United States v. Marcus Brown

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2273

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

M ARCUS A. B ROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:06-CR-324-15—Samuel Der-Yeghiayan, Judge.

A RGUED F EBRUARY 18, 2009—D ECIDED JULY 8, 2009

Before R OVNER, E VANS, and T INDER, Circuit Judges.

T INDER, Circuit Judge. After being charged with several

counts of drug-related offenses, Marcus Brown entered

into a plea agreement with the government. Under the

agreement, if Brown pleaded guilty to one conspiracy

count and fully cooperated, the government would move

to dismiss the remaining counts and reduce Brown’s

sentence. The district court accepted Brown’s guilty

plea and sentenced him in accordance with the terms of

2 No. 08-2273

the plea agreement. Nonetheless, Brown now argues that

the record is ambiguous as to whether the district court

accepted the agreement. Brown requests a remand to

determine if the court actually intended to reject the

agreement, in which case Brown is entitled to withdraw

his guilty plea. We conclude that the district court’s

acceptance of Brown’s plea agreement was unambiguous

and, accordingly, dismiss Brown’s appeal.

I. Background

Between 2003 and 2006, Brown participated in a drug

distribution operation based out of a Chicago housing

complex. The government obtained an indictment

against Brown and thirty-nine other individuals in-

volved in the operation, particularly charging Brown

with conspiracy to possess with intent to distribute more

than 5 kilograms of cocaine, 50 grams of crack cocaine, and

1 kilogram of heroin, in violation of 21 U.S.C. § 846, and

possession with intent to distribute 3.2 grams of crack

cocaine, in violation of 21 U.S.C. § 841(a)(1). The indict-

ment also contained a forfeiture allegation against all

property derived from or used to facilitate the drug

offenses. In three other cases that are not the subject of

this appeal, the government charged Brown with addi-

tional crack cocaine distribution offenses.

Brown and the government entered into a plea agree-

ment requiring Brown to plead guilty to the conspiracy

count, resulting in an anticipated sentencing range of 292-

365 months under the Sentencing Guidelines. In ex-

change, the government would move to dismiss the

No. 08-2273 3

possession count and forfeiture allegation in this case, as

well as all counts against Brown in the other three cases.

In addition, if Brown fully cooperated by providing

complete and truthful information in the other cases, the

government would move under U.S.S.G. § 5K1.1 for a

sentence at 66% of the minimum Guidelines range. If the

government determined that Brown had not fully cooper-

ated and declined to move for a § 5K1.1 reduction, Brown

could not withdraw his guilty plea. Finally, the plea

agreement required Brown to waive his right to appeal

his conviction or sentence.

The district court held a hearing to accept Brown’s guilty

plea to the conspiracy count. The court reviewed and

explained the terms of the plea agreement, which Brown

indicated that he understood. The court also told the

parties that it would order the Probation Department to

prepare a Presentence Investigation Report (“PSR”) to

assist the court in sentencing. The court would hear

any objections to the PSR’s sentencing calculations

before imposing a final sentence. At no point during

the hearing did the court explicitly accept or reject the

plea agreement.

Brown later decided that he wanted nothing to do with

the plea agreement. He filed a pro se motion to with-

draw his guilty plea on the ground that his appointed

counsel had misrepresented the terms of the plea agree-

ment and coerced him into pleading guilty. The court

denied the motion without prejudice and appointed

new counsel. Through his new counsel, Brown filed a

second motion to withdraw his plea, arguing that he

4 No. 08-2273

entered the plea before receiving a final copy of the

plea agreement describing the full offense conduct attrib-

uted to him. The district court rejected this argument,

noting that Brown had stated under oath at the plea

hearing that he had read and understood the final

plea agreement.

At the sentencing hearing, the district court adopted the

PSR’s sentencing calculations, which specified the same

292-365 month Guidelines range anticipated by the plea

agreement. The court rejected Brown’s objection to the

quantity of crack cocaine attributed to him in the

PSR, noting that Brown had admitted under oath to an

identical quantity specified in the plea agreement. After

the government advised the court that it was not

moving under § 5K1.1 for a below-Guidelines sentence

because Brown had not fully cooperated, the court ac-

knowledged that the plea agreement gave the govern-

ment that right. The court accordingly imposed a Guide-

lines sentence of 325 months on the conspiracy count.

The court also recognized that the plea agreement con-

tained a waiver of Brown’s right to appeal. Nonethe-

less, the court chose to state for the record “that the

defendant has the right to appeal,” leaving it to the ap-

pellate court to “determine whether the defendant has

waived his right or not waived his right [to appeal].” After

the sentencing hearing, the court, consistent with the

plea agreement, dismissed the remaining counts in the

case before it. The government also moved to dismiss

the pending indictments against Brown in the other

three cases.

No. 08-2273 5

Brown appeals on the ground that the district court

failed to comply with Fed. R. Crim. P. 11(c) because it

never accepted or rejected the plea agreement. More

precisely, Brown argues that the record is ambiguous as to

whether the court intended to accept the agreement and

requests a remand for clarification from the court.

II. Analysis

Fed. R. Crim. P. 11(c) governs the district court’s consid-

eration of plea agreements. Under Fed. R. Crim. P. 11(h),

Rule 11 violations are generally subject to harmless error

review, requiring the government to prove that the error

did not affect the defendant’s substantial rights. See

United States v. Vonn, 535 U.S. 55, 58 (2002). However,

since Brown never sought clarification regarding the

district court’s acceptance of the plea agreement, Brown

has the burden of showing plain error. See United States v.

Arenal, 500 F.3d 634, 637 (7th Cir. 2007) (citing Vonn, 535

U.S. at 59). To prevail on plain error review, the defendant

must show that “(1) an error has occurred, (2) it was

‘plain,’ (3) it affected a substantial right of the defendant,

and (4) it seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” United

States v. Nitch, 477 F.3d 933, 935 (7th Cir. 2007) (quotation

omitted).

Under Fed. R. Crim. P. 11(c)(3)(A), for plea agreements

such as Brown’s that require the government to move to

dismiss other charges, the district court “may accept

the agreement, reject it, or defer a decision until the

court has reviewed the presentence report.” If the court

6 No. 08-2273

accepts the agreement, it must inform the defendant that

“the agreed disposition will be included in the judg-

ment.” Fed. R. Crim. P. 11(c)(4). If the court rejects the

agreement, it must inform the parties in open court and

give the defendant an opportunity to withdraw the

guilty plea. Fed. R. Crim. P. 11(c)(5).

Brown argues that the district court plainly erred by

failing to either accept or reject the plea agreement, as

required by Rule 11(c). However, our review of the

record indicates that the court accepted the agreement.

At the plea hearing, the court stated that it would

examine the PSR’s Guidelines calculations before

imposing a final sentence, suggesting that the court

exercised its option under Rule 11 to defer acceptance

“until the court has reviewed the presentence report.” Fed.

R. Crim. P. 11(c)(3)(A). Thereafter, every aspect of the

court’s disposition of Brown’s case was consistent with

an acceptance of the plea agreement. At the sentencing

hearing, the court recalled that Brown had pleaded

guilty to the conspiracy count “pursuant to a written

plea agreement.” The court rejected Brown’s objection

to the quantity of crack cocaine attributed to him in the

PSR, noting that Brown had admitted under oath to an

identical quantity specified in the plea agreement. The

court would not have bound Brown to facts described in

a plea agreement that the court intended to reject.

After the government declined to move for a § 5K1.1

reduction, the court stated that it would proceed “under

the plea agreement” to sentence Brown in accordance

with the sentencing factors of 18 U.S.C. § 3553. Finally, the

No. 08-2273 7

court actually implemented the terms of the plea agree-

ment by dismissing the remaining counts in the case. The

government, also consistent with the plea agreement,

moved to dismiss the pending counts against Brown in

the other three cases. Because all of these acts were

fully consistent with the terms of the plea agreement, the

record unambiguously establishes that the district court

accepted the agreement.

To try to show that the district court’s acceptance of

the plea agreement was ambiguous, Brown notes that

the court never explicitly stated that it was accepting

or rejecting the agreement. Brown also highlights the

court’s statement at the sentencing hearing that “the

defendant has the right to appeal,” even though the

agreement required Brown to waive the right to ap-

peal. According to Brown, this statement expresses doubt

about the validity of the appellate waiver and suggests a

rejection of the plea agreement.

As to the appellate waiver, although the district court

may have expressed doubt about the waiver’s validity,

we disagree with Brown that this statement suggests

that the court was rejecting the plea agreement. We

routinely hear challenges to an appellate waiver on the

ground that the defendant did not agree to the waiver

knowingly and voluntarily. E.g., United States v. Linder,

530 F.3d 556, 561 (7th Cir. 2008); United States v. Blinn,

490 F.3d 586, 588 (7th Cir. 2007); United States v. Sura, 511

F.3d 654, 655-56 (7th Cir. 2007). Far from a rejection of

the plea agreement, the district court’s reference to

Brown’s right to appeal simply recognized that Brown

8 No. 08-2273

might challenge the voluntariness of the agreement that

the court was enforcing.

As to the court’s failure to explicitly state that it was

accepting the plea agreement, that omission does not

overcome the court’s other acts that uniformly point to

acceptance. We addressed a similar situation in United

States v. Ray, 828 F.2d 399, 415-16 (7th Cir. 1987), in

which the district court never stated that it was

accepting the plea agreement. We nonetheless found

an acceptance because the court sentenced the defendant

in accordance with the agreement’s terms. Id. at 416. In

particular, the district court in Ray, like the district court

in this case, accepted the government’s motion to

dismiss other pending counts as required by the plea

agreement. Id. In fact, the court’s intention in Ray to

accept the agreement was so apparent that we dis-

regarded the court’s statement that the agreement was

“not accepted.” Id. Given all of the surrounding circum-

stances indicating an acceptance, we concluded that

this statement must have been a “mistake or clerical

error.” Id.

As in Ray, the district court’s sentencing of Brown was

fully consistent with the terms of the plea agreement. The

court even chose a sentence within a Guidelines range

identical to the range anticipated by the plea agreement.

Cf. United States v. Smith, 500 F.3d 1206, 1213 & n.3 (10th

Cir. 2007) (concluding that the imposition of an upward

adjustment to the defendant’s Guidelines range did not

amount to a rejection of the plea agreement, since the

agreement did not address the specific adjustment at

No. 08-2273 9

issue). Under these circumstances, remanding the case

as Brown requests for clarification of the district court’s

intention would place “ritual” over “reality.” Ray, 828

F.2d at 404 (quotation omitted).

We also note that, even if the record were ambiguous

as to whether the district court accepted Brown’s plea

agreement, some authority exists for resolving that ambi-

guity in favor of acceptance. In United States v. Skidmore,

998 F.2d 372, 374 (6th Cir. 1993), the district court

accepted the defendants’ guilty pleas pursuant to a plea

agreement but never stated whether it was accepting

the agreement. In subsequent sentencing proceedings, the

district court refused to enforce a provision of the agree-

ment requiring the forfeiture of the defendants’ property

to the United States. The Sixth Circuit reversed and

enforced the forfeiture provision as if the district court

had accepted the agreement. Id. at 375. “[T]he district

court’s failure to indicate the status of the plea agree-

ment, within the requirements of [Rule 11(c)(3)], at the

time the court accepts the guilty pleas operates as an

acceptance of the agreement.” Id. (citation omitted); see

also Smith, 500 F.3d at 1213 n.3 (citing Skidmore to find a

“constructive acceptance” of the plea agreement).

We acknowledge that the better practice under Rule 11(c)

would be for district courts to explicitly indicate the

status of plea agreements. A defendant like Brown who

trades cooperation for government leniency finds

himself in an uncertain bargaining position. Armed with

significant resources and prosecutorial charging discre-

tion, the government may demand highly favorable terms

10 No. 08-2273

in its plea agreement. Perhaps the most favorable of

these is the unilateral authority to determine whether

the defendant performed under the agreement by fully

cooperating, an authority subject only to certain constitu-

tional constraints. See United States v. Wilson, 390 F.3d

1003, 1009-10 (7th Cir. 2004) (concluding that the gov-

ernment’s refusal to move for a substantial assistance

reduction lacked a rational basis); United States v. Lezine,

166 F.3d 895, 901-03 (7th Cir. 1999) (recognizing the defen-

dant’s due process right to a hearing on whether he

breached the plea agreement by failing to cooperate). As

if the uncertainty of placing this authority in one’s ad-

versary weren’t enough, the defendant must also defer

to the authority of the district court, which retains the

right to reject the plea agreement. Fed. R. Crim.

P. 11(c)(3), (5).

Here, the district court would have done well to mini-

mize this uncertainty in plea bargaining by sticking as

close as possible to the virtual “checklist” that Rule 11

provides. Consistent with the requirements of Rule 11(c),

the court might have explicitly stated at the plea

hearing that it was deferring acceptance pending the PSR

and, at the sentencing hearing, that it was accepting the

plea agreement. See Fed. R. Crim. P. 11(c)(3)(A). But since

the Rule does not require such explicit statements,1 we

1

Other sentencing provisions overlooked by the district court

do require explicit statements. Fed. R. Crim. P. 11(c)(4) provides

that, upon accepting a plea agreement, the district court

(continued...)

No. 08-2273 11

cannot say that the court plainly erred by failing to

specify that it was accepting Brown’s plea agreement.

Brown could have “dispelled any uncertainty” by simply

asking the court for clarification. Arenal, 500 F.3d at 639.

We also suggest that the government could have

sought assurances that the court was accepting the plea

agreement, thereby preventing Brown from trying to

withdraw his guilty plea on the theory that the court

rejected the agreement.

1

(...continued)

“must inform the defendant” that the agreed dismissal of other

charges “will be included in the judgment.” U.S.S.G. § 6B1.2(a)

further requires that the court state “on the record” that “the

remaining charges adequately reflect the seriousness of the

actual offense behavior and that accepting the agreement

will not undermine the statutory purposes of sentencing or

the sentencing guidelines.” Although Brown highlights the

district court’s failure to comply with these provisions, he

does not argue that these errors warrant reversal in and of

themselves. Rather, he cites these errors in support of his

argument that the district court’s acceptance of the plea agree-

ment was ambiguous, an argument that we reject based on the

analysis in this opinion. Brown would also have a difficult time

showing that the district court’s failure to make the statements

required by Rule 11(c)(4) and U.S.S.G. § 6B1.2(a) resulted

in prejudice, since the court actually implemented the terms of

the plea agreement. See Ray, 828 F.2d at 417 (finding a

Rule 11(c)(4) error harmless).

12 No. 08-2273

III. Conclusion

Because we find that the district court accepted Brown’s

plea agreement, we D ISMISS Brown’s appeal pursuant to

the appellate waiver contained in the agreement.

7-8-09