UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos ADAME-HERNANDEZ, Defendant-Appellant.
No. 12-1268.
United States Court of Appeals, Seventh Circuit.
Decided Aug. 18, 2014.
763 F.3d 818
Argued May 29, 2013.
ny drug conviction increased her mandatory minimum sentence.
V. Conclusion
For the foregoing reasons, Jones‘s convictions on Count Eleven and Count Twelve are AFFIRMED, and his sentence is VACATED and REMANDED for resentencing consistent with Dorsey; Drake‘s conviction is AFFIRMED and her sentence is VACATED and REMANDED for resentencing consistent with Alleyne; Young‘s conviction is AFFIRMED; and Mockabee‘s sentence is VACATED and REMANDED for resentencing consistent with Peugh.
Before WOOD, Chief Judge, and BAUER and TINDER, Circuit Judges.
TINDER, Circuit Judge.
This appeal arises from the same underlying criminal case that we address in another opinion issued today, United States v. Kenneth Jones, Ramone Mockabee, Devon Young, and Elisha Drake, Nos. 11-2267, 11-2288, 11-2535 & 11-2687. Defendant-Appellant Juan Carlos Adame-Hernаndez (Adame) sold cocaine to Dominic Robinson and was thereby an upstream source for the cocaine distributed by the Mockabee organization discussed at length in that opinion. Adame‘s appeal had been consolidated with the others but because his appeal arises from substantially different circumstances that are unique to him, we have withdrawn the consolidation of his appeal to address it separately in this opinion. Adame‘s appeal focuses exclusively on a plea bargain gone awry, and we will therefore recite only the facts relevant to his plea.
BACKGROUND
In 2010, Adame was charged along with numerous other defendants with a criminal drug conspiracy as well as cocaine distribution and illegal reentry of a previously deported alien subsequent to a conviction for the commission of an aggravated felony. Seе
On January 3, 2011, having entered into a binding, written plea agreement with the government under
On that same date, the district court held a change of plea hearing. The court addressed Adame personally and discussed the nature of Count One, the possible sentencing range, and his understanding that, by pleading guilty, he was waiving certain constitutional rights. See
The parties to this agreement acknowledge and understand that while the Court is not a party to this agreement,
in the event the Court determines the sentence should not be as set forth herein and therefore rejects the plea agreement, the Court will so advise the defendant, who may then withdraw his plea of guilty, pursuant to Fed.R.Crim.P. 11(c)(4) [sic, the correct provision is Rule 11(c)(5) ].
The court also discussed whether the plea was voluntary. See
As expected, the probation office prepared a presentence investigation report. The report recommended that Adame be found responsible for more than 150 kilograms of cocaine, resulting in a base offense level of 38. Adame raised two objections to the report: he denied that he personally delivered over 150 kilograms of cocaine, and he objected to a fact underlying an adjustment for his aggravated rоle in the offense.
About six months after the guilty plea, on July 7, 2011, Adame returned to the district court for sentencing. The record does not disclose that he had any prior notice that anything other than sentencing would occur at that hearing; there is no indication that he knew the government would claim he had breached the plea agreement. At the hearing, defense counsel asserted that while Adame would maintain that he personally delivered less than the amount of cocaine attributed to him in the presentence report, he understood that he could be held accountable for amounts based on his involvement in the conspiracy. The prosecutor argued that Adame had thereby objected to the base offense level stipulated to in the plea agreement and asserted that this constituted grounds to find a breach of the plea agreement. The prosecutor also asserted that the trial evidence would establish that Adame personally distributed over 150 kilograms of powder cocaine: a government witness would testify that he personally received more than that amount from Adame. The prosecutor questioned whether Adame had accepted responsibility for his conduct and asked the court to set aside the plea and set the case for trial. Notwithstanding this request, the prosecutor expressed uncertainty over whether the alleged breach was material, at one point stating, “Is that breach material? I don‘t know.” The defense counsel argued that Adame‘s position did not amount to a breach of the plea agreement and did not affect the sentence. Sent. Tr. 16, July 7, 2011. (“[R]egardless of whether we win these points or lose these points, it doesn‘t change the number of months that are recommended in the plea.“) Yet when questioned whether the plea agreement included a stipulation to the offense level that involved a drug quantity calculation, defense counsel responded in the affirmative.
The district court stated that if the defendant “[is] backing off the quantity, that seems to me to be inconsistent with your stipulation.” Id. at 18. The court added that it seemed that Adame was taking a position that was “inconsistent with the bargain that he struck with the government.” Id. Then the district court turned to whether the agreed-upon sentence was
Unaddressed at this point is whether under 3553(a) this is a sentence that the Court could accept. I‘m the third-party to this agreement, ... and I have my own difficulties with this agreement because, for one thing, Mr. Adame comes in here close to the end of the proceedings—and I know what everybody got because I meted out those sentences. For him to have been in the leadership role that he was in in this conspiracy and a supplier of such a huge amount of cocaine, given the other sentences, I don‘t know that 204 months is something that I can accept either.
So ... the appropriate and well advised position is to note the breach, and withdraw the Court‘s finding of guilty in accordance with this plea agreement, and set the matter for trial and return to the not guilty plea that was originally entered for the defendant.
Id. at 20. The court concluded that the agreed sentence was “not consistent with the other sentences that have been meted out given the relative culpability of the defendants,” a factor under
Immediately after vacating its acceptance of the guilty plea, the district judge reset Adame‘s case for trial in October 2011. However, on August 24th, the Grand Jury returned a second superseding indictment against Adame. This version of the indictment also contained three counts, with Counts Two and Three being identical to the prior iterations. Count One also described a cocaine distribution conspiracy, similar to at least a part of the conspiracy described in the two prior versions of that charge. However, thе conspiracy count in the second superseding indictment focused on Adame‘s distribution of large quantities of powder cocaine down the chain of distribution, and it omitted much detail from the first version of Count One concerning Mockabee‘s subsequent redistribution of crack cocaine through the Indianapolis conspirators. Nonetheless, the government does not contend that the conspiracy charged in the second superseding indictment is different from the one previously alleged; and as noted below, a subsequent factual presentation by Detective Clark makes clear that the conspiracy charged in the second superseding indictment was the same one to which Adame had earlier pleaded guilty.
Adame filed a written waiver of an initial appearance and formal arraignment on the second superseding indictment. It is important tо note that Adame‘s waiver does not contain a plea to the charges in the second superseding indictment, despite the fact that the form of such waivers posted on the district court‘s web site suggests that the waiver contain the language: “I hereby enter a formal plea of not guilty to the Superseding Indictment.”1
Shortly before the reinstated trial date, on October 3rd, Adame filed a document entitled “Renewed Petition to Enter a Plea of Guilty,” which was followed two days
However, the petition filed by Adame in October 2011 contains certain individualized language that appears to have been drafted specifically for his case. The first clue is that it is entitled a “renewed” petition. Then the text of Adame‘s petition begins by stating that he had previously entered a plea agreement pursuant to
At the hearing on October 5th, the district court again addressed Adame personally, discussing the charges against him and the maximum penalties. But there was some confusion. The judge, noting what she described as a “convoluted or complicated procedural history” of the case, initially indicated that even though Adame had previously entered a guilty plea, she “withdrew the plea” because he had not been “entirely accepting of the facts the government intended to prove at trial.” Plea Hrg. Tr. 4, Oct. 5, 2011. That much was a correct recitation of what happened. But later the judge indicated that she had “refused to accept his plea” to the prior indictment. Id. at 6. Despite that description, the judge began an explanation of the plea agreement under
Nonetheless, the court continued to question Adame about the petition as though it was an agreement, id. at 10, and then proceedеd through what was a fairly standard Rule 11 colloquy otherwise. It should be noted, though, that Adame was given a rather jumbled explanation of his appellate rights. After confirming with
You have a separate right to appeal, even if you enter your plea, even if you plead guilty to these charges. That‘s a right to appeal the sentence that‘s imposed. So you have not given up that right, but you have given up your right to appeal, we say, the merits of the case. That means the sufficiency of the Government‘s evidence that underlies these charges. You‘ve given that right of appeal up. Do you understand that?
Id. at 13. Despite Adame‘s affirmative answer to that question, it is hard for us to discern what he may have understood from that portion of the colloquy. The district court did not explain whether Adame would also waive his right to appeal a ruling that occurred before his latest plea was accepted, but did not go to the “merits” of the case or the sufficiency of the evidence against him.
Detective Clark again provided a factual basis for the plea to the conspiracy count, which was essentially the same background that he had presented at the January guilty plea hearing along with a few additional facts relating to how Adame came to join the conspiracy. This indicates that, despite differences in the wording of the conspiracy counts between the second superseding indictment and the prior ones, they all pertained to the same conspiracy. Clark also presented a brief synopsis of facts that would support the illegal re-entry charge in Count Three, facts which had not been addressed in the earlier hearing. When asked how he pleaded to Counts One and Three, Adame responded “guilty.” Announcing that his plea was knowing, voluntary, and supported by the facts, the court indicated that it was accepting it and adjudging him guilty of the two counts.
Whereas the original presentence report had recommended a two-level enhancement for Adame‘s role in the offense, the report following the October 2011 plea recommended a three-level enhancement. Under the new calculation, Adame was subject to an advisory guidelines range of 262-327 months for Count One. The district court subsequently held a sentencing hearing and sentenced him to 300 months in prison on Count One and 240 months on Count Three, to be served concurrently.
Adame now appeals to this court, seeking the reinstatement of his initial plea agreement along with the joint recommendation of a 204-month sentence.
ANALYSIS
Adame argues that the district court erred in finding that he breached the January 3, 2011, plea agreement and in vacating his plea. In the alternative, he argues that even if we conclude that he breached the agreement, he did not commit a substantial breach. He also maintains that the government breached the plea agreement by urging the court to vacate his plea and then encouraging the court to impose a harsher sentence than the agreed-upon 204 months.3
Generally, “a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has [entered a guilty plea], he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also Gomez v. Berge, 434 F.3d 940, 942 (7th Cir. 2006) (“[A]n unconditional plea of guilty operates as a waiver of all formal defects in the proceedings ... that occurred before the plea was entered.“). The government maintains that Adame‘s guilty plea on October 5 waived any formal defect occurring before then, including Adame‘s right to contest the district court‘s rejection of his plea agreement and any alleged breach of that agreement by the prosecutor. We disagree. But before we discuss the waiver issue, we must review the proceedings chronologically to determine how this case reached this peculiar posture.
At the January 3 change of plea hearing, Adame pleaded guilty to the conspiracy charged in Count One of the superseding indictment. “A defendant has no absolute right to have a court accept a guilty plea, and a court may reject such a plea in the exercise of sound judicial discretion.” United States v. Ajijola, 584 F.3d 763, 766 (7th Cir. 2009); see also Santobello v. New York, 404 U.S. 257, 262 (1971). Even so, “a court cannot arbitrarily reject a plea, and must articulate on the record a ‘sound reason’ for the rejection.” United States v. Hernandez-Rivas, 513 F.3d 753, 759 (7th Cir. 2008) (citation omitted). Recognizing that the district court has significant discrеtion in accepting or rejecting a guilty plea, we review its rejection of a guilty plea for an abuse of discretion. Id.
But here, the district court accepted Adame‘s guilty plea and adjudged him guilty of the offense charged in Count One. The acceptance of Adame‘s guilty plea was “a judicial act distinct from the acceptance of the plea agreement itself.” Wayne R. LaFave et al., 5
Nothing in
The district court did not follow these procedures. Having accepted Adame‘s guilty plea, it decided at the July 7 hearing that it could not accept the plea agreement (which it was authorized to reject), but then on its own withdrew the plea. The court did not give Adame the choice to stand by his guilty plea or withdraw it. Without question, Adame wanted to persist in his plea (and even offered to abandon his objections to the presentence report) and “proceed with the sentencing ... as the plea is written.” The district court had no authority under
Of course, a district court may reject a guilty plea under circumstances outlined in Rule 11(b). Santobello, 404 U.S. at 262. For example, the court may reject a plea if it determines that it is supported by an insufficient factual basis or that the plea was not knowing and voluntary. Cf. Hernandez-Rivas, 513 F.3d at 760-61 (district court did not abuse its discretion in refusing to accept guilty plea after repeated аttempts to obtain a factual basis from the defendant failed and defendant claimed he did not understand that his actions constituted a crime). See also United States v. Bahena-Navarro, 678 F.3d 492, 496 (7th Cir. 2012) (district court did not abuse its discretion in rejecting guilty plea where defendant declined to waive certain trial rights). But just as the district court “cannot arbitrarily reject a plea,” Hernandez-Rivas, 513 F.3d at 759, surely it cannot arbitrarily withdraw a plea; it must articulate at least a “sound
We understand the district court to have withdrawn Adame‘s guilty plea because (1) it believed he had breached the plea agreement, and (2) it found a 204-month sentence inconsistent with the other sentences meted out to the codefendants—it was “too low.” Taking the latter reason first, a district court may reject a Rule 11(c)(1)(C) plea agreement based on its belief that the agreed-upon sentence “would be too low to achieve the sentencing goals enumerated in
Similarly, the court lacked the authority to withdraw Adame‘s plea even if he had breached some material term of the plea agreement. “[A] defendant‘s substantial breach of an unambiguous term of a plea agreement frees the government to rescind the deal.” United States v. Kelly, 337 F.3d 897, 901 (7th Cir. 2003). It does not, however, permit the district court to rescind the plea itself and prohibit the defendant from pleading guilty. The court apparently misapprehended its authority to do so. Therefore, in withdrawing the plea, the district court abused its discretion and committed legal error.
To compound matters, the district court also erred in believing that Adame had breached the plea agreement. “Where, as here, there is no dispute about the relevant facts, we review de novo the interpretation of a plea agreement.” United States v. Munoz, 718 F.3d 726, 729 (7th Cir. 2013). “Plea agreements are contracts, and should be interpreted according to principles of contract law. Like other contracts, plea agreements should be enforced consistent with the intent of the parties and the language of the agreement.” United States v. Hernandez, 544 F.3d 743, 750-51 (7th Cir. 2008) (citations omitted); see also United States v. Atkinson, 259 F.3d 648, 654 (7th Cir. 2001) (“[W]e review the language of the plea agreement objectively and hold the government to the literal terms of the plea agreement.“) (citation omitted).
Pursuant to the agreement, the parties entered into a binding stipulation that the “base offense level for the offense charged in Count One of the Indictment is 38, pursuant to
It is well known that, under the Sentencing Guidelines, the amount of drugs involved in a drug conspiracy largely determines a defendant‘s base offense level. United States v. Garrett, 757 F.3d 560, 572-73 (7th Cir. 2014). A base offense level of 38 corresponds to 150 kilograms or more of cocaine.
Adame‘s objection to the assertion that he personally distributed over 150 kilograms of cocaine did not jeopardize the calculation of the drug quantity for which he could be held accountable. Nor was his objection inconsistent with his agreement that his base offense level was 38, given that he could be held accountable under
That brings us back to the government‘s waiver argument. We readily acknowledge the general rule that “an unconditional plea of guilty operates as a waiver of all formal defects in the proceedings ... that occurred before the plea was entered.” Gomez, 434 F.3d at 942. The narrow exception to the general waiver rule has been limited to jurisdictional issues. United States v. Phillips, 645 F.3d 859, 862 (7th Cir. 2011) (“As a general rule, a defendant who pleads guilty waives his right to appeal all non-jurisdictional issues.“). A jurisdictional issue refers not to subject matter jurisdiction, but rather to “a court‘s statutory or constitutional authority to hale the defendant into court.” Id. In other words, a guilty plea does not waive a challenge to an error if, as a result of that error, “a court has no power to enter the conviction.” United States v. Seybold, 979 F.2d 582, 585 (7th Cir. 1992).
The Supreme Court recognized in Menna v. New York, 423 U.S. 61, 62 (1975), that a guilty plea would not necessarily extinguish a claim under the Double Jeopardy Clause: “Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” However, the Court later narrowed this rule in United States v. Broce, 488 U.S. 563, 575-76 (1989), by holding that, in order to circumvent a prior guilty plea on double jeopardy grounds, a defendant must show that he faced trial or punishment from two indictments that were duplicative “on their face.” In other words, a defendant may not “seek further proceedings at which to expand the record with new evidence” in order to prove that he has been subjected to double jeopardy. Id. at 575. Rather, the double jeopardy must be apparеnt “at the time the [second] plea was entered on the basis of the existing record.” Id.
Adame‘s case fits within this exception to the general waiver rule. He has in essence suffered double jeopardy. The district court withdrew the first plea through its improper application of Rule 11, so Adame has framed the problem as a violation of the federal rules, not the Double Jeopardy Clause. But the district court‘s error raises the same jurisdictional concerns—namely, the district court‘s lack of authority to hale him into court to face a subsequent indictment. See Blackledge v. Perry, 417 U.S. 21, 31 (1974) (finding an exception to the general waiver rule—even though its “judgment ... [wa]s not based upon the Double Jeopardy Clause“—because the case implicated similar jurisdictional concerns). Once the district court accepted his plea the first time, Adame was placed in jeopardy. “[J]еopardy ... attaches with acceptance of [a] guilty plea.” U.S. ex rel. Stevens v. Circuit Court of Milwaukee Cnty., 675 F.2d 946, 948 (7th Cir. 1982) (citation omitted); see Dawson v. United States, 77 F.3d 180, 182 (7th Cir. 1996). Neither the government nor the district court had the authority to subject him to the same indictment again. The second superseding indictment presented the same charges for the same conspiracy, and other related acts, as its predecessor. Although the factual description of the conspiracy in Count One changed somewhat, the second superseding indictment clearly referred to the same conspiracy. The government does not contend otherwise. On its face the second superseding indictment was an attempt by the government to redo a plea bargain process that it felt had gone badly, for reasons that remain inexplicable.
We have held that a guilty plea “forecloses any opportunity to contest any alleged antecedent constitutional deprivations.” Gomez, 434 F.3d at 943. But here Adame is not complaining of a violation “antecedent” to his second guilty plea. The acceptance of the second guilty plea completed the violation. It was an act the district court was utterly without power to perform once Adame pleaded guilty to the first superseding indictment. Adame‘s claim therefore raises a jurisdictional issue that is not waived by a guilty plea.
In addition, we are mindful of our authority to “to ensure the proper application of [the Federal Rules of Criminal Procedure].” United States v. Vinyard, 539 F.3d 589, 595 (7th Cir. 2008) (citation and quotation marks omitted). In Vinyard we granted the extraordinary writ of manda- mus
In sum, it would be circular to say that Adame lost the ability to contest systematic and pervasive errors in the district court‘s handling of his plea because he pleaded guilty. Indeed, application of the general waiver rule in this context would have absurd consequences. It would compel a defendant in Adame‘s position to forgo his second guilty plea and instead head to trial, all so that his original plea would be honored. The entire point of his initial plea was to avoid a trial and the potentially harsher punishments that go with it. That benefit would be lost if Adame were forced to go to trial—in other words, to put his liberty in jeopardy a second time—to vindicate the plea. See Abney v. United States, 431 U.S. 651, 660 (1977) (“[T]he rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after сonviction and sentence.“).
The risk of prosecutorial manipulation is also a concern. In Blackledge, 417 U.S. at 28, the Supreme Court held that a guilty plea did not waive the petitioner‘s due process challenge because “[a] person convicted of an offense is entitled to pursue his statutory right ... without apprehension that the State will retaliate” by improperly haling him back into court. Likewise, the government may sometimes be tempted to scrap a judicially accepted plea and issue a new indictment to add factual support or correct procedural infirmities. But it cannot do so, any more than it can retry an already-convicted defendant in order to obtain a special verdict rather than a general one. In this case the government obtained a guilty plea, pointed to a trivial “breach” to get the plea with- drawn,
There is one final obstacle to Adame‘s appeal. We have held that even “double jeopardy rights may be waived by failing to preserve the issue for appeal.” Gomez, 434 F.3d at 943. But Adame plainly filed a motion to reinstate his earlier plea, and therefore sufficiently raised the issue before the district court. We are particularly reluctant to hold that Adame failed to preserve this issue for review because the district court did not properly articulate the extent of his appeal waiver. The court did not clearly inform Adame that a guilty plea would deprive him of his ability to appeal the court‘s revocation of his initial plea. See United States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997) (“For an appeal waiver to be valid, it must be express and unambiguous, and the record must clearly demonstrate that it was made knowingly and voluntarily.“) (citations and internal quotation marks omitted). Adame did all he could to raise the issue given the complicated posture of this case.7 A finding of waiver would be inappropriate here in light of this strange, and hopefully unique, procedural history.
Our holding is an exceedingly narrow one, аnd pertains only to cases in which a defendant pleads guilty after the district court has already accepted a guilty plea to charges that, on the face of the indictment or other charging document, are identical to those the defendant pleads to in the later proceeding. This case fits well within the exception to the general waiver rule already recognized in Menna and Blackledge, and a guilty plea will still act to bar typical objections against the district court‘s handling of plea agreements and related issues.
We reach past Adame‘s second guilty plea and reverse the district court‘s errors in vacating the plea agreement for his supposed breach. Adame is entitled to the benefit of his bargain. On remand, the district court should advise the parties whether it accepts or rejects the original plea agreement and follow the procedures laid out in Rule 11. Because Adame did not breach the plea agreement, the United States must keep its promise not to file an information concerning his past criminal history pursuant to
CONCLUSION
For the foregoing reasons, we VACATE Adame‘s convictions and REMAND with instructions to allow Adame to maintain his guilty plea and be sentenced under the terms of the parties’ written plea agreement executed on January 3, 2011. Circuit Rule 36 shall apply on remand.