Wednesday, February 03, 2010

Court Must Accept or Reject Entire (c)(1)(C) Agreement, May Not Accept Parts and Reject Others; Probably Goes for (c)(1)(A) Agreements, Too

United States v. Self, No. 08-40624 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)

Self finds the court confronting an issue of first impression in the Fifth Circuit: whether a court can accept or reject a Rule 11(c)(1)(C) plea agreement on a "piecemeal basis." Answer: no. And the reasoning appears to be equally applicable to (c)(1)(A) agreements.

Self was charged with two counts of bank robbery, and two 924(c) carrying counts. He hammered out a (c)(1)(C) agreement with the Government, which entailed a guilty plea to one bank robbery and one 924(c), dismissal of the remaining counts, and a sentence of 171 months (87 months for the bank robbery + 84 months consecutive on the gun count). Additionally, "Self waived the right to appeal 'on all grounds,' but reserved the right to appeal the failure of the district court to impose a sentence in accordance with the terms of the agreement." A magistrate judge took Self's guilty plea, and recommended that the district court accept the agreement. So far, so good.

But then—stop me if you've heard this one before—the probation officer threw a spanner in the works: "The PSR determined that Self was a career offender and recommended a career offender enhancement on [the bank robbery count] that raised the advisory guidelines range to 188 to 235 months. When the mandatory minimum of 84 months for [the gun count] was added, the resulting guidelines range was 272 to 319 months’ imprisonment." At sentencing:
The district court informed Self of his right to withdraw his guilty plea and that if he did not withdraw his plea, he might receive a sentence less favorable than that agreed to in the plea agreement. Self declined to withdraw his guilty plea. The district court reiterated that it would accept all of the plea agreement’s terms except the recommended sentence as to [the bank robbery count]. Self again stated that he did not wish to withdraw his plea. Self allocuted and his defense attorney requested the minimum sentence. The district court then sentenced Self to the minimum sentence of 188 months for [the bank robbery count], taking into account the career offender enhancement, and 84 months for [the gun count], resulting in a sentence of 272 months.

Self appealed his sentence. The Government raised the appeal waiver. The court said:
Because we conclude, infra, that the district court rejected the plea agreement in toto, Self’s waiver of rights in that agreement does not bar his appeal. [cites]. Even assuming Self’s appeal waiver was enforceable, its terms do not apply here. The plea agreement reserved Self’s right to appeal “the failure of the Court, after accepting the agreement, to impose a sentence in accordance with the terms of this agreement.” The 272 month sentence imposed by the district court exceeded the 171 month sentence stipulated to in Self’s plea agreement; the sentence was not “in accordance” with the plea agreement’s terms. There is no obstacle to Self’s appeal.

On to the substance: "Self argue[d] that he is entitled to a sentence reduction because the district court accepted the plea agreement but did not comply with its terms." But because "Self did not raise any objection to the proceedings at the sentencing hearing and he did not assert this argument as a basis for a sentence reduction in either of his post-hearing motions[,]" the court reviewed for plain error.

Before reaching the error prong, the court first had to decide whether the district court had accepted the plea agreement but failed to comply with its sentencing terms (as Self argued), or whether it had rejected the plea agreement (the Government's position). Examining the district court's statements at the sentencing hearing against the background of Rule 11, the court of appeals concluded that the district court rejected the entire plea agreement. The district court, after finding that the probation officer's calculation was correct, said "[I] advise the defendant that I will not follow, cannot follow . . . that portion of the plea agreement, which would have set the sentence . . . [at] 70 to 87 months. . . . I must inform the parties of my rejection of that part of the plea agreement." The court then advised Self, consistent with Rule 11(c)(5), of his right to withdraw his guilty plea, saying "if you don’t withdraw . . . it would be that part of the plea agreement that would be changed, however, the rest of the plea agreement will remain the same." Self opted not to withdraw his plea, and was sentenced to 272 months' imprisonment, rather than the 171-month sentence in the plea agreement. Said the court:
Although we have found no case in our Circuit that explicitly addresses whether a plea agreement may be accepted or rejected on a piecemeal basis, based on the language of Rule 11, we conclude that it cannot. See FED. R. CRIM. P. 11(c)(3)(A) (finding that “the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report” (emphasis added)); [a couple of cases]. Rule 11 speaks in terms of a “plea agreement” and “does not distinguish between ‘sentence bargains’” and “so-called ‘charge bargains,’ in which a criminal defendant typically pleads guilty to a specific charge in exchange for the prosecution agreeing to drop other charges.” At least one other court has concluded that the “rejection of a stipulated sentence constitutes rejection of the entire plea agreement, thereby triggering the mechanisms in . . . Rule 11(c)(5).” We agree. By rejecting the agreed-to sentence of 87 months on Count III, the district court constructively rejected the plea agreement in toto. Further indicia that the district court rejected the plea agreement is that it admonished Self as required by Rule 11(c)(5), which sets forth the warnings that must be delivered to a defendant when the court rejects a plea agreement.

(most cites omitted). Lets pause for a moment to talk about a couple of things before we move on. First, the court explained how to avoid this mess in the first place: "We note that the district court unnecessarily muddied the waters by making statements to the effect that it was rejecting 'that portion of the plea agreement' specifying an 87-month sentence. The better practice is to make clear that the entire plea agreement is being rejected and then give the Rule 11 warnings." Second, remember that Rule 11(c)(3)(A) covers not only (c)(1)(C) agreements, but (c)(1)(A)'s, as well. Plus, when you think about it, this case actually involves a combination (c)(1)(A)/(c)(1)(C) agreement. Thus, the court's reasoning should apply equally to (c)(1)(A)'s. How might this come up in the context of a (c)(1)(A)-only plea? I'm not entirely sure, but keep the case in mind if you have one those that starts going south.

Okay, back to plain error. Although the district court had discretion to reject the agreement, it "was not permitted to reject the plea agreement and then re-impose it on the parties with terms that it found acceptable."
In this respect, the colloquy between Self and the district court is problematic. Although the district court followed the dictates of Rule 11(c)(5) in advising Self that he could withdraw his plea and might be sentenced more harshly, the district court at the same time stated that the plea agreement would stand in all respects except for the sentence. Thus, it is unclear whether Self understood that if he withdrew his plea of guilty, he could either proceed to trial or try to negotiate a new plea agreement, or if he persisted in his guilty plea, he would be sentenced without any of the constraints or benefits of the plea agreement, including the government’s agreement to drop two of the counts. Instead, it appeared that the district court was offering the same terms as the plea agreement, except that the sentence would be changed.

The error affected Self's substantial rights. Instead of getting the 171-month sentence he bargained for, "Self was subjected to an altogether different bargain—one of the district court’s making. Had the district court rejected Self’s plea agreement in toto and sent the parties back to the drawing board, we cannot say what agreement they might have struck."

Which brings us to the last prong: "Failure to properly inform Self that the entire plea agreement was being rejected, compounded by the district court’s error in reimposing all of the terms of the plea agreement on Self, except for the agreed-to sentence under Rule 11(c)(1)(C), requires reversal because such error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Hence, vacation of Self's conviction and remand for proceedings before a different judge.

By the way, notice anything missing from the court's analysis? Perhaps a discussion of whether the error was "plain?" Don't worry, it's there. It just isn't identified as such. The court's discussion of the fairness, etc. prong notes that "[s]trict compliance with Rule 11 is generally required," and that, "[f]or the same reasons that the district court may not involve itself in plea negotiations, it may not reject a plea agreement and then, nonetheless, impose it on the parties with modifications that it chooses." Plainness is also implicit in the court's explanation of why there was error, so that part of plain error review is covered.

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