United States of America v. Derrecol Jennings

United States Court of Appeals
For the Eighth Circuit
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No. 23-3546
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United States of America
Plaintiff - Appellee
v.
Derrecol Jennings
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 25, 2024
Filed: February 10, 2025
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Before SMITH, ERICKSON, and STRAS, Circuit Judges.
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SMITH, Circuit Judge.
Derrecol Jennings pleaded guilty to one count of illegally possessing a
firearm, in violation of 18 U.S.C. § 922(g)(1), in exchange for the parties’ joint
recommendation that Jennings receive 40 months’ imprisonment. The district court1
1 The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.

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sentenced Jennings to 54 months’ imprisonment. Jennings argues that the
government breached the plea agreement by informing the court at sentencing that
it made a mistake calculating Jennings’s criminal history score when negotiating the
joint recommendation. He also argues that his 54-month sentence was substantively
unreasonable. We affirm.
I. Background
On November 13, 2020, St. Louis police officers pulled Jennings over for
having improperly registered plates on the vehicle. A record check revealed Jennings
had active municipal arrest warrants and past felony convictions. Jennings informed
officers of a gun under the middle seat, and the officers found a loaded semi-
automatic pistol and magazines with ammunition.
Jennings was later indicted on one charge of illegally possessing a firearm, in
violation of 18 U.S.C. § 992(g)(1). Jennings and the government entered into a plea
agreement. In it, Jennings agreed to plead guilty in exchange for the parties’ “joint
recommendation that Defendant be sentenced [to] forty (40) months imprisonment.”
R. Doc. 79, at 2.
Jennings’s criminal history included an armed robbery committed when he
was 16 in 1993. In that incident, Jennings put a gun to the temple of a victim and
shot the victim in the back as the victim attempted to flee. Jennings was convicted
on 6 felony counts and sentenced to 30 years’ imprisonment. While incarcerated,
Jennings received at least 75 conduct violations, including assaulting another inmate,
threatening to kill a cellmate, and exposing himself to a female corrections officer.
In 2010, Jennings was paroled at the age of 32. While on parole, Jennings incurred
multiple convictions for drug offenses and tampering with a motor vehicle. He also
received numerous drug-related parole violations for failure to report, failure to
comply, and failure to complete substance abuse treatment courses.
When Jennings was indicted in 2021 for the instant offense, he was granted
conditional pretrial release. The relevant condition prohibited him from using or

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unlawfully possessing narcotics or controlled substances. While on release, Jennings
received ten conduct violations for missing drug tests and testing positive for
controlled substances, including cocaine and fentanyl. During this time, Jennings
also received a comprehensive mental health assessment that diagnosed him with
schizophrenia, PTSD, depression, and generalized anxiety disorder. The district
court revoked Jennings’s bond in April 2023.
The PSR determined that Jennings’s total offense level was 17 and that his
criminal history score was 11, putting him in criminal history category V with a
Guidelines range of 46 to 57 months. Notably, when the parties negotiated the joint
recommendation, the government erred in calculating Jennings’s criminal history
score. The error put him in category IV with a Guidelines range of 37 to 46 months.
The PSR prepared by the probation office noted several sentencing factors under
18 U.S.C. § 3553(a) that the district court may wish to consider if it wanted to
impose a sentence outside the Guidelines range. The PSR, however, did not
recommend nor suggest a downward variance from the properly calculated
Guidelines range.
At the sentencing hearing, the district court adopted the PSR, explained the
§ 3553(a) factors, and heard defense counsel’s argument. The court invited the
government to address the sentencing factors, but the government declined to make
any additional statements with respect to sentencing and asked the court to accept
the joint recommendation. The court then asked the government why it
recommended 40 months, a downward variance from the Guidelines range of 46 to
57 months, despite Jennings’s numerous bond violations.
THE COURT: Let me just ask you this, I guess I’m
troubled by all of the violations while he was on pretrial
release. And honestly, it is hard for me to understand how
there could be a recommendation for a downward variance
given all of those violations of bond.

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GOVERNMENT: Well, your Honor, to be candid with the
Court, when we negotiated this 40 month
recommendation, I did not account for the additional two
points under Section 4A 1.E—I believe it is, that the
Defendant was assessed for the crime that he committed
in 1994. I counted for the three points, but not the
additional two. So my understanding is that it was a
mistaken assumption, a lesson learned on my part.
THE COURT: I’m not trying to go back into those
calculations, but just tell me, you know, I guess
fundamentally, it is hard for me to understand the
recommendation for a downward variance for all of the
bond violations.
GOVERNMENT: I appreciate that. The bond violations
consisted of all substance abuse violations. And since his
1994 crime, the Defendant has not been convicted of any
crimes of violence. So I regard his violations while on
bond to represent primarily that he may be a danger to
himself, more than to others, but I absolutely appreciate
the Court’s concerns regarding those, and—
THE COURT: Again, I understand that, I suppose. Again
here today, the Government is recommending a sentence
of 40 months; is that correct?
GOVERNMENT: That’s right, your Honor.
R. Doc. 100, at 11–12. After giving Jennings and his counsel an opportunity to speak,
the court noted the substantial weight it generally accorded joint recommendations.
The court, however, refused to accept this joint recommendation based upon its
consideration of the § 3553(a) factors and Jennings’s pattern of conduct, parole
behavior, and bond violations. The court concluded that these considerations
demonstrated that Jennings was not amenable to supervision and unlikely to be law
abiding. Consequently, the court imposed a 54-month sentence, which it found
appropriate given the sentencing factors and objectives.

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II. Discussion
Jennings argues, for the first time on appeal, that the government breached the
plea agreement by informing the court that the joint recommendation for a
downward variance was based on a mistaken calculation of Jennings’s criminal
history score. Additionally, he argues that the 54-month sentence is substantively
unreasonable because the district court committed a clear error of judgment in
weighing the § 3553(a) factors.
A. Breach of the Plea Agreement
Because Jennings did not raise this issue below, we review the issue for plain
error. See United States v. Baker, 674 F.3d 1066, 1068 (8th Cir. 2012). To find plain
error, we must find “(1) error, (2) that is plain, and (3) that affects substantial rights.”
Id. (quoting United States v. Lovelace, 565 F.3d 1080, 1087 (8th Cir. 2009)). If those
elements are met, the “error may be remedied ‘only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’” Id. (quoting Lovelace, 565
F.3d at 1087).
Jennings contends that the government breached the plea agreement when it
explained its Guidelines-range miscalculation to the district court. He asserts that the
admission of error was an end-run around the agreement’s terms. Jennings contends
that the statement eliminated the parties’ express agreement and, in essence, urged
the district court to ignore it. The government counters that there was no breach, and
it kept its end of the bargain by asking the court to accept the joint recommendation.
Upon review, we conclude that the government did not breach the plea agreement.
Moreover, even if there was a breach, we also conclude that any breach that may
have occurred did not affect Jennings’s substantial rights.
“When a guilty plea is induced by an agreement, the government must abide
by its terms.” Lovelace, 565 F.3d at 1087. This court requires “meticulous fidelity
to the plea agreement.” United States v. Brown, 5 F.4th 913, 916 (8th Cir. 2021).
“Although a less than enthusiastic recommendation will not ordinarily constitute a
breach, the government is obligated to make the recommendation to the court.”

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United States v. Jeffries, 569 F.3d 873, 876 (8th Cir. 2009). “If the government
actively advocates for an outcome different from the one it had promised to seek, it
breaches the plea agreement.” United States v. Beston, 43 F.4th 867, 873 (8th Cir.
2022) (cleaned up). Even when the government technically adheres to the plea
agreement, it could still breach the plea agreement when its conduct as a whole
“violate[s] the spirit of the promise.” United States v. Mitchell, 136 F.3d 1192, 1194
(8th Cir. 1998).
Here, the parties agreed to a joint recommendation for 40 months’
imprisonment. At sentencing, the government first asked the court to accept the joint
recommendation. When the court asked how it could recommend a downward
variance given the bond violations, the government informed the court of its criminal
history miscalculation. The court chose to focus on Jennings’s bond violations rather
than the Guidelines calculations. As directed by the court, the government defended
its downward variance recommendation by suggesting that a variance could be
appropriate because Jennings’s bond violations were non-violent. The court
interrupted the government’s argument in favor of the downward variance to ask if
the government was recommending 40 months’ imprisonment, and the government
reiterated its support for the joint recommendation. Jennings acknowledges that the
government made the promised recommendation for 40 months’ imprisonment.
Nonetheless, Jennings argues that the government’s conduct violated the spirit of the
agreement by encouraging the court to reach a result at odds with the joint
recommendation.
We conclude that the government did not breach the plea agreement. The
agreement required the government to make a joint recommendation for a sentence
of 40 months’ imprisonment. It met that requirement twice. The government only
mentioned its mistaken criminal history calculation in response to the court’s
skepticism toward the joint recommendation. This case has some similarity to United
States v. Zurheide, 959 F.3d 919 (8th Cir. 2020). There, the police arrested Zurheide
in a sting operation involving pre-arranged sexual contact with a minor. Id. at 921.
The parties agreed to recommend 70 months’ imprisonment, but the district court

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imposed an 84-month sentence. Id. at 920. The district court determined the
Guidelines range was 70 to 87 months and then expressed concern about the case’s
“particularly disturbing” facts. Id. at 921. The prosecutor acknowledged the court’s
factual observation but confirmed the government’s request for a sentence within
the Guidelines range, which was reflected by the 70-month recommendation. Id. On
appeal, Zurheide argued that the prosecutor’s acknowledgment of the court’s factual
observation effectively breached the agreement because she only “paid lip service”
to the promise and failed to argue for the joint recommendation. Id. We found no
plain error because the prosecutor made the agreed upon recommendation to the
court. Id. The district court expressed concern about the recommendation before the
prosecutor spoke, and our court concluded “[the prosecutor] was not obligated to
zealously defend the joint recommendation in the face of the court’s hostility.” Id.;
see also Baker, 674 F.3d at 1068 (finding no plain error when the government
promised to recommend a sentence at the low end of the Guidelines range and made
this recommendation at sentencing but acknowledged the bad facts behind the crime
because the government did make the recommendation and was not required to do
so enthusiastically).
As in Zurheide, the government fulfilled its plea-deal promise. The
government admitted its miscalculation only after the court expressed skepticism
toward the joint recommendation because of Jennings’s numerous bond violations.
But the government, nonetheless, continued to advocate for the parties’ joint
recommendation. Zurheide is, however, distinguishable because Jennings does not
argue that the government breached by failing to argue in support of the joint
recommendation but rather argues that it breached by informing the court of its
mistake, which cast doubt on the sincerity of the joint recommendation. That
distinction notwithstanding, Zurheide is still instructive because in both cases the
government kept its promise, and its comments were in response to the court’s
suspicion and inquiry into the joint recommendation.
Jennings contends that we should follow the persuasive precedent of a sister
circuit found in United States v. Warren, 8 F.4th 444 (6th Cir. 2021). There, the Sixth

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Circuit found breach of the plea agreement based on the breadth of the government’s
promise and the prosecutor’s suggestion that the government may have made a
different recommendation if it had other information. Id. at 448–49. We are not
persuaded to follow Warren here. We conclude that it was Jennings’s numerous
bond violations, not the government’s comments about its mistaken criminal history
calculation, that led the court to reject the joint recommendation. In any event, given
the district court’s expressed skepticism toward the joint recommendation before the
government committed the alleged breach of the plea agreement, Jennings cannot
show a reasonable probability that the district court would have imposed a more
favorable sentence without the government’s comments. On this record, we discern
no reversible error.
B. Substantive Reasonableness of the Sentence
Jennings also challenges the substantive reasonableness of his 54-month
sentence. We review the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc). “A district court abuses its discretion when it (1) fails to consider a
relevant factor that should have received significant weight; (2) gives significant
weight to an improper or irrelevant factor; or (3) considers only the appropriate
factors but in weighing those factors commits a clear error of judgment.” Id. (internal
quotation marks omitted). Jennings argues that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by discounting his recent mental
health diagnoses. Specifically, he argues that the district court erred when it said (1)
he was a danger to others, (2) he was unable to conform to the requirements of the
law, and (3) additional time in custody was necessary.
Jennings faced a Sentencing Guidelines range of 46 to 57 months’
imprisonment, and the district court imposed a 54-month sentence. We may apply a
presumption of reasonableness when the sentence is within the Guidelines range.
Gall v. United States, 552 U.S. 38, 51 (2007). “[T]he courts of appeals’
‘reasonableness’ presumption, rather than having independent legal effect, simply
recognizes the real-world circumstance that when the judge’s discretionary decision

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accords with the Commission’s view of the appropriate application of § 3553(a) in
the mine run of cases, it is probable that the sentence is reasonable.” Rita v. United
States, 551 U.S. 338, 350–51 (2007). The defendant has the “burden to rebut the
presumption and to show that the sentence should have been lower.” United States
v. Washington, 893 F.3d 1076, 1080 (8th Cir. 2018) (quoting United States v. Funke,
846 F.3d 998, 1000 (8th Cir. 2017)).
The district court did not abuse its discretion in imposing a 54-month
sentence. The district court adequately explained the sentence and the relevant
§ 3553(a) factors. It acknowledged Jennings’s letters, community support, and his
mental health and substance abuse problems. The court observed that Jennings was
16 at the time of his first offense but also noted that the offense was very serious. It
emphasized his 75 conduct violations in prison and his 10 bond violations, which
the court said was a continuing pattern of legal violations that demonstrated Jennings
was not amenable to supervision. The court discussed the purposes of sentencing
and emphasized the importance of promoting respect for the law to deter both
Jennings and others. In the end, when considering all § 3553(a) factors, the court
found the 54-month within-Guidelines sentence was appropriate to meet the
statutory sentencing objectives.
Jennings has not met his burden of showing the district court committed a
clear error of judgment in weighing the § 3553(a) factors. “A district court has wide
latitude to assign weight to [the] factors, and the district court may give some factors
less weight than a defendant prefers or more weight to other factors, but that alone
does not justify reversal.” United States v. Brown, 992 F.3d 665, 673–74 (8th Cir.
2021) (cleaned up). Jennings disagrees with how the district court applied and
weighed these factors. This is not enough to demonstrate an abuse of discretion. See
United States v. Neri, 73 F.4th 984, 989 (8th Cir. 2023). The district court did not
impose a substantively unreasonable sentence.

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III. Conclusion
For the foregoing reasons, we affirm the 54-month sentence imposed by the
district court.
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