UNITED STATES of America, Plaintiff-Appellee, v. William Scott BARRON, Jr., Defendant-Appellant.
No. 96-36058
United States Court of Appeals, Ninth Circuit
Argued and Submitted Oct. 22, 1998. Decided April 16, 1999.
172 F.3d 1153
Before: HUG, Chief Judge, BROWNING, FLETCHER, REINHARDT, NOONAN, O’SCANNLAIN, TROTT, T.G. NELSON, HAWKINS, SILVERMAN, and GRABER, Circuit Judges. Opinion by Judge NOONAN; Dissent by Judge GRABER; Partial Dissent and Partial Concurrence in the Dissent by Judge TROTT.
AFFIRMED.
PREGERSON, Circuit Judge, concurring in the result:
In my view, Judge Dickran Tevrizian, the learned district judge who granted the government’s motion for summary judgment, had it right when he said “that while it may be proper for the Government to pursue criminal sanctions against the taxpayers, it would be grossly unfair. This case illustrates the axiom that one hand didn’t know what the other hand was doing.” Because IRS personnel failed to follow internal procedures, taxpayers and their attorney, who followed proper procedures, now find themselves ambushed.
Thomas M. Gannon, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.
When a defendant moves under
PROCEEDINGS
On December 17, 1991 William Scott Barron, Jr. of North Pole, Alaska was indicted on one count of being a felon in possession of a firearm in violation of
On April 20, 1992 Barron entered into a plea agreement with the United States. The parties acknowledged that the agreement was under, and controlled by,
On the same date as the agreement was made the district court conducted a hearing at which the government stated that there were “other evidence and other charges that could be brought. We are promising to refrain from bringing those charges, as part of the consideration, and, again, we construe that as part of 11(e)(1)(A), whenever the government is agreeing not to pursue certain charges.” The court referred to Rule 11(e)(1)(C) and inquired what was “the specific sentence that you’ve agreed on as appropriate” under that rule. The government replied that there was no agreement as to a specific sentence but that “we have agreed that the defendant would not be sentenced pursuant to 924(e) [the armed career criminal statute], which provides a penalty of fifteen years to life.” Defense counsel noted that, otherwise, there was “at least a possibility that the career offender statute could apply.” The prosecutor added that “the relevant conduct in this case, we do believe could potentially bring the case into the 10-to-life provisions of 841(b).”
The court carefully interrogated the defendant as to whether he knew what he
Three years later the Supreme Court held that to use a gun for purposes of
In argument to the court Barron noted that he had admitted concealing a gun in a safe merely accessible to him, but not to using the gun in the sense required by Bailey. The government conceded that the facts did not justify his conviction on the gun count.
The magistrate judge recommended that Barron’s motion under
This Court reasoned that a guilty plea waives, or more accurately forfeits, any right to bring a post-conviction relief petition except one challenging the voluntariness of the plea. ... The Court would therefore have rejected Barron’s
§ 2255 petition but for the Court’s conclusion that Bailey undermined the prior finding of voluntariness. The Court was, and is, prepared to give Barron relief, but solely on the basis that his prior plea was involuntary. The proper relief is to withdraw his plea and return the parties to the status quo ante.
The court concluded its original order: “Barron’s motion for
Barron appealed. A panel of this court unanimously affirmed. 127 F.3d 890 (9th Cir. 1997). On petition for rehearing, the court divided. 138 F.3d 809 (9th Cir. 1998). The full court granted rehearing en banc. 138 F.3d 809 (9th Cir. 1998).
ANALYSIS
At the outset it is suggested that Barron must show cause and prejudice in order to be in a position to raise the issue he now presents in his
The government argues that Bousley’s clarification of the applicability of procedural default rules in this context presented a new development in the law, which excuses its procedural default. But the government acknowledges that the issue resolved by Bousley was not “so novel that its legal basis [was] not reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). At the time the Supreme Court granted certiorari in Bousley, the government was litigating the applicability of procedural default rules to challenges based on Bailey in several circuits. See In re Hanserd, 123 F.3d 922 (6th Cir. 1997); Lee v. United States, 113 F.3d 73 (7th Cir. 1997); United States v. Barnhardt, 93 F.3d 706 (10th Cir. 1996). In Bousley itself, the government had raised the procedural default issue at both the district court and the circuit court level. See Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir. 1996), rev’d sub nom. Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998). Bousley was issued five months before the government’s appellate brief was due in this case, yet the government did not raise the procedural default issue here.
The district court agreed with Barron’s contention and so was in the situation envisaged by
Although Barron did not seek a new trial, the district court chose that option on the ground that Barron’s plea agreement had forfeited an appeal on the basis of “a favorable intervening change in the law,” so that the only way Barron’s motion could be granted was by construing it as an attack on the plea agreement. In this analysis the district court was mistaken for three reasons. First, Barron was not appealing. Second, Bailey was not “a favorable intervening change in the law”; it was a determination that at no time had the law forbidden use of a gun in the sense Barron had used a gun. Third, granting a new trial was not necessary to granting his motion. To grant his motion, the district court did not need to construct an argument against the plea agreement. The district court needed only to resentence.
It is urged that a guilty plea is “a single act,” so that it cannot be half knowing and half ignorant. This argument assumes a ground for the
The government approaches the question from contract law, an angle distinct from that of the district court. The government argues that Barron breached the agreement by attacking his
Not only is the government mistaken in treating Barron’s motion as an attack on the plea agreement, but as the government acknowledges its reliance on contract law is by analogy, and the analogy is not perfect. United States v. Partida-Parra, 859 F.2d 629, 634 (9th Cir. 1988). A plea bargain is not a commercial exchange. It is an instrument for the enforcement of the criminal law. What is at stake for the defendant is his liberty. On rescission of the agreement, the prisoner can never be returned to his “original position”: he has served time by reason of his guilty plea and his surrender of basic constitutional rights; the time he has spent in prison can never be restored, nor can his cooperation in his punishment. What is at stake for the government is its interest in securing just punishment for violation of the law and its interest that an innocent act not be punished at all. The interests at stake and the judicial context in which they are weighed require that something more than contract law be applied. This court has on other occasions declined to extend contract law analogy to invalidate a plea bargain based on a mutual mistake of law.
The government frames the issue as whether, in the light of Bailey, Barron may move, pursuant to
Starkly put, the government is in effect saying, “Serve out your extra five years even though you are innocent; otherwise be prepared to risk imprisonment for life as an armed career criminal even though we agreed in 1991 that we would not charge you with this crime.” Cushioned in contract law, the government’s claim may not seem wholly unreasonable. Stripped of the contract analogy, the government’s position is untenable. As an initial matter the government could not have said, “You are innocent of using a gun, but if you’ll plead to it, we’ll give up charging you for your career offenses.” Unless the government can do the same thing now by invoking contract principles, its case is no better.
The first dissent offers an analysis different from that of the magistrate judge, the district judge, the government in the district court and on appeal, and the majority. The dissent asserts: “UNDER
The dissent quotes
The dissent asserts that the district court must vacate the judgment. On that point there is no dispute. The dissent, however, goes on to say: “Structurally, when the error permitting
Marchesani was simply a case where a district judge erred and was reversed because he reduced the sentence without finding the convictions or sentence illegal and without vacating the underlying judgment. The dissent concludes its discussion of Marchesani by asserting that we make the same error by ordering resentencing when the petitioner’s conviction was obtained unlawfully. What the dissent fails to note is that, unlike Marchesani, we are not ordering resentencing on the challenged count but only permitting it on the indisputably valid ones. The claim that Marchesani forbids the relief that the majority requires is wholly unwarranted.
In United States v. Handa we embraced the packaging metaphor as enunciated by the Seventh Circuit and adopted by the District of Columbia, First, Third, Fourth, Fifth, and Eighth Circuits. We held that the “broad and flexible power” conferred by
The dissent argues that “the unitary nature of the entry of a plea of guilty to multiple counts” forecloses such a remedy in the instant case. However, the argument that plea bargains must be treated as a package logically applies only in cases in which a petitioner challenges the entire plea as unknowing or involuntary. The dissent relies not on the statutory language of
The drafter of the plea agreement could have anticipated the contingency that has arisen and included a provision protecting the government’s interest in the event that Barron’s conviction was vacated; that the government did not do so does not justify rescission of the agreement. See id.
The second dissent follows the government’s tack in pressing the analogy between a plea bargain and a contract without acknowledging the differences that are relevant here. This dissent also adopts the approach of the district court in speculating about how to decide a case not before us and strangely underestimates the government’s ability to provide in the plea agreement for the contingency that has arisen. That contingency is not, as this dissent erroneously maintains, a change in the law but an authoritative declaration of what the law is. Most notably, the second dissent discussing a procedure that is governed by statute fails to focus on the statute at all. At the North Pole, as in the nation’s capital, the search for justice starts with the statute.
Reducing the district court’s options to the single option of granting a new trial may sometimes favor the government, sometimes the defendant. The issue should not be decided on the basis of which party is aided but on the basis of what the statute grants: the power to resentence after vacating a judgment that imposed a sentence not authorized by law. The statute incorporates the fundamental principle that it is never just to punish a man or woman for an innocent act. Accordingly, we reverse the district court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
GRABER, Circuit Judge, with whom O’SCANNLAIN, TROTT and SILVERMAN, Circuit Judges, join, dissenting:
I respectfully dissent.
Preliminarily, there are four areas in which I agree with the majority:
- The government waived its opportunity to rely on a theory of procedural default.
- Barron is entitled to some form of relief under
28 U.S.C. § 2255 . - By asking the court to vacate a conviction, Barron is not “breaching” the plea agreement.
- The district court’s fashioning of an alternative remedy, giving Barron a choice whether to renege on this entire proceeding, is beyond what the statute authorizes the district court to do.
After that, however, the majority and I part company. As explained below, the district court properly held that Barron’s plea was entered unconstitutionally. The district court then was obliged to vacate and set aside the judgment and to grant Barron a new trial. In the context of a plea, the scope of such a new trial (or, of course, a new plea agreement) encompasses any charges that were dismissed and any uncharged crimes that the government agreed not to prosecute (as to which the statute of limitations has not run), subject only to the well-established limitation of due process that the government may not act vindictively to punish a defendant for having exercised the right to challenge the first proceeding.
UNDER 28 U.S.C. § 2255 , THE DISTRICT COURT WAS OBLIGED TO GRANT A NEW TRIAL
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which im-
posed the sentence to vacate, set aside or correct the sentence.
... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
(Emphasis added.)
The emphasized text, on its face, provides a three-step procedure for granting relief:
- First, the district court must determine whether “the judgment was rendered without jurisdiction, or [whether] the sentence imposed was not authorized by law or otherwise open to collateral attack, or [whether] there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.”
- Second, if the district court finds one of those conditions, it “shall vacate and set the judgment aside.”
- Third, after vacating and setting aside the judgment, the court “shall” do one of four things, as may appear appropriate—(1) discharge the prisoner, (2) resentence the prisoner, (3) grant a new trial, or (4) correct the sentence.
A. Barron’s constitutional rights were infringed so as to render the judgment vulnerable to collateral attack.
The majority’s first mistake, from which others flow, is the assertion (slip op. at 1157) that Barron did—or can in these circumstances—claim that “the sentence was imposed in violation of the laws of the United States.”
In the face of that lawful sentence, Barron did not attack his sentence qua sentence. Rather, he claimed that his conviction for violation of
At the first step of the analysis, the district court correctly understood that the only way to vacate a conviction after a judgment has been entered on a guilty plea and associated sentence is to hold that the plea was defective.1 I shall develop
The district court properly held that Barron’s plea was defective, because it was not made knowingly and intelligently. United States v. Barron, 940 F. Supp. 1489, 1490-91 (D. Alaska 1996). Barron’s act of pleading guilty was not knowing and intelligent, because he misunderstood what facts the government had to prove if it went to trial. The rubric that
B. The district court’s next step is to vacate and set aside the judgment.
After concluding that a prisoner’s plea was not knowing and intelligent, the district court’s next step is to vacate and set aside the judgment. Ordinarily (as is true here), there is but one “judgment” in a criminal case. The judgment is the “final decision” that “resolve[s] the ultimate question of the guilt or innocence of the accused” of the crimes charged in the indictment and determines a sentence if there has been a finding of guilt. United States v. Dior, 671 F.2d 351, 354 (9th Cir. 1982). “In general, a ‘judgment’ ... is final for the purpose of appeal only ‘when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.’ ” Id. (quoting Parr v. United States, 351 U.S. 513, 518, 76 S. Ct. 912, 100 L. Ed. 1377 (1956)).
The text of
first remedial option, would make no sense if only some but not all counts were involved. Moreover, Congress’ use of the definite article “the,” when referring to “the judgment,” carries the message that there is one identifiable document.
Vacating the judgment is simply the mechanism that permits the district court to act again with respect to a case that otherwise has been completed. In fact, there is no other way for the district court to act on the underlying case after entry of a final judgment. See Marchesani, 341 F.2d at 788 (stating that a judge cannot change or modify a lawful sentence after Rule 35’s 60-day period has expired, unless the district court vacates the judgment of conviction). That is why
C. The appropriate remedy when a guilty plea was entered unknowingly and unintelligently is to grant the prisoner a new trial.
The choice of remedy is at the heart of this case, and it is at the heart of my disagreement with the majority’s approach. The majority holds that the district court simply should have resentenced Barron without taking into account the
Structurally, when the error permitting
Marchesani involved the fate of two prisoners. In a
It could be maintained that the district court acted under the fourth alternative by correcting appellees’ several sentences. But there was no showing that the original sentence was faulty; therefore, no “correction” of the sentence was authorized, absent an illegal conviction. The sentence was “modified” or “reduced”—and this was done because of alleged trial errors uncovered by the district court. If the court’s position is sound that error in fact occurred, of a kind that would justify granting of a
§ 2255 motion, appellees’ sentences should have been entirely vacated and set aside, and the prisoners discharged from the service of any time based on the illegal conviction.If the court vacates and sets aside the judgment of conviction, then, of course, the prisoner must be discharged, or granted a new trial. If the sentence, as distinguished from the conviction, is illegal, then it may be corrected. But a judge cannot, without vacating the conviction because of a legal defect found therein, change or modify, after Rule 35’s sixty day period has expired, a sentence that is itself proper, legal and lawful as a sentence.
Id. at 788 (first paragraph emphasis in original, second paragraph emphasis added; citations omitted).
In this case, too, the original sentence was a proper, legal, and lawful one for a violation of
What the district court did, erroneously, in Marchesani is what the majority requires the district court to do here. However, we made clear in Marchesani that the district court lacked authority to resentence the petitioners under
The law of this circuit is equally settled with respect to a post-conviction challenge
This court has recognized that, when a prisoner successfully attacks a plea as not knowing and intelligent, the proper remedy is to vacate or set aside the plea and grant a new trial. For example, in United States v. Barker, 681 F.2d 589, 592-93 (9th Cir. 1982), this court held that the district court could reinstate the prisoner’s indictment after she successfully attacked her plea under
The majority (op. at 1160) is incorrect that, under Marchesani, a successful
However, neither Marchesani nor Handa considered the pivotal point in deciding the proper remedy in the present case: the unitary nature of the entry of a plea of guilty to multiple counts. I address that topic in the text below.
So far, I have demonstrated that (1) the usual remedy following a successful collateral attack on a conviction resulting from a trial is a new trial,4 and (2) the usual remedy following a successful collateral attack on a conviction resulting from a plea is, likewise, a new trial. It remains only to decide whether that usual remedy follows when the plea involves multiple charges.
A defendant’s entry of a plea of guilty is a single act that takes place at a single time and place with a single state of mind. A defendant’s plea cannot be half voluntary and half involuntary; half knowing and half not knowing; half constitutional and half unconstitutional. A constitutional error that makes the acceptance of the plea improper infects the whole plea. It is either valid or void but cannot be both. This court has recognized the obvious reality that pleas result from bargains and that a plea agreement should be treated as a package. See Gerard, 491 F.2d at 1305-06 (recognizing that “[t]he very fact that there was a plea suggests the possibility of a plea bargain, or perhaps a consciously lower sentence in consideration of the defendant’s not insisting upon trial” and that, in such situations, if the defendant succeeds in withdrawing from the agreement the prosecution is free to revive dismissed counts).5 If a prisoner success-
Understandably, the majority seeks to protect Barron from the ironic consequence of a potentially harsher result after a successful challenge to his
I note, initially, that it is routine for a defendant to run the risk that the outcome of a second proceeding will be worse than the outcome of the first. See, e.g., United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (holding that a worse outcome after exercise of the right to go to trial did not create a presumption of prosecutorial vindictiveness). Moreover, and relatedly, it must be remembered that the prisoner, not the government, files a
Finally, and most importantly, principles of due process already protect a person in Barron’s situation from the fear of prosecutorial vindictiveness. On retrial, a prisoner is protected against receiving an increased punishment solely for having exercised the right to challenge the original conviction under
Under the terms of
The district court’s error here, which the majority compounds, was in going beyond the plain new-trial remedy that
To summarize, the mechanism that the law provides for protecting a prisoner in this situation, having chosen to attack a conviction resulting from a plea and having succeeded, is a limited one; on retrial, the prosecutor may not act vindictively. And, in deciding this question of statutory authority, we may not presume that the prosecutor would do so.
COMMON SENSE COMPELS THE COURT TO RETURN THE PARTIES TO THE STATUS QUO ANTE
Last but not least, common sense dictates the result that I propose. Barron thought that he was guilty of violating
It simply makes sense to let the parties begin again when they all started off on the wrong foot.6 In this context, that means that the guilty plea should be set aside and the pleas of not guilty reinstated.
Such a result will work to the prisoner’s advantage in many cases, particularly if a lot of time has passed and the government is no longer able to proceed, or if the prisoner’s bargaining position has improved in other ways. In all events, as discussed above, the rule against prosecutorial vindictiveness protects the prisoner from governmental overreaching in the next round. This approach is entirely consistent with the logic of Handa and our other precedents, and it is fair and reasonable.
For the foregoing reasons, I must dissent. I would affirm the district court’s decision insofar as it held that Barron’s plea of “guilty” was not knowing and intelligent, vacated the judgment, reinstated Barron’s pleas of “not guilty,” and granted a new trial, and I would reverse the decision insofar as it is inconsistent with the principles stated in this dissenting opinion.
TROTT, Circuit Judge, with whom O’SCANNLAIN and SILVERMAN, Circuit Judges, join, Dissenting and Concurring in Part in the Dissent of GRABER, Circuit Judge:
Not only is the proof of the pudding always in the eating, but so sometimes is the poison. The net result of the majority’s faulty approach to resolving Barron’s interlocutory problem yields acute systemic distress when applied to other common sets of facts and circumstances. This is what they have accomplished.
Abel is charged with two felony counts. Count I charges X. Count II charges Y. Abel freely and voluntarily pleads guilty to Count II pursuant to a plea bargain. In consideration of the plea, Count I is dismissed. Abel is sentenced to prison for Y.
One week after the time to appeal expires, the Supreme Court decides that the Ninth Circuit’s published view of the evidence needed to prove Y is wrong, an occurrence not unheard of. Abel files a motion under
Here’s the poison: the majority’s approach in this case immediately sets Abel free and bars any further action on Count I—even though 1) Abel made no appropriate objection, 2) Abel did not appeal, 3) Abel procedurally defaulted, and 4) the consideration for the agreement has failed—leaving the government and society holding an empty bag.1
The district court clearly apprehended this problem, unmasking it with a more graphic example:
Assume that the authorities arrest Jack the Ripper, charge him with the torturous murder of 175 women, and a
Grand Jury subsequently issues an indictment. Facing 175 convictions and consequent death penalties, Ripper, on advice of counsel, pleads to one count—the murder of Sally Jones—in return for a guaranteed life sentence and a promise by the prosecutor to dismiss all other charges. Ripper killed so many women he cannot be sure if he really killed Sally; his victims kind of blend together in his mind. However, she died under circumstances virtually identical to his other victims, and he was in the neighborhood at the time of her murder. Therefore, he cheerfully concedes guilt, the prosecutor dismisses the other charges, and Ripper receives the bargained for sentence. Years later, it transpires that a copy-cat actually killed Sally and that Ripper is unquestionably innocent for Sally’s murder. Ripper moves for post-conviction relief. In the words of the Supreme Court, he is actually innocent and no one can contest his innocence. The gravamen of Ripper’s claim is that there was a mutual mistake of fact. The proper result would be to set aside the plea and reinstate the original charges so that a new agreement can be reached on the basis of the murder of a victim that Ripper actually did kill.
United States v. Barron, 940 F. Supp. 1489, 1493 n. 6 (D. Alaska 1996) (citations omitted). This result is incongruous to say the least. The Ripper was never placed in jeopardy on the dismissed counts, and a statute of limitation does not shelter him because the crime is murder, yet he is permanently free because the government remains bound by the unraveled plea agreement even though he is relieved from performing a material part of the agreement as a consequence of his deliberate election to attack it.
The majority seems frozen by certain words Barron uses in attacking his predicament, focusing myopiaically on his calculated failure to ask for a new trial, a focus that interferes with any reasoned attempt to properly characterize and process his motion. Barron called it an attack on his “conviction,” pure and simple. This is not a Kabuki dance or a game. Barron cannot fend off the truth by using the statute as a shield when it carries no such restriction in this context. He should not get what he asks for, but what
I was under the impression—mistaken, I suppose—that complete frustration of purpose, or impossibility of performance, or failure of consideration—call it what you may—brought on by subsequent or superseding events, such as a change in the law rendering performance illegal, discharges both parties to a contract from the duty to perform. We seemed to understand this principle twenty-five years ago in United States v. Gerard, 491 F.2d 1300, 1305-06 (9th Cir. 1974), when we said that the government should not always be locked into its side of a plea bargain when a defendant succeeds in withdrawing from his, but today the principle escapes us. See also Santobello v. New York, 404 U.S. 257, 263 n. 2, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (“If the state court decides to allow withdrawal of the plea, the petitioner will, of course, plead anew to the original charge on two felony counts.”); United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) (“[O]n correcting the error complained of in a
The district court correctly understood and rejected the windfall Barron was seeking:
The confusion in the cases cited by Barron may be traceable to the fact that where two parties rescind a contract, each is entitled to restitution of any benefit he bestowed on the other party. In this situation, the benefit Barron bestowed is the time he served and will serve. He is entitled to restitution for that amount. He will receive it in the form of credit for time served against any sentence he should ultimately receive. The benefit the government bestowed was the promise not to seek further prosecution arising from facts underlying the indictment and not to seek the enhanced, higher sentence, i.e.,
18 U.S.C. § 924(e) , which provides a fifteen-year minimum. Because Barron is entitled to be relieved of a major part of the burden of his plea, common sense and justice suggests that he lose the benefits as well.
United States v. Barron, 940 F. Supp. at 1493-94.
The Seventh Circuit put it quite well in a Bailey2 setting similar to our present case:
If a multicount sentence is a package—and we think it is—then severing part of the total sentence usually will unbundle it. And we do not think it matters what means are used to bring resentencing proceedings before the district court. Under the sentencing package concept, when a defendant raises a sentencing issue he attacks the bottom line. That Smith’s case came before the district court pursuant to a
§ 2255 petition, rather than a remand from us or by some other means, does not change that fact.
United States v. Smith, 103 F.3d 531, 534 (7th Cir. 1996). Based on this analysis, that court affirmed the resentencing of a
defendant on two counts not disturbed by Bailey, increasing the sentences for those offenses.
The majority’s approach seems driven by a questionable sense of rough justice based on an aversion to the possibility that Barron might face a harsher sentence as a reward for his successful challenge. In a similar context, we recently recognized that such a result would not necessarily be inequitable, see United States v. Handa, 122 F.3d 690, 692 (9th Cir. 1997), when Judge Noonan wrote for the court:
Handa argues earnestly that resentencing under the Guidelines after he has prevailed in setting aside the firearms count of conviction is unfair. That view of the matter goes too far in treating sentencing as a kind of game.... There is, therefore, no constitutional barrier to the district court imposing a sentence, and no unfairness in imposing a sentence that the Guidelines make appropriate for Handa’s conduct.
The truth is that because this appeal is interlocutory, we have no idea what appropriate sentence the district court might have determined. Surely Barron would get credit for time served, as the district court indicated; and, as Judge Graber explains, plenty of rules exist to ensure that any new sentence he receives will comport with due process and the law, and that is what matters. See Alabama v. Smith, 490 U.S. 794, 799, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989) (“[The] presumption of vindictiveness [does] not apply in every case where a convicted defendant receives a higher sentence on retrial.” (quoting Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986))) (overruling in part North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)); Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) (holding that the Fourteenth Amendment is not implicated when a state prosecutor carries out a threat during plea negotiations to reindict the accused on
The majority opinion appears to overlook the implications in this context of longstanding principles that permits a district court to accept a plea of guilty from a defendant who says he is innocent so long as there exists a factual basis for the plea. North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). And, as we said in United States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976) (per curiam), “The court need not be convinced beyond a reasonable doubt that [the] accused is guilty. It need only be convinced that there is sufficient evidence to justify the reaching of such a conclusion.” It is also appropriate for the same district court to refuse to permit such a defendant to withdraw his guilty plea even though he pleads legal confusion, repeats his claim of innocence, and asks for fairness and justice. United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995). The rationale behind the Alford rule as expressed by Justice White is plain and simple: “As one state court observed nearly a century ago, ‘[r]easons other than the fact that he is guilty may induce a defendant to ... plead [guilty] [and][h]e must be permitted to judge for himself in this respect.’ ” Id. at 33, 91 S. Ct. 160. The court also embraced the concept that the Constitution is not offended by the acceptance of a plea “even though the evidence before the judge indicated that there was a valid defense.” Id. at 35, 91 S. Ct. 160.
From this line of cases, I conclude that no constitutional or statutory infirmity exists in the choice the district court gave Barron: either perform your part of the deal, or start over again. I note that the district court’s charitable reasoning in this regard, which echoes what Justice White said in Alford, was that Barron should not be compelled to withdraw his plea if he did not want to. In fact, the court very well could have refrained from the option of sticking with the deal and simply said, “This is what happens when we grant your motion.” The choice may not be easy, but it was necessarily occasioned by Barron’s criminal conduct and the change in the law. In fact, the option the majority does not like—serve out your sentence—is a boon to Barron in the light of (1) the Probation Officer’s conclusion that Barron was an armed career offender facing 360 months to life, and (2) the stipulated factual basis for the convictions:
In its case-in-chief the United States would show that on April 18, 1986, [appellant] was convicted in the Superior Court for the State of Alaska at Fairbanks of Misconduct Involving a Controlled Substance in violation of A.S. 11.71.030(a)(1). Plaintiff would obtain judicial notice of the fact that this offense is punishable by imprisonment for a term in excess of one year; the evidence would show that [appellant] was actually sentenced to four years imprisonment, this being a presumptive sentence under state law.
The evidence would further show that on December 11, 1991, a state search warrant was executed at [appellant’s] residence in North Pole, Alaska. Found in a safe in his bedroom was approximately twenty-one (21) ounces of cocaine, one .380 caliber Bernardelli semi-automatic handgun, and approximately $34,000.00 in cash. A search of [appellant] himself incident to arrest also disclosed cocaine, $1977 in cash in his vest pocket, and $900 in “buy” money used by undercover law enforcement in the pocket of his jeans. Finally, the evidence would also show that the search of [appellant’s] residence additionally disclosed packaging materials, cutting
agents and drug paraphernalia as further proof of [appellant’s] intent to engage in drug trafficking.
Finally, and with all respect to my colleagues, I must reluctantly point out that the majority opinion treats the government’s arguments with what comes across as scorn, using wholly inappropriate language such as:
Stripped of the contract analogy, the government’s position is untenable. As a initial matter the government could not have said, “you are innocent of using a gun, but if you’ll plead to it, we’ll give up charging you for your career offenses.” Unless the government can do the same thing now by invoking contract principles, its case is no better.
What? The government’s case is no better than using threats to force “innocent” people to plead guilty? The government has never even remotely suggested such a thing. What the government did say was that Barron might “plead anew to a section 924(c)(1) offense on the basis of facts known to him that would support a conviction under Bailey.” The majority’s passage unfairly forces words into the government’s mouth the government has never uttered. It then twists the government’s arguments into a strawman and batters it to pieces. The government has only argued that Barron’s plea agreement was predicated on a mutual mistake of law and should be vacated because Barron, who has escaped 60 months of imprisonment he bargained for in lieu of additional felony charges and a heavier sentence, cannot be allowed to have his cake and eat it, too. The government seeks only to make Barron pay for what he did. To support their respectable argument, the government cites United States v. Smith, 103 F.3d 531, 533-35 (7th Cir. 1996) (district court has authority to restructure defendant’s entire sentencing package where Bailey has voided one of three counts of conviction); United States v. Friend, 101 F.3d 557, 558-59 (8th Cir. 1996) (remanding for possible sentence enhancement under Guidelines § 2D1.1(b)(1) after Section 924(c)(1) conviction invalidated by Bailey); United States v. Valle, 72 F.3d 210, 217-18 (1st Cir. 1995) (same); United States v. Pollard, 72 F.3d 66, 68-69 (7th Cir. 1995) (same).
What seems completely to escape the majority is that we, the judges of the Ninth Circuit, are the ones responsible for Barron’s plea in 1992 to the now-troublesome count, because we held in 1991 in United States v. Torres-Rodriguez, 930 F.2d 1375, 1385 (9th Cir. 1991)—a year before the plea—that mere possession of a firearm was sufficient to satisfy § 924(c). Are we chargeable with herding “innocent” defendants to prison, or has the noble fiction of “Barron was never guilty” now run amok? If we are not so chargeable, then why is it necessary or useful at the end of the opinion to wrap the matter in “the fundamental principle that it is never just to punish a man or woman for an innocent act?” This concept has nothing to do with this case, and it is a shot the government does not deserve.
The majority says also that Bailey “was not a favorable intervening change in the law.” It wasn’t? Then how does the majority explain what the Supreme Court did in Bailey to Torres-Rodriguez? No matter how one chooses fictionally to label the process, Bailey changed the law in this circuit, law relied on in 1992 by the government, the district court, and Barron when this plea was entered. We told them what the law was, and they followed our lead. In passing, I would note that Torres-Rodriguez did not plow new ground. In fact, in it we said that the result was “supported by Stewart, our leading decision on section 924(c)(1).” Torres-Rodriguez, 930 F.2d at 1385 (citing United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)). The author of Stewart was no lesser a judicial luminary than now-Justice Anthony Kennedy; and I doubt he thought he was causing “innocent” people to be sent to jail when he wrote it, no more than did the panel who published Torres-Rodriguez.
Moreover, the majority denies the government the opportunity to argue under
Bousley sends two messages the majority fails to acknowledge. First “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” Id. at —, 118 S. Ct. at 1610 (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979)). Second, “[i]n cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” Id. at —, 118 S. Ct. at 1612. Accordingly, I would analyze this case through the lens of procedural default as outlined by Bousley. The district court recognized this problem, and so should we. Just as Bousley procedurally defaulted, so has Barron, period. Barron is not “actually innocent.” The majority faults the government for not arguing Bousley before Bousley, but they let Barron off the hook for not arguing Bailey before Bailey.
We have roared like hell when agencies like the INS refuse to follow our law, even when they point out that other circuits have different rules. Yet here, the majority seems to say that by following our lead the district court traffics in the conviction of the innocent.
Accordingly, I concur in most of Judge Graber’s well-reasoned dissent. I suppose all plea agreements will now contain a revivor clause as to dismissed counts, hanging a “threat” over a defendant’s head before any possible appeal; but to what purpose if an attack by a defendant crafted without a request for a new trial blocks any access by the court to the real issue. Barron may live in North Pole, but we are Santa Claus.
Notes
The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:
(A) move for dismissal of other charges; or
(B) make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or
(C) agree that a specific sentence is the appropriate disposition of the case.
The court shall not participate in any such discussions. The majority’s citation to James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 41.3b at 1192 (2d ed. 1994), op. at 1158, does not advance the discussion. The case that the treatise cites, Bateman v. United States, 875 F.2d 1304, 1307 (7th Cir. 1989), stands only for the undisputed proposition that
By contrast, as explained in footnote 2, multiple counts of conviction after trial are not a “package.”