Damone Bell pled guilty to distribution of a controlled substance, a lesser included offense that he was not indicted on, in an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). The district court accepted the plea but rejected the agreement and sentenced Bell to a much lower sentence than had been agreed upon. The Government appealed and, in the alternative, petitioned for a writ of mandamus to set the case for trial, claiming that it had a right to withdraw its consent to the plea when the 11(c)(1)(C) agreement was rejected, and that Bell could not plead guilty to an un-indicted lesser included offense without its consent.
The Sixth Circuit affirmed the sentence and denied the Government’s petition. Rule 11 gives the defendant the right to withdraw a 11(c)(1)(C) plea if the court rejects it, but it does not give the Government the right to withdraw its consent in the same scenario. Nor did the “fail-safe” provision of the agreement give the Government the right to withdraw its consent, as it neither made its consent expressly contingent on the court’s acceptance of the agreement nor included a waiver for the defendant of his double-jeopardy rights for the greater-included offense.
Appeal from the Western District of Kentucky
Opinion by Donald, joined by Rogers and Stranch
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