.2015Background
- Police used a confidential informant who conducted a controlled buy and multiple visits; informant observed Tippins packaging drugs in a utility room and bought 1.32 g of crack on June 26, 2013.
- A search warrant recovered heroin, marijuana, cocaine, drug-packaging tools, and firearms; Tippins had a pistol on his person at arrest.
- Initial and superseding indictments charged Tippins with felon-in-possession, possession with intent to distribute cocaine base, and carrying a firearm during a drug-trafficking crime; prosecutors initially avoided charging distribution to protect the informant.
- After the informant recalled Tippins carrying a revolver during the controlled buy, the government renewed plea offers and warned that failure to accept could lead to additional charges; Tippins rejected the plea and the government obtained a third superseding indictment adding distribution and an additional 924(c) count.
- A jury convicted Tippins on four of five counts; the district court sentenced him to 147 months (bottom of the Guidelines range).
Issues
| Issue | Tippins' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the third superseding indictment was a vindictive prosecution | Govt added charges to punish Tippins for rejecting plea | Prosecutor may threaten/add charges in plea bargaining; no punishment if defendant free to accept/reject | No vindictive prosecution; indictment lawful (affirmed) |
| Whether U.S.S.G. § 2D1.1(b)(12) enhancement (maintaining premises) applies | Enhancement improper because premises maintenance and primary drug-purpose not established | Tippins lived at and controlled the home/utility room used to cook, store, and package drugs; distribution was a principal use | Enhancement proper; two-level increase affirmed |
Key Cases Cited
- Bordenkircher v. Hayes, 434 U.S. 357 (permits more serious charges after failed plea bargaining when defendant free to accept or reject)
- Bragan v. Poindexter, 249 F.3d 476 (6th Cir. 2001) (vindictive prosecution requires objective evidence of punishment for asserting rights)
- United States v. Walls, 293 F.3d 959 (6th Cir. 2002) (addition of charges after plea bargaining failure not vindictive per se)
- United States v. DeJohn, 368 F.3d 533 (6th Cir. 2004) (post-plea-charge addition cannot alone establish vindictiveness)
- United States v. Johnson, 737 F.3d 444 (6th Cir. 2013) (§2D1.1(b)(12) applies where room used to store drugs for later distribution)
- United States v. Bell, 766 F.3d 634 (6th Cir. 2014) (enhancement proper where defendant lived and cooked/sold cocaine from home)