United States v. Sura

FLAUM, Before RIPPLE and Stepanovic sought immigration before the ROVNER, Judges. courts, Circuit noting only that his “relief applica-

tion” was denied. This court has re- peatedly noted that a stay ON motion to MOTION FOR STAY OF re- RUNNING moval that does not OF set forth VOLUNTARY information DEPARTURE needed for this court to properly adjudi- PERIOD AND RESPONDENT’S cate the matter will be denied. See Zheng OPPOSITION TO PETITIONER’S Mukasey, v. Cir.2007); 507 F.3d 1074 MOTION FOR STAY OF RUNNING Gonzales, 1133, Koutcher v. OF VOLUNTARY F.3d DEPARTURE (7th Cir.2007). A PERIOD bare-bones motions seeking stay of voluntary departure is PER CURIAM. equally unhelpful. more Without informa- This matter is before the court on the tion, this court cannot assess the likelihood petitioner’s stay motion for of running of Stepanovie that Mr. could succeed in dem- voluntary departure period, filed coun- onstrating that the BIA erred dismiss- sel for petitioner 30, on November ing respondent’s and on the opposition to Accordingly, it is ordered this mo- petitioner’s stay motion for of running of tion is denied. voluntary departure period, by coun- filed sel for respondent 13, Denied on December Motion 2007.

Voluntary departure alter removal,

native to which allows an alien to

leave the United States at his or her own

expense period within certain of time. 8 (b). 1229c(a),

U.S.C. voluntary Once de parture has granted by been the immigra America, UNITED STATES of service, tion may this court toll the volun Plaintiff-Appellee, tary departure period pending appeal. v. Lopez-Chavez Ashcroft, (7th Cir.2004). A petitioner seeking a SURA, James Defendant-Appellant. stay voluntary departure demon No. 05-1478. strate likely that he is to succeed on the merits. Lopez-Chavez, 383 654- Appeals, Court 55; INS, Sofinet Seventh Circuit. Argued Nov. 2006. Mr. Stepanovie makes attempt no Decided Dec. 2007* to describe arguments on appeal, let Opinion Published Jan. 2008. alone demonstrate that he would succeed on the merits. Stepanovie’s Zvonko three-

paragraph nothing motion does more than general

make a request stay. for a

motion and attached affidavit from counsel

even fail to state type what of relief Mr.

* opinion This originally type- script released on December 2007. EASTERBROOK, Judge, Chief

Before WOOD, Judges. Circuit and POSNER WOOD, Judge. Circuit II Be- War owned World Sura James As far retta, in his home. kept he which reveals, attempt- Sura never record as this ammuni- he nor did own gun, to use the ed was, however, a convicted for it. Sura tion was found felon, the Beretta so when in hot up he wound home his unlaw- a felon water, being charged a firearm. See fully possession 2004, Sura early 922(g)(1). § U.S.C. included plea his plead guilty; agreed his con- appeal waiving right his clause court The district and sentence. viction him a 30- gave plea accepted chal- Sura now wants sentence. month so, sentence, to do but in order lenge that his us that first must convince he so, can do If he be set aside. should waiver challenge like to would he advisory Sentenc- application court’s 2K2.1(b)(2) Guidelines, which call ing felon who for a sentence for a reduced sport- solely for used a firearm possesses purposes. ing or collection on argument proceeds primary sur perform we can assumption excising agreement, plea on gery waiver contains the paragraph have often But we See, e.g., option. that this is held Lockwood, F.3d (7th Cir.2005); v. Cies United States Office of (argued), A. Stephen Ingraham Cir. lowski, 363-64 Milwaukee, Attorney, the United Whitlow, 2005); United States WI, Plaintiff-Appellee. in the asks however, alternative, to be relieved (argued), Office

Douglas J. Beevers ground altogether, Defender, plea Springfield, Federal Public Approaching involuntarily. into it Parsons, V. Kent entered H. IL, Richard must, basis, as we latter on the De- Anderson, Public of the Federal Office that he has shown conclude IL, Defendant-Appel- we Peoria, fender, accept voluntarily knowingly and did lant. (including appel- its waiver of his Whether properly accepted rights) late and thus the district court lies at the heart of this appeal, and so we plainly accepted when it describe the court’s plea. erred inquiries under Fed.R.CRIm.P. 11 in some We therefore vacate the and remand Initially, detail. the court asked if Sura he this case to the court for further medication; any was on replied Sura that proceedings. Following he was. up, the court asked any “would of that your medication affect I understanding of what’s happening here appar- turned he Until Sura today?” replied Sura ambiguously, “I ently had no run-ins with the law. Unfor- so, don’t think sir. But I say can’t for tunately, he seems to have undergone sure.” Sura also told the court that Hyde-like change year, that when he be- was undergoing psychological treatment. gan accumulating string of convictions The court noted that represented Sura was offenses, assault, including for sex sexual counsel, but the court did not ask Sura enticement, child and disorderly conduct. if his counsel had either reviewed probation. As of Sura was on agreement or discussed his case with him. Instead, July probation the court only, officer asked Sura “Are rifle, you representation searched his home and found a satisfied with the three you [your attorney]?” have received from shotguns, pistol, a Beretta and ammuni- any questions and “Are there you may guns The were turned tion. over to Sura’s [your have of attorney] point?” son, this probation and Sura’s officer warned Sura, The court also asked “knowing the possess him that guns. he could rights you’re giving up, and penal- advice, Disregarding this Sura later re- involved, ties your still wish and still trieved pistol, the Beretta which awas your desire to enter a of guilty to this souvenir that a friend brought home count,” “Yes, replied, to which Sura sir.” after II given World War to Sura in reiterated, The you court “And doing are 2003, police the 1950s. In discovered the you because that’s what want to do?” again Beretta possession. once replied, Sura question “That’s difficult to According government, police to the answer, Your Honor. But I say have to consent, searched Sura’s home with his yes. I do have a conviction of a felony on locating the Beretta in the basement. record, my I in possession was (Sura claims that he gun delivered the to Beretta, I plead guilty.” so have to police. dispute This factual has no specifically asked Sura if he here.) analysis bearing our “that signing understood the Plea (by In October Sura then almost Agreement you’re giving up rights old) years indicted being a felon that are contained Agreement,” Plea firearm; in possession of a charged he was “Yes, to which replied, sir.” The court possession of the Beretta. After then listed some of rights, those including negotiations with the government, he trial, right right a jury, signed a plea agreement, under which he trial, standard of evidence at a and the agreed plead guilty but reserved the right testify or remain silent at trial. It challenge the calculation of his however, nothing, said about the waiver of earlier, sentence. As we noted appellate rights, thereby omitting a point ll(b)(l)(N). included a waiver specifically of all his required by Rule appellate rights. The court also “anyone asked whether subsequent ... a without completed you to been get promises threats or made of 13 an offense level Using in violation.” contained from what’s ... aside this do VI, history category criminal replied, Agreement,” Plea sentencing advisory court calculated “No, sir.” imprisonment. 41 months’ of 33 to range argued hearing, Sura sentencing At his that Sura was on the fact primarily Based of U.S.S.G. application sentencing, the the time of years old at 2K2.1(b)(2), the Guide- reduces court, the ultimate standard noting that if a defen- to a level level lines offense reasonableness, below-Guide- imposed a possession unlawful convicted of dant is (Had the sentence of months. lines all ammunition “possessed a firearm but the use argument for accepted Sura’s court sporting lawful solely for and firearms 2K2.1(b)(2), level would the offense of collection, did not unlaw- purposes (base 2 for num- level 6 plus have been 5 unlawfully use otherwise discharge or fully firearms, acceptance of minus 3 for of ber ad- Sura or ammunition.” firearms such in someone like Sura responsibility); by law knowingly broke the mitted VI, the recom- History Category Criminal court, He told the the Beretta. possessing been 9 to 15 range would mended have say you and I come before “I wish could months.) tri- sentencing, Sura’s After the I have ... did [but] a mistake is all this notice of filed lawyer properly al Sura’s But he my possession.” in Beretta the later, appointed was new counsel appeal; explained, oh represent to trea- Something Why I have I’ve did it? Something years. for over 50 sured II into actually carried that some soldier A I II. in World War combat with him gun per se. being at as never looked it ques- the turns on this Because I for it. any ammunition owned Never have his is entitled to tion whether I fire it. afraid to have been would aside, by looking begin we set guilty plea I was it worked until didn’t even know 11, safe- a “guilty-plea at Fed.R.CRImP. ballistics] your [police people told that Ruiz, 536 U.S. guard! ](cid:127)” fired it. had 2450, L.Ed.2d 586 622, 631, 122 S.Ct. (2002). out the generally spells apply court declined The district fol- court must that a district procedures The court to Sura’s sentence. reduction plead a defendant wishes low when noting that Sura by justified its refusal “to assist exists guilty. It revoked probation previously had constitutionally re- making firearms and am- of possession “because a defendant’s sword, quired determination ... [specifically] munitions ... voluntary [and] truly set, guilty plea knife, arrow [and] bow and hunting the time the record at complete produce a concluded that The court hatchet.” relevant to factors pat- entered “follow[ed] of the Beretta possession determination.” it voluntariness repetition makes of notice tern States, 394 U.S. 459, v. United McCarthy it from the harmless least so—at elevates (1969). L.Ed.2d by the defense.” characterization made meticulously the Rule is “Thus, more justified its decision further court to discour- to, it women, the more tends adhered practice groping noting Sura’s expeditious to enable more age, or least su- at periods [Sura’s concluding that “all friv- of, and often numerous disposition never probation] release or pervised points: plain on the constitutional va- non-structural forfeited olous ... attacks Id. lidity pleas.” only. error Although a new subsection On December there are some differences detail be 11(c), to what was then Rule was added case, and our lan tween Vonn Court’s increasing prac- “specifically to reflect guage speaking leaves no doubt that it was plea agree- including provisions tice of all Rule 11 about violations which require ments which defendant just objection, defendant makes no appellate rights.” certain Commit- waive Id.; see also paiticular one before it. Note to the 1999 Amendments. As tee Murdock, overhaul in part Rules’ (6th Cir.2005) (relying amendment was relocated to Rule apply plain plea agree error review ato ll(b)(l)(N) only” “stylistic change. as a regarding appellate ment case waiver of Committee Note to the 2002 Amendments. As the Vonn Court rights). explained, force the time of er [w]hen considers guilty plea; requires qualifies plain, ror that the tables are defendant be told the court “the terms demonstrating turned on the substan- any plea-agreement provision waiving of tiality of on a effect defendant’s right appeal collaterally or to attack rights: at defendant who sat silent ll(b)(l)(N). the sentence.” Rule Rule trial has the burden to show that his 11(b) leaves no doubt that the court is rights” “substantial were affected. required upon topics to touch all of the Olano, [725,] States [United 507 U.S. v.] says It listed there. before the court 1770, [113 734-735 S.Ct. 123 L.Ed.2d may accept plea guilty, “the court (1993) 508 And because relief on ]. must address the defendant personally in plain-error review is the discretion of court,” open during colloquy, and that this court, reviewing a defendant has the “the court must inform the defendant of, persuade further burden to the court and determine that the defendant under- “ ‘seriously that the error affect[ed] stands,” each item in the list that follows. fairness, integrity public reputation added). Id. (emphasis sentencing ” Id. judicial proceedings.’ at 736 [113 place February took and so it United States v. (quoting S.Ct. 1770] by is clear that the district court erred Atkinson, 157, 297 U.S. 160 S.Ct. [56 failing to anything ap- mention about the (1936)). 391, 80 L.Ed. 555] pellate accepted waiver it guilty when plea. 62-63, at 122 S.Ct. 1043. Under Benitez, United States v. 542 Sura, however, objected to never this omission before the district court. Under- “obliged Sura was show rea standably enough, argues that he did probability sonable but for the [Rule not become aware of the flawed Rule error, he would not have 11] entered the process until he examining possi- was plea.” Id. S.Ct. 2333. ble Even if the forfeiture is not however, amended, surprising, the fact remains Before Rule was we had Wenger, held United States v. preserve he did not properly argu- (7th Cir.1995), United ment In before district court. that a district Vonn, States Supreme appeal during Court held failure to address an waiver objections colloquy forfeited to violations of the Rule 11 did not warrant set- all ting involuntary. Rule must be reviewed like other aside a as statements, as the evi- as well “warnings dant’s particularly noted We government.” proffered dence not are be appeal waivers about ll’s that “Rule Blalock, in Rule found” (quoting Id. at 282. We formulary.” Cir.2003)). Id. value 686, 688-89 agree- [plea] “[i]f also commented evaluating whether the defendant’s compliance taken in voluntary, and ment is the district “despite was valid guilty plea the waiver then with specific of a court’s omission at 283. Since honored.” Id. must be on the defen- warning,” we focused waiver Rule 11 with compliance taken Loutos, 383 F.3d at background. dant’s alert specific kind of very must include particularly so- 619. That defendant that we of the to a waiver attorney practicing he was a phisticated: under the rule required noted was legal experi- nearly four decades changed and “formulary” has 1995. The con- “familiar with ence and was therefore Thus, rationale of more. requires now carefully read docu- the need to tracts and finding that with a is consistent Wenger in nature and that are contractual ments acceptance because Sura’s This, Id. in combi- party.” signed compliance taken in agreement was “acknow- nation with the defendant’s not have been might it also with Rule oath that he understood ledgement] under voluntary. plea, that he of his consequences or coerced to pressured been had not ll(b)(l)(N), the addition of Since that his was volun- plead guilty, and cases, in four addressed it we have court’s conclude the district tary” led us to nonprecedential. were three of them omission Id. was harmless. Loutos, decision Loutos, then, we (7th Cir.2004), Following and only publish- is the F.3d 615 circum- totality of the look to the have considered must in which we opinion ed negotiation of (or surrounding the stances prede- of the rule its that section ac- and the court’s Loutos, plea agreement cessor). howev- at 617-18. Id. whether plea to determine ceptance of the er, objected to the omission the defendant failure to mention court’s the district plea, and his and moved withdraw appellate of agreement waiver plea us was whether question before so colloquy constitutes during rights harmless, it not whether was error was evidence out- includes plain error. This Nonetheless, analysis of Rule plain. Vonn, 535 U.S. colloquy. side the Rule Loutos, its treat- particular and in 11 in 75, Throughout 1043. at S.Ct. review, re- appellate ment of waivers empha Benitez as process, first noted useful. Loutos mains proof. 542 sized, the burden of bears colloquy Rule 11 is to purpose of a “[t]he 2333. at U.S. at 619. or mistake.” Id. expose coercion The court then observed context, recall in this important, It is the voluntariness challenging colloquy is that Sura a Rule 11 validity of [t]he attempted in an plea agreement the circum- his totality based on proceed- in a collateral appeal, not stances, factors as “the direct including such Timmreck, 441 ing. In United States charge, the defen- complexity of the L.Ed.2d 634 99 S.Ct. intelligence, age, and edu- level of dant’s (1979), held that defendant the Court cation, rep- was the defendant a con- relief from to collateral counsel, inquiry not entitled by resented may have Rule 11 merely because viction and the defen- during plea hearing accepted. plea colloquy. his was These decisions demon- been violated when Importantly, 2085. “plain Id. at strate that error” is not an automat- stressed that the re- in Timmreck synonym Court ic for “no error.” The Sixth argued “that he was spondent had Circuit, example, plain error found actually special parole unaware of the term where the defendant was not told about properly if or he had been advised appellate rights the waiver of his pleaded he would not have judge, the trial agreement during colloquy, the Rule 11 Sura, guilty.” Id. at 99 S.Ct. 2085. and the record lacked other indication course, argues things: now both those specific knowledge of the defendant’s although may plea agree- he have read the Murdock, that waiver. United States v. ment, meaning he did not understand the supra, 498-99. waiver, that he would not of the whole, there relied on the record as a (He pleaded guilty if he had. said acknowledging stating Vonn and nothing particu- waiver in about emphasize that in “[w]e the absence of during plea colloquy; lar his comment inquiry into the waiver reading about discuss- rule, required district court as under the ing agree- it with counsel referred to the some other event could suffice to insure spent ment as a whole. The district court knowing defendant’s waiver was [a] pages plea colloquy explaining two of the voluntary.” Id. at 497-98. The court waiving, it rights Sura what gave examples “a -... defendant [who] of appellate was silent as to Sura’s waiver the district court that he has assure[s] rights.) (or, provision reviewed the waiver at a Peguero v. United minimum, plea agreement) bare while attorney attorney and that his closer Sura’s case because involved a explained it” a prosecutor “adequately failure to advise defendant about his addressing] summary the waiver” her appeal, involving was also case colloquy. Id. collateral attack on a conviction under 28 recently, at 498. More the Sixth Circuit again, 2255. U.S.C. Once the record just upheld appellate such a waiver of petitioner showed that the “had full knowl- rights prosecutor, in a case where the and edge right appeal,” of his and thus the the out judge, pointed not the waiver in prejudiced by Court found that he was not plea agreement during colloquy. 28, the omission. 526 U.S. at 119 S.Ct. Robinson, 602, United States v. 455 F.3d 961. Peguero Timmreck and reinforce the (6th Cir.2006). 610 important point that Sura must do more technically than show that the Rule was plain The Ninth found error in a Circuit violated. He must show magis case similar to Murdock “the where involuntary was and that he would not only trate asked each defendant it entered on the basis of the record general questions they had read whole, as a inquiry which is the this court six-page plea and understood their ‘five or followed in Loutos. agreement,’ specific and made no refer ence to the waiver of the

At least four other circuits have under- the sentence.” United States v. Arellano- taken a post plain analysis error -Vonn (9th Cir.2004); Gallegos, cases 797 where the district court failed to Alarid, also v. Fed. appel- mention the defendant’s waiver of see United States 123 (9th Cir.2006). rights late it through Appx. when went the Rule face; it doing, in so we now Circuit, question cise the Tenth the Sixth Like totality of the the need to take the stresses and some error plain found sometimes In into account. order circumstances Edgar, the States times not. United error, must dem- the defendant plain show mere silent held that “[a] Tenth Circuit “1) 2) error, that is onstrate that there satisfy defendant’s] [the does not record 3) affects substantial knowingly plain, that she did burden” conditions are all three rights[; if] rights. 348 voluntarily appellate her waive Cir.2003). met, may exercise its (10th Edgar F.3d error, a forfeited discretion to notice agreement’s plain to the court looked 4) seriously if the error affects waiver, signature section language of fairness, public reputation integrity, confirming that some agreement Murdock, 398 judicial proceedings.” knowingly, and the being waived rights are v. United (quoting at 496 Johnson colloquy F.3d testimony during defendant’s 520 U.S. and understood had read that he in turn sum- at L.Ed.2d 718 with his and had consulted Olano, marizes Id. at 872. United signing it. torney before 725, 732-35, 123 L.Ed.2d evidence, conclud the court Based on that also, (1993)); States v. e.g., see voluntary and was the waiver ed (7th Cir.2007); Simpson, 479 F.3d plain was no er and thus there knowing, Nitch, 933, 935 court nor the United ror, though neither the even Cir.2007). the collo during prosecutor mentioned Another Tenth Circuit quy. Id. at 873. earlier, no serious there is As we noted earlier, contrast, months decision three here. Rule that an error occurred dispute to the defen a court’s statement held that court to requires the district right to “given up your dant that he had collo- during inform the defendant you might oth your sentence which appellate rights con- the waiver of quy of inform adequate erwise have” was and to ensure tained “any from subse that he was barred him waiver. understands the that the defendant of his modification quent effort to seek That was did not do so. The district court States v. Chavez-Sa sentence.” in the error, “plain” and the error lais, of the Ola- part the second sense of (Confusingly, order, analysis. Finally, nonprecedential in a no/Johnson conclu- for the ultimate term is used if the waiver same Fifth concluded that Circuit plain say mean to do not arraignment, sion. We during mentioned is not every Rule 52 sense occurs in the held to have error “the waiver cannot be then ultimate con- given; not the any time advice is voluntary,” without knowing and been parts all four depends on v. Rod clusion analysis. United States additional analysis.) required Cir. riguez, Fed.Appx. Hoot,

2004); also see Sura’s is whether question The third Fed.Appx. by the er- rights were affected substantial the element on which ror. This is the B in Supreme Court focused that, in the Court held analysis in Benitez. There We find the Sixth Circuit’s were rights that substantial to show helpful resolving in order to be most Murdock affected, “must show rea- the defendant the well- applies Murdock appeal. Sura’s error, for the but probability sonable analysis pre- to the plain established error plea.” Nothing any way have entered the we have said in un not he would (al- step 124 S.Ct. 2333. One presume dercuts the fact that we that only step) along way the to though not the during statements made under oath the defendant’s demonstration that the er- colloquy are true. United States v. Stan plead guilty is ror affected his decision to (7th Cir.1998). diford, 148 F.3d look at whether the defendant under- Everything told the point plea agreement. stood his The of during exchange that can be taken as ll(b)(l)(N) signed piece is that a Rule problem true. The is that no one said criminal paper enough. is not Most defen- anything about the waiver of appellate legal experts, why dants are not which is rights. It is this utter silence that causes sys- in the puts Rule check If fur problem go here. we were to requirement in tem the form of ther and assume that the waiver was explain plain language district court knowing voluntary only based on the flow from consequences what will (at years facts that Sura the time 71 old (where g-uilty plea, including applicable) treatment) undergoing mental health appellate rights. the loss of If the safe- signed agreement, is literate and we guard required by missing, Rule meaningless render would adequate record must reveal substitute ll(b)(l)(N), it, inquiry but why also broader and the defendant show made a difference to him. omission prejudice Supreme into re Court ll(b)(l)(N), quires. equivalent or its case, When we look the record this plain purposes, error precisely exists nothing we find suffices as an ade- actually ensure the defendant quate substitute. Unlike defendant Loutos, rights knows what legal experience apart signing away. Sura has no he is previous from his convictions. Here, criminal the record does not reveal sub gives The record us no indication whether stitute for the safeguards of Rule 11. We in any of those earlier cases he waived his conclude that appel Sura’s waiver appellate rights, let alone whether he ever rights late knowing was not and volun pleaded guilty using plea agree- a written tary. Furthermore, light con ment. The district court did ask Sura responses fused the district attorney explained part whether his of questions, age, and his mental condi him, agreement even wheth- tion, likely we think it that he would have er he reviewed the with his strategic position differently assessed his attorney. prosecutor interject did not he losing realized that he was and direct the court’s attention to the challenge chance to the district court’s rights waiver. The court several listed decision, sentencing pri which was based confusingly waiving, Sura was marily on crimes unrelated to the crime of expla- omitted the conviction gave weight little to Sura’s why accepted plea agree- nation for individual circumstances. We note as well gives ment no assurance that he under- that the 30-month sentence Sura received deal, stood this aspect' of the and he now (three months less than the low end of the argues explanation that he did not. The used) advisory range is twice as fact, suggests, may mistakenly that he long high as the end of the 9- to 15-month thought accept that he had to range applied that would have if agreement willing because he was to admit eligible sporting- had found him for the guilt, to his in fact he when could have This, too, pleaded guilty agreement. without a plea supports use discount. a find- seriously affected the right appeal to af- his rights were substantial ing that Sura’s judicial proceedings. fairness of the the error. fected we analysis, plain error complete To may help this outcome note that We er particular consider whether At argument, in the end. oral we fairness, integrity, seriously affects the ror if was aware asked Sura’s counsel judicial pro of the reputation public or would have to prevailed, that if he find the Sixth Cir Again, we ceedings. the benefits and he would lose be set aside persuasive. analysis in Murdock cuit’s any parts right “[t]he concluded That court us that Sura him. Counsel assured benefit dimen not of constitutional appeal, while and nonetheless aware of this risk impor sion, of critical ... is nonetheless plea. aside his wanted set defendant.” 398 F.3d to a criminal tance agree with the It that “[w]e at 498. added Ill and conclude approach Ninth Circuit’s to ascer the ‘wholesale failure’ given aside, it is must be set Because understood the waiver that Murdock tain may go to trial on re- possible that Sura of the waiver ‘the enforcement provision, mand, may reach a new or he seriously af would in these circumstances way, Either is government. with the fairness, repu integrity public fect the question that Sura that the same possible ” (cit Id. plea proceedings.’ of our tation again arise under presenting will now 797). F.3d at Arellano-Gallegos, 387 ing Sentencing therefore Guidelines. We knowing and volun Although we enforce provi- on those offer some observations waivers, this court has observed tary plea As we noted at of the Guidelines. sions appeal waivers do that “there is risk outset, advisory computing meritorious nothing potentially cut off court did not range, the district Guideline appeal.” ... for direct Whit arguments benefit U.S.S.G. give Sura counsel, low, Responsible at 642. 2K2.1(b)(2), requires a reduction § arguments nothing but frivolous faced with if the defen- in the recommended sentence an Anders choose to file appeal, will solely firearm for “law- possessed the dant brief, California, 386 U.S. see Anders v. for collection.” purposes or sporting ful 18 L.Ed.2d Sura was thought court The district appeal that an to the court suggest adjustment because he to this not entitled However, dismissed. even should be that he was told earlier been if a cases, has held that this court those and because possess firearms permitted and the lawyer defendant tells harassing women. record of ball, then the defendant lawyer drops the here methodological problem There is Amendment of his Sixth deprived has been up future cleared that must be Castel of counsel. See right to assistance Neither reason sentencing proceeding. States, 717, 718-19 lanos v. United initial to the gave pertinent lawyer has failed When range. Guideline computation client’s appeal upon notice of her to file 2K2.1(b)(2) into never come would Section under routinely grant motions request, we had the defendant who play allow the 2255 and 28 U.S.C. ammunition; a firearm possess either Rodriquez process go forward. See thus, expressly fact that Sura was 327, 89 S.Ct. have these conclude, should not warned that he We unfortu- point. therefore, items is beside unwitting waiver that Sura’s 664 appropriate toward women is even fur- choose an sentence. also nate behavior See — States, the Guidelines that ad- Rita v. U.S. -, United

ther afield from any offenses. further L.Ed.2d 203 dress firearms proceedings, appeals the district court must make Courts of then review sentences reasonableness, using a focused factual determination about the an abuse-of-dis- Gall, (and his Beretta put use to which Sura cretion standard. 128 S.Ct. at 591. 3553(a) may § be at issue guns other once The factors outlined 18 U.S.C. gone). Application easily enough is Note are broad to allow the dis- 2K2.1(b)(2), § govern- 10 to on which the trict court to consider Sura’s individual characteristics, sentencing, properly ment relied at Sura’s does not after it has com- support approach puted advisory that the court took. range. Guideline See 3553(a)(1). time, § At read as especially Note follows: holdWe reiterated, Gall the judge begin sporting purposes ‘lawful collection’ properly with a computed range. Guideline surrounding as determined cir- 596-97; see also United States cumstances, provides for a reduction to Nelson, Cir.2007); 491 F.3d level of Relevant surround- an offense 6. Sriram, United States include the ing circumstances number (7th Cir.2007). firearms, type and amount ammunition, the location type and and judgment of the district court possession circumstances of and actual ReveRsed and the case is Remanded use, the nature of the defendant’s crimi- proceedings further consistent with this history (e.g., prior nal convictions for opinion. firearms), involving offenses the ex- possession tent to which was restricted EASTERBROOK, Judge, Chief by local law. dissenting. United Eighth As the Circuit held Sura waived his to appeal. He Ramirez-Rios, States v. appealed anyway, thinking that he could (8th Cir.2001), saying this amounts to enjoy plea the benefits of the determining “[i]n avoiding while its detriments. Informed 2K2.1(b)(2) in- applies, the focus of the argument at oral impossible— this is quiry is the ‘intended lawful use’ [of that the waiver long must be enforced as applied This court has a similar firearm].” stands, see United States v. as the approach applica- to the Guideline and the (7th Cir.1995)— Wenger, 58 F.3d 280 Lewitzke, See tion note. lawyer waffled ultimately told (7th Cir.1999) n. 7 us his client wants to withdraw the (noting previously that a defendant con- take higher the risk of a sentence victed of domestic violence could eligi- be prosecutor if the charges. should add reduction). ble for the This say is not to that the district court But once a accepted has been precluded taking imposed, may from factors like the sentence the plea not be probation warning officer’s and Sura’s un- withdrawn unless reversible error has oc- 11(d) related Compare convictions into account. As the curred. Fed.R.Crim.P. (withdrawal sentence) reaffirmed in Gall v. Supreme just Court before with Rule — (no 11(e) sentence). -, withdrawal after 586, 596-98, dis- op- never asked the district court for an anew, trict judges portunity plead have broad discretion to even after the explaining says a that exceed- tee Note judge pronounced sentence amendment designed that the advice is to make a expectation. ed Ms clear pleas record and ensure that are volun- judge’s argues that the district Counsel tary; but for a defendant who knows about ll(b)(l)(N) failure to follow Fed.R.Crim.P. court, appearing the waiver before a client to start over. nonetheless allows his reminder from the bench will not affect the ll(b)(l)(N) requires judge to in- Rule (as my plea. assuming colleagues Before orally form the defendant about “the terms do) heads-up jolt that a from a judge will any plea-agreement provision waiving defendants and alter their decisions to collaterally attack or (the standard under Domin- plead guilty judge The district failed to the sentence.” Benitez), guez ought we to know whether comply prose- with this rule. Neither the happens frequently, rarely, or never— called the omis- cutor nor defense counsel system in either the federal as a whole or attention, judge’s sion to the then or later. the Eastern District of Wisconsin. Vonn, v. United States U.S. Sura himself has not told us how a state- (2002), 1043, 152 L.Ed.2d 90 holds S.Ct. ll(b)(l)(N) complying ment with Rule plain-error governs standard would have affected his decision—not in a defendant who did not move to when court, brief, the district not in his guilty plea in the district withdraw his argument. and not at oral He has not argues that the court describing filed an affidavit what he would judge’s defective because of a district fail judge have done had the district followed 11(b)(1). comply ure to with Rule See ll(b)(l)(N), Rule nor has Sura asked for a 52(b); Ola Fed.R.Crim.P. hearing at which evidence could ad- be no, duced. (1993). that, also L.Ed.2d 508 holds review, conducting have plain-error ques when What Sura would done is appeals ought by consult the tion of fact. It not be whole resolved transcript appeals record and is not limited to the court of unbidden. Ours is an proceedings open system, court. 535 U.S. at adversarial after all. Contentions v. S.Ct. 1043. United States 74-76, one side are ad never made never Benitez, Dominguez justification 124 dressed the other. What cutting the prosecutor adds have we for error, that, mak plain judge process to demonstrate “a defen district out of this probability finding spontaneously? ing dant must show reasonable critical Just that, error, day Supreme he would not other Court noted but for the plea.” judge plays entered the also the vital role that a district See — Arenal, See Gall United sentencing. 637-39 Cir. 2007). U.S. -, 586, 169 L.Ed.2d 445 my colleagues Yet leave him with not shown but for the Sura has play finding no role to facts on an issue omission, “he would not qua Benitez makes a sine Indeed, plea.” have entered the non withdrawing plea. this, never asserted let alone “shown” it. judges’ Nor does he maintain that district If forced to reach a decision without ll(b)(l)(N), compliance findings repeat, argument for, with — has never even asserted that he would not became effective in December leads pleaded guilty a non-trivial fraction of defendants to balk have had the com- should be plead guilty. plied and refuse to Commit- — I hearing. The usual obtain a judge’s may dant that the district doubt inclined no, litigants and law- that both Here is answer any difference. is made omission representa- initial are bound their holding yers that court must the where Vonn’s guilty plea. a The in connection with record matters. tions made the whole consider Peterson, ll(b)(l)(N) v. States See, United e.g., could by Rule required advice v. States (7th Cir.2005); already if Sura made a difference F.3d 825 not have (7th Cir.1999); any Stewart, waived agreement F.3d 984 that his knew Messino, appeal. entitlement v. Elli- (7th Cir.1995); United States a defen- judge might affect A district (7th Cir.1987). son, the by explaining that choice dant’s regularly people litigation courts hold civil given a de- more than is worth they them contracts whether read to their If, example, the believes. fendant in civil not; why what is normal should rulings, a debatable after some came justice in miscarriage of be cases deemed appeals of that the court comment It won’t do to “be- reply criminal cases? of the sub- view take a different may well ad- requires oral cause Rule from dissuade a defendant ject might vice”; judge tells us that the district But Rule forego an promising not establish the an error but does made ll(b)(l)(N) unlike, say, 18 U.S.C. — plain- of miscarriage-of-justice component 8143(b)(1)(B) on the dis- not call —does an re- Omission of otiose error review. probability the judge to evaluate trict miscarriage justice. be minder cannot reversal; the requires all it is that knows of the the defendant ensure asserted that he Because Sura has never If the defen- contents. plea agreement’s contents, of the document’s was unaware knowledge, then the already has that dant that he read it as established we must take his deci- will not affect judge’s repetition told agreement, lawyer that his the whole sion. means, says him what it and what both contains written consequently had actual and that Sura immediately under sec- signature My colleagues’ knowledge of the waiver. stat- “Acknowledgement”) (captioned tion agreement written conclusion agreement and has read the ing that Sura nothing squared cannot be counts for “every explained part” lawyer has holding of Vonn that the court signed also orally. it to him Counsel record, hold- full or with the consider the immediately under agreement Benitez ing of both carefully “I reviewed representation: bears the the defendant burdens with the de- every agreement of this part But persuasion. production both literate; he has never is fendant.” Sura accept representa- not we whether or repre- these that when made contended lawyer affixed tions to Sura and his which (and lawyer) what he sentations about if surely cannot signatures, their we act done, court. Nor lying he was to the had opposite assurances were of those telling an us counsel filed affidavit most Sura could be entitled truth! The he assured the court that he lied when of his hearing at which state explained that he prosecutor likely response to ad- knowledge, and his to his client. ll(b)(l)(N), would be ex- vice under record, by- empty an plored. ad- Decision on lawyer or his either Sura If assertion, judge’s role as trier passing the district we would need such an vanced fact, insupportable. whether, recanting, a defen- to decide adequate must reveal an substitute for several times ask My colleagues it, why and the defendant must show “voluntary.” That’s red plea was a difference to him. that in-court notice omission made herring. Wenger holds clause is not agreements waiver about approach, my colleagues This attrib- to voluntariness. When essential Murdock, ute United States 11(b) 1999, that did step amended in (6th Cir.2005), respectable has a histo- meaning of the Constitu change ry; much Supreme Court said Timmreck, v. tion. See also United States States, thing McCarthy same in v. United 2085, 60 L.Ed.2d 634 394 L.Ed.2d U.S. 418 (1979) (a to deliver the ad judge’s failure 11(h) But Rule was added in 1983 by spoil 11 does not a required vice Rule abrogate McCarthy, to and decisions such voluntariness). 11 requires Rule plea’s Dominguez place as Vonn and Benitez on judges go beyond district to the constitu showing plain defendants the burden of minimum. tional error if no one alerted the district court to problem. A judge ought district Even if there were “voluntariness” that the defendant ensure knows about case, however, question in this (this important parts bargain of is knowledge agreement’s of the terms would in the sense which the Rule treats the plea. point That’s the vindicate insufficient), writing alone as but this does States, Peguero v. United imply every not that omission must have plea. affected the decision enter knowledge holds that a defendant’s actual ways than There are other oral advice subject judge of a on which the district judge from a to show defendant’s con- required by information supply failed to sent; point. this case illustrates the any Rule of Criminal Procedure forecloses And, on challenge based the Constitution. say signature on a writ- To time, has never repeat one last Sura dispositive is not is not to ten having knowledge denied actual say knowledge that the state of his waiver. in ignored. If Sura were not literate be English, lawyer or if his had filed an affi- my appear colleagues the end be- revealing despite appearances, davit that a failure to com- lieve waiver, did not know of the then an 11(b) ply with Rule should lead reversal evidentiary hearing could be held to ex- (such as, in all the rare case for exam- the truth lies. But to con- plore where lawyer). ple, a defendant who is a How clude, do, my colleagues because passage (op. else are we to understand this ll(b)(l)(N) designed place Rule is on 661-62): the record the fact that defendants are ll(b)(l)(N) point The of Rule is that a waivers, knowledge then of a aware signed piece paper enough. is not imparted by waiver other means must be legal criminal Most defendants are ignored, repeat is to error led experts, why which is Supreme Court to reverse the court of puts system a check in the in the form of appeals Benitez. requirement the district court explain plain language possibility what conse- the district calculating range will under the quences plea, flow from the erred (where help including applicable) Sentencing the loss of Guidelines does Sura. First, rights. If the occurred is un- safeguard re- error (and missing, proceedings remain so until quired the record clear will remand). Second, into inquiry SIMPLE, Plaintiff-Appellant, D. Eric what a waiver exactly merits argu up this line gave blocks. for concessions exchange ment COMPANY, WALGREEN properly make a We cannot prosecutor. Defendant-Appellee. post on acts that validity depend waiver’s See, e.g., Nu acceptance. plea’s date the No. 06-3990. States,

nez v. United Appeals, States Court of United Joiner, Cir.2007); Circuit. Seventh (7th Cir.1999); Jones 644-45 14, 2007. Argued Nov. 26, 2007. Decided Dec. attracted to are Many judges circuit entered after inade guilty pleas idea advice, from the or

quate counsel, should be set aside

from defense automatically. For a recent less

more or Arave,

example, see Hoffman Cir.2006) (bad given by advice negotiations is ineffec during plea

counsel assistance, defendant need not

tive if the advice been prove

allege

better, have entered different he would banc denied over a rehearing en

plea), judges, 481 F.3d 686 of seven

dissent

Cir.2007), granted under the name cert. — -, Hoffman, U.S.

Arave v. But

S.Ct. L.Ed.2d view, a different exem

Supreme Court

plified Lockhart, Hill v.

Benitez but also L.Ed.2d (“to

(1985) satisfy ‘prejudice’ require

ment, maintains that [who defendant [a] counsel led to assistance of

ineffective must show that there is a

guilty plea] that, but for coun probability

reasonable errors, pleaded not have he would

sel’s going and would insisted on

trial.”).

Case Details

Case Name: United States v. Sura

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 2, 2008

Citation: 511 F.3d 654

Docket Number: 05-1478

Court Abbreviation: 7th Cir.