United States v. Kelly M. Clough

Defendant Kelly M. Clough appeals his conviction and sentence for unlawful possession of an unregistered firearm in violation of 26 U.S.C. § 5861 (d). Clough argues that the district court erred when it refused to compel the United States to fulfill an alleged promise to forego bringing federal firearms charges after Clough dealt with state charges arising from the same incident. In addition, Clough contends that the district court erred in concluding that it did not have the discretion to consider whether a downward departure was warranted on the basis that Clough suffered significant injuries when police shot him. Because we conclude that the United States and Clough never agreed on the terms of the agreement, we affirm the conviction. We hold, however, that the district court did have discretion to consider whether. a downward departure was warranted and thus remand this case for resentencing.

I. BACKGROUND

In March 2001, police officers shot Clough twice after he approached them with a shotgun. Clough was arrested after the incident, and the State of Washington filed charges.

In June 2001, soon after state charges had been filed, an Assistant United States Attorney…