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Plea Agreements (§ 6B)
United States v. Adame-Hernandez
2014 WL 4057045 (7th Cir. 2014)
District court could not withdraw defendant’s guilty plea; defendant did not breach plea agreement
The defendant, along with numerous other defendants, was charged with a criminal drug
conspiracy as well as cocaine distribution. After a superceding indictment, he plead guilty under Rule 11(c)(1)(C), and agreed to an offense level of 38, resulting in a sentencing range of 188 to 235 months. The parties also agreed that a sentence of 204 months was appropriate. The PSR recommended that the defendant be found responsible for more than 150 kilos of cocaine, resulting in a base offense level of 38. The defendant objected to the allegation in the PSR that he personally delivered over 150 kilograms of cocaine. At sentencing, the governmen argued, without prior notice, that the defendant’s objection was a breach of the plea agreement. After much argument by both sides, the district court determined that the 204-month sentence was “not consistent with the other sentences that have been meted out given the relative culpability of the defendants,” and also determined that the defendant had breached the plea agreement. The court rejected the plea agreement and set the case for trial. A second superceding indictment was issued and the defendant pled guilty to two counts. The PSR calculated a sentencing range of 262 to 327 months and the district court imposed a sentence of 300 months. On appeal, the defendant sought specific performance of the first plea agreement. The Seventh Circuit explained that once a district court accepts a guilty plea, Rule 11 governed the withdrawal of that plea. “Nothing in Rule 11 authorizes a district court to withdraw a defendant’s guilty plea for him. Thus, where the district court has accepted a guilty plea but rejects the plea agreement, the only course available for the district court . . . is to advise the defendant of his rights, including the right to withdraw the guilty plea. It becomes the defendant’s choice whether to stand by his plea or withdraw it. Nowhere does Rule 11 provide that the district court may dictate this choice.” Here, the district court did not give the defendant the choice to stand by his plea or withdraw it. “The district court had no authority under Rule 11 to withdraw [the defendant’s] plea for him. It therefore abused its discretion in doing so.” The court further found that the defendant’s objections to the original PSR did not amount to a breach of the plea agreement. The defendant’s “objection to the assertion that he personally distributed over 150 kilograms of cocaine did not jeopardize the calculation of the drug quantity for which he could be held accountable. Nor was his objection inconsistent with his agreement that his base offense level was 38. . . . Furthermore, [his] position that he did not personally distribute 150 kilograms of cocaine did not violate any stipulation in the written plea agreement. That the government had a witness who would testify at trial that he personally received more than 150 kilograms of cocaine from [the defendant] is beside the point.” The case was remanded for the imposition of a sentence of 204 months, as agreed in the first plea agreement.
Probation/Supervised Release
(Chapter 7)
United States v. Johnson
2014 WL 4211065 (7th Cir. 2014)
New written conditions vacated as inconsistent with prior oral order
The defendant was charged in a single-count indictment for being a felon in possession of a
firearm. A jury found him guilty and he was sentenced to 108 months and a three-year term of
supervised release. The court orally announced several conditions for the supervised release. Later, the district court entered a written judgment that included additional conditions for supervised release. On appeal, the defendant argued that any additional conditions provided in the court’s written judgment should be vacated because they conflicted with the unambiguous oral pronouncement at his sentencing hearing. The Seventh Circuit agreed, stating: “It is well-established in this circuit that when there is a conflict between an oral and later written sentence, the oral judgment pronounced from the bench controls. If the oral version is unambiguous, there is no need to look beyond the oral version for any clarification from the written version. The written version is thus a nullity, not requiring further discussion.” Here, the district court unambiguously announced several specific conditions of supervised release at sentencing and did not include any statement as to whether other standard conditions would apply. “We conclude that the court exercised its discretion in selecting only some of the discretionary conditions to impose on [the defendant].” Accordingly, “any new conditions imposed in the later written judgment are inconsistent with the court’s oral order and must be vacated.”
Reasonableness Review
United States v. Dautovic
2014 WL 3953989 (8th Cir. 2014)
Sentence of 20 months substantively unreasonable
The defendant and co-defendant, both police officers, stopped a car for failing to yield an
emergency vehicle. The driver, Evans, was pepper sprayed and dragged out of the car. The officers then became aware of Evans’s boyfriend Bonds, who was riding in the back seat. Bonds was pepper sprayed when he attempted to get out of the car, then beaten by both officers. Bonds suffered a broken right arm, broken left hand, and cuts to his head. Evans and
Bonds were charged interfering with a police officer and Bonds was also charged with assault. At their trial, the defendant and co-defendant offered perjured testimony. Evans and Bonds were both acquitted. The defendant was charged with using excessive force against Bonds and obstructing justice and was found guilty of both counts after a four-day jury trial. The PSR calculated a sentencing range of 151 to 188 months, which included, among others, a six level enhancement a six-level enhancement because the offense was committed under the color of law under §2H1.1(b)(1). The district court refused to apply one of the enhancements recommended by the PSR and came up with a sentencing range of 135 to 168 months. The district court rejected the advisory range, specifically questioning the color-of-law enhancement, remarking that the enhancement “adds 65 months simply because it was under color of law” and comparing the quick increase in the recommended sentence to the child pornography guidelines. The district court considered the defendant’s sentencing memo that included statistics from the Sentencing Commission concerning civil rights offenses for the years 2008 to 2012. These numbers showed an average length of sentence ranged from 22.5 months to 39.1 months (mean) and from 8 months to 14.5 months (median). The court ultimately imposed a sentence of 20 months. The government appealed, claiming that the sentence was unreasonable. The Eighth Circuit agreed, finding that the defendant’s “offense conduct was egregious. A police officer beat an innocent victim with a dangerous weapon, causing serious bodily injury and permanent physical damage. He arrested Bonds and Evans and then wrote a false police report that caused them to be charged with crimes. At Bonds and Evans’s trial, where they were found innocent, [the defendant] committed perjury” [while he] maintained throughout his trial that his actions . . . were reasonable and that his police report was sloppy, not intentionally falsified.” The downward variance from the bottom of the guidelines range was 115 months. “The district court’s justification for the variance fails to support the degree of the variance in this case. To the extent the district court tried to avoid unwarranted sentence disparities by basing [the defendant’s] sentence on the average sentence imposed for civil rights violations, we are not convinced that the U.S. Sentencing Commission surveyed defendants whose records and offense conduct were similar to [this offense.]” “When the totality of the circumstances is considered, a variance from the Guidelines range of 135 to 168 months to a 20-month sentence is unreasonably lenient.”
United States v. Hayes
2014 WL 3906471 (11th Cir. 2014)
Sentence of probation was substantively unreasonable
The defendant ran a successful computer software company that sold educational software to the Alabama Department of Postsecondary Education (“ADPE”). Starting in 2002, he decided to increase is company’s chances of being profitable by rigging the competitive bid processes with ADPE. Over the next four years, he paid over $600,000 in bribes to the Chancellor (Johnson) of the ADPE, as well as his family, and his friends, including payments toward the construction costs of Johnson’s home and legal services to Johnson’s son for work that was never
provided. During that time the defendant’s company received more than $14 million in gross income from the ADPE, from which it realized a profit of approximately $5 million. The federal government began investigating the corruption and subpoenaed the defendant’s bank records. After that the defendant agreed to cooperate by permitting his office and vehicle to be wired for audio and video and personally wearing a recording device to tape meetings with several targets of the investigation. He was ultimately charged with bribery and money
laundering charges and pled guilty to both. The PSR calculated a total offense level of 33, resulting in an guidelines range of 135 to 168 months. The government recommended a substantial assistance departure under §5K1.1, a decrease from 33 to 25, with a sentencing range of 57 to 71 months, then argued for a 60-month sentence. The district court granted the §5K1.1 motion, but departed more, finding that a level of 22 and a sentencing range of 41 to 51 months was appropriate. After hearing argument regarding the §3553 factors, and
expressing concern over “unwarranted sentencing disparity,” the district court varied downward to a sentence of three years’ probation, with six to twelve months of home confinement. On appeal, the only argument the government made was that the sentence was substantively unreasonable. The Eleventh Circuit agreed, holding that the district court “committed a clear error of judgment in balancing the §3553(a) factors, and that its downward variance to probation produced a sentence that was outside of the range of reasonable sentences permitted by the record,” citing United States v. Crisp, 454 F.3d 1285, 1289-90 (11th Cir. 2006). Regarding disparity, the court pointed out that the district court never explained what unwarranted sentencing disparity would result if [the defendant] were sentenced to some term of imprisonment” and statistics provided by the probation office did not reveal any such unwarranted sentencing disparity among similarly situated individuals. The defendant in this case “did not just give a one-time gratuity to a local zoning inspector to expedite a building permit for a pool. He paid over half a million dollars in bribes, over a four-year period, to a high-ranking Alabama official so that his company could continue to receive lucrative government contracts – efforts which were rewarded by a corporate bottom line that got fatter by $5 million – and for that he received probation. As corruption cases go, this was bribery writ large, and on this record the district court’s significant variance down to probation cannot stand.”
Crime of Violence
United States v. Martinez
2014 WL 3866580 (1st Cir. 2014)
Massachusetts assault and battery not categorically a crime of violence
After a traffic stop, the defendant was removed from the vehicle and officers found a loaded firearm in his waistband. The defendant pled guilty to being a felon in possession of a gun. The PSR recommended a base offense level of 20 pursuant to §2K2.1(a)(4), based on a 2010 Massachusette conviction for assault and battery, under Mass. Gen. Laws ch. 265, §13A, claiming it was a crime of violence, as defined in §4B1.2(a). This resulted in a sentencing range of 70 to 87 months. Without the crime of violence enhancement, the range would have been 37 to 46 months. The district court adopted the PSR and imposed a sentence of 70 months. On appeal, the defendant argued that his base offense level should have been 14 because the
assault and battery conviction was not a crime of violence. The First Circuit reversed, finding that a review of the allowable documents merely showed that the defendant admitted to striking a person, which can occur without intent. There was nothing that showed the defendant struck the person intentionally and forcefully. “[W]e cannot say with the required certainty that he has been convicted of an offense that has the required element of intent to qualify as a crime of violence.” The court also rejected the government’s alternative argument that
the defendant’s separate 2009 conviction for simple assault under Mass. Gen. Laws ch. 265, §13A, qualified as a crime of violence. “[A]s to each offense, the government asks us to resolve serious, lingering doubts in its favor and against the defendant, by relying on hunches as to what we think [the defendant] actually did. The Supreme Court, wary of such forays beyond the narrow scope of defining the elements of an offense, has demanded substantially more certainty in the application of the categorical approach than the government’s analysis can afford. See, e.g., Taylor v. United States, 495 U.S. 575, 599-600 (1990). For that reason, and for others here identified, we observe quite simply that where state law and the Shepard documents leave open a plausible and realistic possibility that the defendant’s prior conviction was for an offense whose elements do not meet the applicable definition of recidivist conduct, we cannot simply presume that the actual conduct qualified.”
Post-Conviction
United States v. Light
2014 WL 3811001 (7th Cir. 2014)
Prisoner allowed to challenge conviction and sentence in §2241 proceeding; relief denied
In 2003, the defendant was convicted in Minnesota federal district court on one count of
firearm possession by a felon. The PSR suggested that he should be treated as an “armed career criminal” based on a conviction for criminal vehicular operation resulting in substantial bodily harm (“criminal vehicular operation”), a third-degree burglary, and a third-degree controlled substances crime. The PSR also showed a prior felony conviction for fleeing a peace officer in a motor vehicle. The ACCA enhancement increased the sentencing range of 120 to 150 months, to 235 to 293 months. The district court sentenced the defendant to 235 months without specifying which three convictions supported the ACCA finding. After an unsuccessful direct appeal of his conviction and sentence, the defendant challenged the ACCA enhancement in a §2255 petition, which was denied. After the Supreme Court decided Begay v. United States, 553 U.S. 137 (2008), the defendant filed a pro se habeas petition under 28 U.S.C. §2241, arguing that the petition was allowed under “savings clause,” of 28 U.S.C. §2255(e). His petition contended that in light of Begay, he was entitled to a sentence reduction because the criminal vehicular operation conviction did not qualify as a violent felony under the ACCA. The district court dismissed the petition and the defendant appealed. The “threshold question” was whether the defendant qualified for the savings clause. The Seventh Circuit set out three conditions that a prisoner must meet: 1) relying on a “statutory-interpretation case,” rather than a “constitutional case”; 2) relying on a retroactive decision that he could not have invoked in his first §2255 motion; and 3) the “sentence enhancement . . . have been a grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding.” In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998). The first and third conditions were not at issue because the court had previously found that Begay was a statutory interpretation case, see Brown v. Rios, 696 F.3d 638 (7th Cir. 2012), and that misapplication of enhancements such as the career offender guideline were “fundamental sentencing defects.” See Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013). The court found that because Begay had not been decided by the time of the defendant’s first §2255 petition, the third condition was met. “Binding precedent at the time of [the defendant’s] initial §2255 motion barred his current claim that his criminal vehicular operation conviction is not a violent felony under the ACCA.” Because the defendant met the three factors, he was eligible to file a petition for habeas relief under the savings clause of §2255(e). Proceeding to the merits of his claim, the court found that he was not eligible for relief because, although the intervening changes in the law made one of his prior predicate offenses for the ACCA enhancement no longer applicable, the prior conviction for fleeing a peace officer in a vehicle did qualify as a predicate offense. At the time of his original sentencing, the Minnesota conviction for fleeing a peace officer in a vehicle was not considered a violent crime, but now it would be considered one, under Sykes v. United States, — U.S. —-, —-, 131 S. Ct. 2267 (2011). The defendant argued that considering the fleeing offense now amounted to a due process violation. “This antiretroactivity argument is even less persuasive in the context of this case, as [the defendant] is simultaneously attempting to benefit from a retroactive change in the law. We cannot see why [the defendant] is entitled to a one-way ratchet, subject only to changes in law that benefit him but immune from changes in law that are not helpful.” The decision of the lower court was affirmed.
Miscellaneous Issues
United States v. Foster
2014 WL 4235133 (6th Cir. 2014)
Vacatur of two counts did not warrant remand to increase sentence for remaining counts
After the police attempted to stop the defendant’s truck, he jumped out and fled on foot. The police searched his truck and found a pistol, 225.8 grams of cocaine, and a Bryco Jennings pistol on the ground nearby. Later, it was determined that the defendant
had been involved in a robbery of a cocaine supplier a week before, which was the source of the drugs. The final superseding indictment charged him with 1) conspiring to distribute/possess cocaine; 2) possessing with intent to distribute 500 grams or more of cocaine “on or about January 29, 2006,” 3) possessing a firearm in furtherance of the drug trafficking charged in Count 2; 4) possessing cocaine on February 5, 2006, with intent to distribute; 5) possessing a firearm on February 5, 2006, in furtherance of the drug trafficking crime charged in Count 4; and 6) possessing, as a previously convicted felon, the Bryco Jennings pistol found outside the truck and the pistol found inside the truck on February 5, 2006. A jury convicted him on all counts. At sentencing, the defendant requested a 30- year sentence for the firearm charges, and a five-year sentence (the statutory minimum) for the other offenses. The district court refused, stating that it would be inappropriate to look at the 30 years plus another five years as sufficient, because it would require the court “to ignore the seriousness of the drug charge and the conviction” in the related counts. After considering the 18 U.S.C. §3553(a) factors, the district court sentenced the defendant to a total of 622 months: 262 months on Counts 1 and 2, and 120 months on Counts 4 and 6, to be served concurrently; and consecutive terms of 60 and 300 months, respectively, for Counts 3 and 5. On appeal, the parties agreed that Counts 4 and 5 had to be vacated on double jeopardy grounds, since those Counts duplicated Counts 2 and 3, respectively. The Sixth Circuit explained that under 28 U.S.C. §2106, it had the discretion to issue a general or a limited remand for re-sentencing without the dismissed counts. The government argued that the remand should be in a way that would permit the district court to increase the sentence on the four remaining counts. The defendant opposed any remand that would involve resentencing or reconsideration of the remaining sentence. The appeals court first determined that a remand to permit an increase in the sentence “for the four remaining counts is not warranted here. Vacatur of Count 4 does not afford a coherent basis for increasing the sentence for the remaining counts, because the sentence for Count 4 ran concurrently with three other sentences of equal or greater length.” “While there might be some intuitive appeal to reducing the overall length of imprisonment when one of several concurrent sentences is reversed, there is nothing that could support increasing the punishment for the remaining counts.” As to the vacatur of Count 5, and the accompanying, mandatory consecutive 25-year sentence, the court also found that a remand increasing the sentence for the remaining counts was not necessary. Had the district court taken into account the consecutive sentence for Count 5 by imposing a shorter sentence for the drug and conspiracy counts, then remand might “make sense.” However, “[b]ecause the district court explicitly declined to take [the defendant’s] sentence for Count 5 into account when sentencing [him] for the remaining counts, vacatur of Count 5 cannot be the basis for revisiting the sentence imposed for the remaining counts.”
Cases in this Issue
United States v. Adame-Hernandez, 2014 WL 4057045 (7th Cir. 2014)
United States v. Campbell, 2014 WL 4116491 (8th Cir. 2014)
United States v. Dautovic, 2014 WL 3953989 (8th Cir. 2014)
United States v. Domnenko, 2014 WL 4056536 (7th Cir. 2014)
United States v. Foster, 2014 WL 4235133 (6th Cir. 2014)
United States v. Freeman, 2014 WL 4056553 (3rd Cir. 2014)
United States v. Hayes, 2014 WL 3906471 (11th Cir. 2014)
United States v. Johnson, 2014 WL 4211065 (7th Cir. 2014)
United States v. Light, 2014 WL 3811001 (7th Cir. 2014)
United States v. Martinez, 2014 WL 3866580 (1st Cir. 2014)
United States v. McLaurin, 2014 WL 4116496 (4th Cir. 2017)
United States v. Napolitan, 2014 WL 3843971 (3rd Cir. 2014)
United States v. Sullivan, 2014 WL 4235414 (7th Cir. 2014)
United States v. Zheng, 2014 WL 3906492 (7th Cir. 2014)
