Guilty Pleas

The Tenth Circuit vacated a defendant’s sentence and remanded for re-sentencing after the district court imposed a higher sentence based on the defendant’s decision to plead guilty without a plea agreement with the Government. The Court concluded that a defendant’s decision whether to enter an “open plea” does not fall under one of the factors listed in 18 USC 3553, and it was therefore procedurally unreasonable for the judge to consider that fact in imposing a higher sentence.

The Second Circuit affirmed a district court’s order denying the defendant’s motion to withdraw his plea. The defendant had argued that the district court misstated the applicable mandatory minimum term of supervised release. The Second Circuit affirmed but noted the parties had incorrectly stated that the defendant bore the burden of persuasion to show the Rule 11 error had affected his substantial rights. Rather, it was the Government’s burden to show such an error was harmless.

The Eighth Circuit vacated a defendant’s sentence and held that the judge improperly participated in plea negotiations when he excused the prosecutor from the court room, told the defendant that the federal system “sucks” and is “really harsh,” and suggested that the defendant would be sentenced by a more lenient if he went to trial and lost rather than plead guilty. The Court held this was reversible plain error where the defendant proceeded to trial and received a higher sentence than discussed by the parties and the judge at the change of plea hearing.

The Eleventh Circuit affirmed the district court’s denial of the defendant’s motion under 28 U.S.C. § 2255, holding that despite counsel’s deficient performance in failing to advise the defendant of potential exposure to a life sentence, make a plea offer to the government as directed by the defendant, or convey the government’s time-limited plea offer to the defendant, the defendant was not prejudiced by the deficient performance based on his rejection of two other plea offers from the government.

The Court held that the district court did not err by allowing the Government to withdraw its Rule 35 motion, as the plea agreement giving the Government discretion to file a motion for a sentence reduction also gave the Government discretion to later withdraw such a motion.

The Court vacated the defendant’s sentence and ordered that he be re-sentenced in front of another judge, holding that the Government breached the plea agreement when it argued for a sentence within the Guidelines range that was calculated by the sentencing court and that was higher than the range anticipated by the plea agreement. The plea agreement obligated the Government to argue for a sentence within the range based on the parties’ stipulations in the plea agreement.

The Court agreed that an assertion of “legal innocence” as well as “factual innocence” can justify withdrawing a plea, but affirmed the district court’s denial of the defendant’s motion to withdraw his guilty plea since “bald assertions of innocence are insufficient,” and James had failed to allege a sufficient basis for an entrapment defense that he could have utilized at trial.

The Court held that it was plain error for the district court to accept the defendant’s plea to armed robbery where the factual basis was based on his placing a closed pocket knife on the bank teller’s counter while pulling a plastic bag out of his pocket, as this did not constitute “use of a deadly weapon.”

United States v. Alicia Norman, et al, No. 17-3070 (D.C.C. June 11, 2019) ISSUES: Criminal Procedure, Pleas, Ineffective Assistance of Counsel, Sentencing Guidelines On an appeal from a bribery and marijuana distribution case, the Court rejected the defendants’ numerous allegations of error except to the extent it held that one of the defendant’s had raised …

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