UNITED STATES оf America, Plaintiff-Appellee/Cross-Appellant, v. Derrick Ivan JIM, Defendant-Appellant/Cross-Appellee.
Nos. 12-2085, 12-2120.
United States Court of Appeals, Tenth Circuit.
May 12, 2015.
Mark T. Baker, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the briefs), Albuquerque, NM, for Plaintiff United States of America.
Before BRISCOE, Chief Judge, EBEL, and KELLY, Circuit Judges.
EBEL, Circuit Judge.
A jury convicted Derrick Jim of aggravated sexual abuse occurring in the Navajo Nation. Jim initially pled guilty to this offense, but later withdrew his plea and proceeded to trial. On appeal, Jim claims that the trial court erred when it let the Government present to the jury evidence of the admissions he made in his plea agreement and during his plea colloquy. Ordinarily, Rule 410 of the Federal Rules of Evidence precludes the Government from using such evidence against a defendant. But Jim waived his Rule 410 protections as part of the plea agreement underlying his (now withdrawn) guilty plea. We conclude that the district court did not err in enforcing Jim‘s Rule 410 waiver by allowing the Government to present to the jury Jim‘s prior admissions of guilt. We, therefore, AFFIRM Jim‘s convictions.
In its cross-appeal, the United States challenges Jim‘s 360-month prison sentence, arguing that the district court erred in calculating Jim‘s offense level under the sentencing guidelines. We agree that the district court erred when it held that, in determining whether a two-offense-level enhancement under
Therefore, exercising jurisdiction under
BACKGROUND
The evidence, viewed in the light most
After 1:00 a.m., K.T., feeling ill from drinking too much, went inside the house and laid down on a couch in her living room. Jim followed her inside; locked the door to the carport and turned off the interior lights; pulled K.T. off the couch, causing her to hit her head on the floor; dragged her by her ankles down the hallway and into her bedroom; and, while K.T. fought him, raped her vaginally and anally with his penis. Afterwards, Jim dragged K.T. into the laundry room, where she was able to fight him off. He then fled from the house through the exterior laundry room door.
While all of this was occurring, K.T.‘s friends, upon discovering that K.T.‘s house was locked and dark, knocked on the door leading from the carport to the kitchen, rang the doorbell, and called K.T.‘s cell phone, to no avail. After Jim fled, K.T. crawled to the carport door, where her friends were knocking, and opened the door. She was naked from the waist down, bleeding, and crying hysterically. When she was eventually able to speak, K.T. told her friends that Jim had raped her.
As a result of these events, the United States charged Jim with one count of aggravated sexual abuse—vaginal intercourse by force, in violation of
On appeal, Jim challenges his convictions, arguing that the district court erred when, contrary to Rule 410, it allowed the Government to present to the jury evidence that he admitted committing the charged offenses when he initially pled guilty. We reject this argument because Jim validly waived the usual protection Rule 410 provides against the Government‘s use of this evidence at trial. In a cross-appeal, the Government contends that the district court erred in calculating Jim‘s offense level under the sentencing guidelines. We agree, and remand for resentencing.
DISCUSSION
I. Jim‘s challenge to the enforcement of his Rule 410 waiver
Rule 410 prоvides that evidence of “a guilty plea that was later withdrawn” or
In this case, Jim waived those protections as part of his initial plea agreement:
Except under circumstances where the Court, acting on its own, fails to accept this plea agreement, the Defendant agrees that, upon the Defendant‘s signing of this plea agreement, the facts that the Defendant has admitted under this plea agreement as set forth above, as well as any facts to which the Defendant admits in open court at the Defendant‘s plea hearing, shall be admissible against the Defendant under Federal Rule of Evidence 801(d)(2)(A) [providing that an opposing party‘s statement is not hearsay] in any subsequent proceeding, including a criminal trial, and the Defendant expressly waives the Defendant‘s rights under
Federal Rule of Criminal Procedure 11(f) andFederal Rule of Evidence 410 with regard to the facts the Defendant admits in conjunction with this plea agreement.
(R. v.1 at 30, ¶ 10(c).) In light of Jim‘s Rule 410 waiver, the district court allowed the Government to introduce evidence during his trial of the admissions Jim made in his plea agreement and during his plea colloquy. United States v. Jim, 839 F.Supp.2d 1157, 1158 (D.N.M.2012).
On appeal, Jim does not contend that he unknowingly or involuntarily waived Rule 410‘s protections. Instead, he claims that his Rule 410 waiver was unenforceable because it was part of an overall plea agreement that was itself not knowing and voluntary. More specifically, Jim contends that his guilty plea, which was part of his plea agreement, was not knowing and voluntary because he did not realize that, by pleading guilty, he was foregoing a trial. “If a guilty pleа is not knowing and voluntary, it is void, and any additional waivers in the plea agreement generally are unenforceable.” Mitchell, 633 F.3d at 1001; see also United States v. Rollings, 751 F.3d 1183, 1186 (10th Cir.), cert. denied, U.S., 135 S.Ct. 494, 190 L.Ed.2d 362 (2014). To determine whether Jim‘s Rule 410 waiver is enforceable in this case, therefore, we consider whether Jim knowingly and voluntarily entered his plea agreement and guilty plea, which guilty plea the district court later allowed him to withdraw. Because Jim failed to show that his guilty plea and the underlying plea agreement were unknowing or involuntary, we conclude that the Rule 410 waiver contained in the plea agreement was enforceable. Based on that waiver, the district court did not err in allowing the Government to
A. Proceedings relevant to the enforcement of Jim‘s Rule 410 waivеr
In order to understand Jim‘s argument against enforcement of his Rule 410 waiver and why that argument fails, it is necessary to consider four discrete proceedings that occurred during this criminal prosecution.
1. Jim pled guilty
Pursuant to the plea agreement, Jim pled guilty to one count of aggravated sexual abuse, and the parties agreed that Jim would receive a sentence of between 151 and 188 months in prison. If the district court accepted the plea agreement, the parties’ agreed-upon sentencing range would bind the court. See
2. Jim retained new counsel
After he pled guilty but before sentencing, Jim, acting on his own, wrotе the district court asking for a new court-appointed attorney. During an ex parte hearing to address that request, Jim told the district court that his current attorney had rushed him into the plea agreement, which Jim had not fully understood. In particular, Jim told the court that he had not realized that, by pleading guilty, he would not have a trial. According to Jim, when he pled guilty, he mistakenly believed that his plea agreement only limited the length of the sentence he would receive, should he be convicted, but that he would still have a jury trial to determine his guilt or innocence. (This was the only time that Jim made this assertion to the district court, although the district court thereafter did sua sponte return to this issue in several later rulings.) Before the court ruled on Jim‘s request for another court-appointed attorney, Jim instead retained a new lawyer.
3. The district court allowed Jim to withdraw his guilty plea
Jim‘s new attorney filed a motion to withdraw Jim‘s guilty plea. Because Jim made this request before sentencing, the district court had discretion to permit Jim to withdraw his plea if he asserted a “fair and just reason for requesting” to do so.
The district court, in deciding whether to permit Jim to withdraw his guilty plea, considered several factors, including whether Jim‘s guilty plea was knowing and voluntary.4 See Sanchez-Leon, 764 F.3d at 1258. In addressing the knowing-and-voluntary factor, thе district court sua sponte noted that it remained troubled by
Nevertheless, before allowing Jim to withdraw his guilty plea, the district court specifically warned him that, in light of his Rule 410 waiver, if Jim withdrew his guilty plea and went to trial, the Gоvernment would be able to present to the jury evidence of Jim‘s admissions made when he entered that plea. In response to this warning, defense counsel, in open court with Jim present, acknowledged that the Government would be able to use the Rule 410 evidence at trial, but assured the court that Jim was “aware of what he‘s doing and what the evidence is against him.” (R. v.3 at 24.) Jim ultimately elected to withdraw his guilty plea and proceed to trial.
4. The district court enforced Jim‘s Rule 410 waiver by allowing the Government to present Rule 410 evidence to the jury
After the district court permitted Jim to withdraw his guilty plea and the parties were preparing for trial, Jim filed a motion in limine seeking to prevent the Government from presenting the Rule 410 evidence to the jury. In making that motion, Jim did not assert that the plea agreement containing his Rule 410 waiver was unknowing and involuntary on the basis that he had not realized that, when he pled guilty, he would not have a trial. Rather, the bases for Jim‘s in limine motion were that allowing the government to present to the jury evidence that he had admitted committing the charged offenses would result in an unfair trial and that Jim did not knowingly enter into the plea agreement with its Rule 410 waiver, because, at the time he made that agreement, he did not have full discovery of all the evidence that the Government had against him. Those issues are not raised now in this appeal.
The district court, in denying Jim‘s motion in limine, again raised and addressed sua sponte the court‘s lingering concerns about the knowing-and-voluntary nature of Jim‘s guilty plea, based on a mistaken belief that he would still have a jury trial after pleading guilty. Jim, 839 F.Supp.2d at 1180-87. Ultimately, however, the court rejected those concerns as a reason to exclude the Rule 410 evidence because Jim had failed to “come forward with evidence, a sworn statement or testimony or other evidence, suggesting that the Court‘s concerns and doubts were correct, or that the Court‘s doubts should preclude a finding that the plea was knowing and voluntary.” Id. at 1182. Because Jim had failed to show that his guilty plea was not knowing and voluntary, the district court
The district court‘s two decisions, first to allow Jim to withdraw his guilty plea and then to enforce the Rule 410 waiver contained in the plea agreement, are consistent with decisions from other circuits enforcing Rule 410 waivers contained in plea agreements, and consistent with the particular language of those waivers. See United States v. Nelson, 732 F.3d 504, 512-13, 516-17 (5th Cir.2013) (enforcing plea agreement‘s Rule 410 waiver against a defendant who did not enter a guilty plea as required under the plea agreement, where waiver expressly took effect if the defendant failed to enter the guilty plea), cert. denied, U.S. —, 134 S.Ct. 2682, 189 L.Ed.2d 224 (2014); United States v. Washburn, 728 F.3d 775, 780-82 (8th Cir.2013) (holding plea agreement, with its Rule 410 waiver, was binding on defendant once he signed the agreement and Rule 410 waiver remained enforceable, pursuant to its express terms, even though the defendant never entered guilty plea required under that agreement and even though district court never accepted the plea agreement); United States v. Quiroga, 554 F.3d 1150, 1153-57 (8th Cir.2009) (enforcing plea agreement‘s Rule 410 waiver that by its terms applied if the defendant breached the рlea agreement, when the defendant breached the agreement by withdrawing his guilty plea); cf. United States v. Newbert, 504 F.3d 180, 181-88 (1st Cir.2007) (looking at Rule 410 waiver language in plea agreement, but declining to enforce waiver because of extenuating circumstances in that case).
Jim‘s Rule 410 waiver expressly stated that it took effect at the time he signed the plea agreement. See Washburn, 728 F.3d at 779-82 (enforcing Rule 410 waiver in plea agreement which, according to the terms of the waiver, took effect upon the defendant‘s signing the agreement, notwithstanding that the defendant later breached the plea agreement by not entering a guilty plea); see also United States v. Escobedo, 757 F.3d 229, 233-34 (5th Cir.2014) (looking at language of plea agreement containing Rule 410 waiver to determine whether parties intended the waiver to be effective when the defendant signed the agrеement or instead when (and if) the court accepted the plea agreement). And Jim does not contend that his Rule 410 waiver was not enforceable for the reason that the district court permitted him to withdraw his guilty plea. Indeed, it would make no sense to deny the efficacy of the Rule 410 waiver just because the guilty plea was withdrawn because that would render the waiver largely meaningless and deprive the Government of the benefit of its bargain. The clearly contemplated situation where the Rule 410 waiver would have any usefulness to the Government is in precisely this situation—where the defendant failed to carry out his side of the bargain to plead guilty and thereby forced the Government to trial.
However, if Jim‘s entire guilty plea was not knowing and voluntary, then “any additional waivers in the plea agreement,” including his Rule 410 waiver, would not have been enforceable. See Mitchell, 633 F.3d at 1001; see also Rollings, 751 F.3d at 1186. Jim‘s argument on appeal, therefore, is that his entire guilty plea was not knowing and voluntary and, thus, neither was his plea agreement which contained the Rule 410 waiver; therefore, the Rule 410 waiver is unenforceable. So the issue we now address is whether Jim entered his plea agreement knowingly and voluntarily.
We review de novo the question of whether Jim‘s guilty plea was knowing and voluntary. See Rollings, 751 F.3d at 1191; see also United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th Cir.2003) (holding appellate court‘s review is de novo where district court sua sponte raised and explicitly decided issue on merits).
C. Jim‘s Rule 410 waiver was enforceable because he failed to demonstrate that his guilty plea was not knowing and voluntary
1. The standard by which Jim must demonstrate that his guilty plea was not knowing or voluntary
It is Jim‘s burden to show that his guilty plea was not knowing or vоluntary. See Rollings, 751 F.3d at 1187. Ordinarily, to meet this burden a defendant would have to prove that his plea was not knowing and voluntary. Id. (addressing knowing-and-voluntary nature of plea agreement); United States v. Salas-Garcia, 698 F.3d 1242, 1255 (10th Cir.2012) (same). But Jim contends that, in order to meet his burden in this case and avoid his Rule 410 waiver, he need only point to “some affirmative indication” in the record that his plea was not knowing and voluntary. Jim deems this “some affirmative indication” to be a lighter burden than the usual burden a defendant shoulders when challenging the knowing-and-voluntary nature of his guilty plea.
Jim gets this “some affirmative indication” language from United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995). But the Court in Mezzanatto addressed a question different from the one presented here. Mezzanatto addressed whether there should be a per se rule precluding a defendant from ever waiving his Rule 410 protections. Id. at 197. Rejecting such a per se rule, the Court held that, like most constitutional and statutory rights, a defendant can waive Rule 410‘s protections. Id. at 200-03. In reaching that conclusion, the Court rejected the dеfendant‘s policy argument that allowing a defendant to waive Rule 410‘s protections “invite[d] prosecutorial overreaching and abuse.” Id. at 209.
The mere potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing [plea] negotiation altogether. Rather, tradition and experience justify our belief that the great majority of prosecutors will be faithful to their duty. Thus, although some waiver agreements may not be the product of an informed and voluntary decision, this possibility does not justify invalidating all such agreements. Instead, the appropriate response to respondent‘s predictions of abuse is to permit case-by-case inquiries into whether waiver agreements are the product of fraud or coercion. We hold that absent some affirmаtive indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable.
Id. at 210 (emphasis added) (internal quotation marks, citations omitted).
When the Court in Mezzanatto used the language on which Jim relies, it was discussing Rule 410 waivers generally, rejecting a per se rule that a defendant can never waive his Rule 410 protections. Mezzanatto was not addressing, nor was it attempting to articulate, a unique (and lesser) burden that a particular defendant had to meet in order to challenge a Rule 410 waiver in a given case. We, thus, do not read Mezzanatto‘s “some affirmative indication” language to establish a new and
Had the Court in Mezzanatto intended to establish a new standard to measure the knowing and voluntary nature of a waiver of rights, the Court would have done so clearly and directly, instead of using the phrase “some affirmative indication” in a single sentence found toward the end of the opinion, in a section rejecting one of several policy reasons offered to support a (rejected) per se rule prohibiting a defendant from ever waiving his Rule 410 protections. Moreover, if the Court intended to announce a new standard in Mezzanatto, the Court surely would have elaborated on what it meant by “some affirmative indication,” and the Court would have explained how that new standard compared with the already-existing legal standard for determining whether a waiver of rights was knowing and voluntary. But the Court did not see the need to elaborate on the meaning of “some affirmative indication” in Mezzanatto because it was not creating a new standard.
Nor would it make sense that Mezzanatto would craft a special rule just for Rule 410 waivers. There is no reason why it should be easier, as Jim defines “some affirmative indication,” for a defendant to avoid his Rule 410 waiver (or here a guilty plea and entire plea bargain associated with a Rule 410 waiver) than it is for a defendant generally to avoid a guilty plea or a waiver of other constitutional or statutory rights. To the contrary, the Court‘s point in Mezzanatto was that Rule 410 protections are like most constitutional and statutory rights because they too can be waived. 513 U.S. at 200-06. The underlying premise of Mezzanatto is that Rule 410 protections do not require special evidentiary rules to address waiver. See id. at 200-04. We have found no circuit case expressly interpreting Mezzanatto‘s “some affirmative indication” language as a new and different standard by which to measure the knowing and voluntary nature of Rule 410 waivers, or plea agreements and guilty pleas associated with those waivers.
Thus, we conclude that Mezzanatto, by using the phrase “some affirmative indication that the [Rule 410 waiver] agreement was entered into unknowingly or involuntarily,” 513 U.S. at 210, was not setting forth a new evidentiary standard for determining whether a particular defendant in a given case knowingly and voluntarily waived his Rule 410 protections. In answering that issue here, then, we make the usual inquiry into whether Jim has proved or established that his guilty plea was not knowing and voluntary.
This is what we did previously in Mitchell, another case addressing the validity of a Rule 410 waiver contained in a plea agreement. At the outset of its discussion, the Mitchell court noted generally that “the protections of ... Rule [410] may be waived,” and then it quoted generally from Mezzanatto: “[A]bsent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of [Rule 410] is valid and enforceable.” Mitchell, 633 F.3d at 1000 (quoting Mezzanatto, 513 U.S. at 210.) However, in order to determine whether the defendant‘s Rule 410 waiver was enforceable in that case, Mitchell used our ordinary evidentiary standards to consider whether the defendant‘s guilty plea, which was part of the same plea agreement containing his Rule 410 waiver, was knowing and voluntary. 633 F.3d at 1001. The Mitchell court made no further refer-
2. Jim failed to establish that his guilty plea was not knowing and voluntary
On appeal, Jim claims that his guilty plea was not knowing and voluntary because he did not realize that, by pleading guilty, he would not have a trial. To support his claim, Jim points only to the doubts that the district court sua sponte raised about the knowing and voluntary nature of Jim‘s guilty plea. Those doubts were based on 1) Jim‘s pro se assertion to the district court, when Jim was seeking a new attorney, that Jim mistakenly thought that he would still have a jury trial, even after pleading guilty; and 2) the magistrate judge‘s failure to insure, on the record at the plea colloquy, that Jim understood that by pleading guilty, he was waiving his right to a jury trial. The district court‘s “doubts,” however, in that different and preliminary context, are insufficient for Jim to establish that his guilty plea was not knowing or voluntary. In fact, since that ruling, Jim offered neither his own testimony nor any other evidence that he believed he was retaining a right to proceed to trial notwithstanding clear language in the plea agreement to the contrary, nor did he renew that claim on his own in the district court.
Although the magistrate judge who took Jim‘s guilty plea did not expressly inform Jim that he was waiving his right to a jury trial by pleading guilty, the written plea agreement and the circumstances surrounding Jim‘s entry of that plea show that Jim understood that, by pleading guilty, he would not have a trial. See United States v. Tanner, 721 F.3d 1231, 1233-35 (10th Cir.2013) (per curiam).
The plea agreement itself informed Jim that he had the right to plead not guilty and to have a jury trial and, at that trial, to confront and cross-examine witnesses, to testify and present witnesses in his defense, compelling their attendance if need be, and not to be required to incriminate himself. The plea agreement further stated that Jim “agrees to waive these rights and to plead guilty....” (R. v.1 at 27, ¶ 3.) And Jim declared that,
[b]y my signature on this plea agreement, I am acknowledging that I am pleading guilty because I am, in fact, guilty of the offense to which I am pleading guilty. I recognize and accept responsibility for my criminal conduct. Moreover, in pleаding guilty, I acknowledge that if I chose to go to trial instead of entering this plea, the United States could prove facts sufficient to establish my guilt of the offense to which I am pleading guilty beyond a reasonable doubt.
(Id. at 28, ¶ 8 (emphasis added).) Jim also stated in the plea agreement that he had “thoroughly reviewed all aspects of this case with [his] attorney and is fully satisfied with that attorney‘s legal representation.” (Id. at 26, ¶ 11.) Finally, immediately above Jim‘s signature, the plea agreement stated “I have read this agreement and carefully reviewed every part of it with my attorney. I understand the agreement and voluntarily sign it.” (Id. at 34.) The plea agreement, thus, adequately informed Jim that, by pleading guilty, he was giving up a trial. And by signing the agreement, he acknowledged understanding that trial waiver.
During the change-of-plea hearing, Jim stated in open court that he had read and signed the plea аgreement, that he understood the agreement, and that he had no questions about it. Jim also acknowledged that he was pleading guilty of his own free
Furthermore, Jim‘s personal history indicates that he was capable of understanding the terms of his plea agreement. At the time he signed that agreement, Jim was twenty-eight years old, a high school graduate, with some college credits. And he had twice before pled guilty to drunk driving charges, so he had previous experience with guilty pleas.
In light of the language in the plea agreement informing Jim that, by pleading guilty, he was giving up a trial, and the circumstances surrounding his entry of that plea that show that Jim was capable of understanding, and did understand, the terms of that agreement, we find no error in the district court‘s ruling that Jim knowingly and voluntarily entered his guilty plea. See Tanner, 721 F.3d at 1233-34.56
II. The Government‘s cross-appeal challenging Jim‘s sentences
In its cross-appeal, the Government challenges the concurrent 360-month sentences that the district court imposed for Jim‘s aggravated sexual abuse convictions. The Government specifically contends that the district court erred in its interpretation of
To calculate Jim‘s offense level for his aggravated sexual abuse convictions, the district court had to apply
That second definition of serious bodily injury cannot apply when the sentencing court is calculating the offense level for an
The district court concluded that, in deciding whether the victim‘s injuries meet this definition of “serious bodily injury,” the court could not, as a matter of law, consider any injuries that resulted directly from the underlying sexual abuse itself. Jim, 877 F.Supp.2d at 1037-38. The district court based that conclusion on the language of
Admittedly that application note‘s language—in particular, the phrase “injury means conduct“—is perplexing. But read in context, we conclude that language means that the sentencing court, in calculating a sexual abuse defendant‘s offense level, cannot apply the serious-bodily-injury enhancement based on the fact that the offender committed a sexual abuse offense. It is that “conduct which already is
Moreover, attempting to distinguish between injuries suffered as a direct result of the sexual abuse and those suffered during the incident but before or after the sexual abuse is an unworkable requirement. In many cases, it will be difficult to separate those injuries that resulted directly from the sexual abuse from injuries suffered while the offender was forcing the victim‘s submission, for example, or from injuries compelling the victim‘s silence.
For these reasons, we conclude that a sentencing court can consider injuries the victim suffered resulting directly from the sexual abuse as well as those suffered during relevant conduct surrounding that offense, see
Our interpretation of
The district court here declined to consider the victim‘s injuries that resulted directly from the sexual abuse in an effort to avoid double-counting the defendant‘s conduct. Jim, 877 F.Supp.2d at 1039-40. Generally, “impermissible ‘double counting’ occurs when the same conduct on the part of the defendant is used to support separate increases under separate enhancement provisions which necessarily overlap, are indistinct, and serve identical purposes.” United States v. Joe, 696 F.3d 1066, 1070 (10th Cir.2012) (internal quotation marks omitted). The district court worried in this case that basing the serious-bodily-injury enhancement on injuries resulting directly from the sexual abuse would impermissibly double count the victim‘s injuries, which “are already taken into account in the base offense level for criminal sexual abuse,”
Having determined that the district court erred in refusing to consider whether
For the foregoing reasons, we AFFIRM Jim‘s convictions. But we REMAND, directing the district court to VACATE Jim‘s two concurrent 360-month sentences and to resentence him after considering whether to apply
Notes
Rule 410(a) provides:
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
- a guilty plea that was later withdrawn;
- a nolo contendere plea;
- a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
- a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
See also