The Federal Corner - March 2010

"THE FEDERAL CORNER"

11(c)(1)(C) Plea Agreements - It's All or Nothing

F. R. (Buck) Files, Jr.

The United States Court of Appeals for the Fifth Circuit has sent a clear message to the judges of the Circuit: You may accept or reject a Rule 11(c)(1)(C) plea agreement in its entirety; however, you may not accept a part or parts of the agreement and reject the balance of the agreement. United States v. Self, ___ F.3d ___; 2010 WL 364359 (5^th Cir. 2010).

Rocky Self was an unsuccessful criminal who had been charged in a four count indictment with two counts of bank robbery and aiding and abetting the same in violation of 18 U.S.C. § 2113(a) and (d) (Counts I and III), and two counts of carrying a firearm during a crime of violence and aiding and abetting the same in violation of 18 U.S.C. § 924(c) (Counts II and IV).

Rocky's lawyer and an AUSA entered into a plea agreement pursuant to Fed.R.Crim.Proc. 11(c)(1)(C) which included the following:

• Rocky agreed to plead guilty to the bank robbery counts of the indictment (I and III).
• The government agreed to dismiss the firearms counts if Rocky cooperated with the government (Counts II and IV).
• Rocky and the government agreed that Rocky would receive 87 months imprisonment on Count I and 84 months on Count III with the sentences to be served consecutively. This would result in a total of 171 months imprisonment.
• Rocky could withdraw his plea of guilty if United States District Judge Thad Heartfield of the Eastern District of Texas declined to accept the agreed-to sentence.
• Rocky waived his right to appeal "on all grounds," but reserved his right to appeal the failure of Judge Heartfield to impose a sentence in accordance with the terms of the agreement.

Rocky and his lawyer appeared before a United States Magistrate Judge who accepted Rocky's guilty plea and recommended to Judge Heartfield that Rocky be sentenced in accordance with the terms of the 11(c)(1)(C) agreement. Then along came the gunner - the probation officer who found a way to blow the deal. In the pre-sentence investigation report, he determined that Rocky was a career offender and recommended an enhancement on Count I that raised the advisory Guideline range for that count to 188 to 235 months. When the mandatory minimum of 84 months for Count III was added, the resulting advisory Guideline range was 272 to 319 months imprisonment.

At sentencing, Judge Heartfield informed Rocky that he would not accept the agreed-to sentence of 87 months for Count I. He went on to inform Rocky of his right to withdraw his guilty plea; however, Rocky declined to do so. Judge Heartfield then reiterated that he would accept all of the plea agreement's terms except for the recommended sentence as to Count I. Rocky again advised Judge Heartfield that he did not wish to withdraw his plea. Rocky's lawyer requested the minimum sentence. Judge Heartfield rejected this argument and sentenced Rocky to 188 months confinement for Count I and 84 months for Count III for a total sentence of 272 months.

Rocky filed a § 2255 petition seeking permission to file an out-of-time appeal. Judge Heartfield granted the motion and appointed Margaret Loraine Schmucker to represent Rocky. A panel of the Circuit [Emilio M. Garza, DeMoss and Clements, Circuit Judges], handed down one of those opinions which says, in essence, "Listen up, judges. Here's the script. You need to follow it." The following are excerpts from Judge Garza's opinion.

[THE ISSUE]

The first issue is whether the district court accepted or rejected the plea agreement. Self contends that the district court accepted the plea agreement but did not comply with the sentencing terms agreed to by the parties as required under Federal Rule of Criminal Procedure 11(c)(1)(C). The Government contends that the district court rejected the plea agreement because it disagreed with the sentencing agreement reached by the parties.

[THE AGREEMENT AND RULE 11(c)(1)(c)]

The parties agreed to specific sentences for Counts III and IV pursuant to Rule 11(c)(1)(C), which makes such a sentence binding on the court once the court accepts the plea agreement. Rule 11 further requires that 'the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.' FED.R.CRIM.P. 11(c)(3)(A). 'If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the judgement.' FED.R.CRIM.P. 11(c)(4). If it rejects the plea agreement, then it must:

inform the parties that the court rejects the plea agreement; ... advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the [guilty] plea; and ... advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.

[THE SENTENCING HEARING]

At sentencing, the district court considered and agreed with the PSR's finding that Self was a career offender subject to a career offender enhancement. The court further found that the applicable Guidelines range would be 188 to 235 months as to Count III (rather than 70 to 87 months as specified in the plea agreement) and 84 months for Count IV, to run consecutively. The court then stated:

[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 warned Self as required by Rule 11(c)(5):

I must advise the defendant personally that the court is not required to follow that plea agreement, and I give you an opportunity to withdraw your plea of guilty.

And I advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably than that in the plea agreement. But you have a right to withdraw .... And 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.

[IT'S ALL OR NOTHING]

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)); see also In re Morgan, 506 F.3d 705, 709 (9th Cir.2007) (noting that a court may not accept a plea agreement on a piecemeal basis); McClure v. Ashcroft, 335 F.3d 404, 413 (5th Cir.2003) (noting that a court may accept or reject a plea agreement but may not modify it). 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.'In re Morgan, 506 F.3d at 709. 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).' Id. 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.

[HOW THE DISTRICT COURT ERRED]

It was within the district court's discretion to reject the plea agreement. See Smith, 417 F.3d at 487 ('A district court may properly reject a plea agreement based on the court's belief that the defendant would receive too light of a sentence.'). However, the district court was not permitted to reject the plea agreement and then re-impose it on the parties with terms that it found acceptable. See, e.g., McClure, 335 F.3d at 413. 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 district court's error substantially affected Self's rights. He bargained for 171 months' imprisonment in exchange for cooperating with the Government and agreeing to other conditions imposed by the plea agreement. But instead of that bargained-for outcome, 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.

[WHAT RULE 11 REQUIRES]

Strict compliance with Rule 11 is generally required. See, e.g., McCarthy v. United States, 394 U.S. 459, 463-64, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (holding that 'a defendant is entitled to plead anew if a ... district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11'). For 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. 'Judicial involvement in the plea negotiation process is to be strictly limited to rejection of the agreement and an explanation for the rejection.' United States v. Jeter, 315 F.3d 445, 449 (5th Cir.2002); see also FED.R.CRIM.P. 11(c)(1). Failure to properly inform Self that the entire plea agreement was being rejected, compounded by the district court's error in re-imposing 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.'See, e.g., United States v. Adams, 634 F.2d 830, 836 (5th Cir.1981).

[THE REMEDY]

The proper remedy is to vacate Self's conviction and sentence and allow him to proceed before a different judge. See United States v. Miles, 10 F.3d 1135, 1142 (5th Cir.1993) (noting that the proper remedy for a Rule 11 violation arising from a judge's participation in plea negotiations is to vacate the sentence and conviction and allow a defendant to replead before a different judge); Adams, 634 F.2d at 842-43 ('Our remand for resentencing before a different judge is intended ... to extend the prophylactic scheme established by Rule 11,' not a judgment 'as to the actual impartiality of the district court judge who heard this case.').

MY THOUGHTS

• I can remember when the judges of the Eastern District of Texas would not accept Rule 11(c)(1)(C) plea agreements. Now, attitudes have changed - to some extent. We still hear AUSA's talking about the "...the judges not wanting us to enter into binding plea agreements." I am convinced that Self will cause some judges to just say, "No more 11(c)(1)(C) plea agreements."
• What happened in Self is every lawyer's nightmare. The client thinks that he has a sure thing - and the rug gets pulled out from under him. No explanation is every satisfactory.
• When a lawyer gets surprised in the courtroom, his or her first response should be to ask for a break in order to try to figure out what the options are. I've never had a judge refuse such a request.
• Always, always try to re-negotiate. You never know what's possible until you try.