Petition for Writ of Certiorari — Davis v. United States

In The

Supreme Court of the United States

October Term, 1990

>

DUVALIER ANTONIO DAVIS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

*

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

>

STAYTON & BRENNAN

Puitie A. CHERNER

Attorney for Petitioner

1120 Lincoln Street, Suite 908

Denver, Colorado 80203

(303) 860-1818

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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“i A em”

fare aon

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QUESTIONS PRESENTED FOR REVIEW

1. Whether the district court’s refusal to permit the

entry of a conditional guilty plea pursuant to Fed. R.

Crim. P. 11(a)(2) constitutes an appealable order?

2. Whether the district court abused its discretion in

refusing to permit the entry of a conditional plea?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

TAGES OP ALPE TREC IO « osc caasWentiveuuavennees iii

COP URGUIOT UMRAITE sg 6c sch ban nasntn kamen a ceaeeeeens 1

JURISDICTIONAL STATEMENT ................... 1

APPLICABLE RULE PROVISION .................. 2

STATEMENT OF "THAD CAG soca conc bean dguneeeeye 2

LBGAL ARGGAIIREIGT oo osu ickisiner esd canaseubawees 4

et El 6} nerrrr r rs Cr ee ry 8

APPENEME A wk 5. onc iccdivcencsk eee ees App. 1

ili

TABLE OF AUTHORITIES

TABLE OF CASES

Blackledge v. Perry, 41771 U.S. 21 (1974)........

McCoy v. Wainwright, 804 F.2d 1196 (11th Cir.

Menna v. New York, 423 U.S. 61 (1975).........

Thermatron Products Inc. v. Hermandsdorfer, 423

TEED vas 66h enh 60565 d6 e88s ole 640.05 000

United States v. Benavidez, 793 F.2d 612 (5th Cir.),

cert. denied, 479 US. 666 (1906) ...............

United States v. Broussard, 645 F.2d 504 (5th Cir.

IE ee iy ol ip prelate ee ee PE eee

United States v. Burns, 684 F.2d 1066 (2d Cir. 1982)

United States v. Davis, 900 F2d 1525 (10th Cir.

DUEL AN a uxese ences eveedd oe aN euwace es

United States v. Fisher, 772 F.2d 371 (9th Cir. 1985)

United States v. Gaertner, 583 F.2d 308 (7th Cir.

1978), cert. denied, 440 U.S. 918 (1979).........

United States v. Huff, 873 F.2d 709 (3d Cir. 1989)

United States v. Montilla, 870 F.2d 549 (9th Cir.

SS ee err re rer rr reise rrr

1977)

United States v. O’Donnell, 539 F. 2d 1233 (9th

Cir.), cert. denied, 429 U.S. 960 (1976)..........

United States v. Osif, 789 F.2d 1404 (9th Cir. 1986)

Weatherford v. Bursey, 429 U.S. 545 (1977) ......

ee eee @€ OS O.8 6 ESA 6 OOOO ODE HOSO BERS BER SOA BED OEE 6

iv

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Conference Committee Notes to House Report

re errr rr Terry Pri rrr rr rrr rrr 6

, Rs OUD UR, Ae rarer were eer » Tie

No.

a

—

In The

Supreme Court of the United States

October Term, 1990

Lp

vw

DUVALIER ANTONIO DAVIS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

»

4

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

a

4

OPINION BELOW

The opinion of the Court of Appeals, United States v.

Davis, 89-1086 (10th Cir. April 16, 1990), is reported at 900

F.2d 1525 and is reprinted as Appendix A.

y%

. 4

JURISDICTIONAL STATEMENT

The judgment of the Court of Appeals for the Tenth

Circuit was entered on April 16, 1990. A timely petiiion

for rehearing and suggestion for rehearing en banc was

denied on May 23, 1990. This latter order was amended

on the court’s motion on May 30, 1990.

This petition for certiorari was filed within ninety

days of that date. Jurisdiction is invoked pursuant to 28

U.S.C. § 1254(1).

+

APPLICABLE RULE PROVISION

Fed. R. Crim. P. 11(a)(2) provides:

Conditional plea. With the approval of the court

and the consent of the government, a Defendant

may enter a conditional plea of guilty or nolo

contendere, reserving in writing the right, on

appeal from the judgment, to review of the

adverse determination of any specified pre-trial

motion. A Defendant who prevails on appeal

shall be allowed to withdraw the plea.

+

STATEMENT OF THE CASE

On November 18, 1988, Duvalier Davis was charged,

by indictment, with possession with intent to distribute

more than 50 grams of crack in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A)(iii), employing or using a

person under the age of 18 to aid and abet the possession

with intent to distribute more than 50 grams of crack in

violation of 21 U.S.C. § 845b(a)(i), and distribution of

cocaine in violation of 21 U.S.C. § 841(a)(i). Mr. Davis

pled not guilty to all charges on November 21, 1988.

Petitioner filed a motion to suppress evidence seized

from his home. On January 5, 1989, a hearing was held

and the district court denied the motion.

The government offered Mr. Davis a plea agreement

to plead guilty to Count I of the indictment in exchange

for dismissal of the remaining two counts. The govern-

ment consented to the entry of a conditional plea pur-

suant to Fed. R. Crim. P. 11(a)(2). On February 1, 1989,

Petitioner appeared in district court for entry of plea

pursuant to the agreement. Upon being apprised that the

plea was conditional and that the Petitioner wished to

appeal the adverse ruling on the motion to suppress, the

district court refused to accept the plea, stating:

I am not going to accept a plea then, do you

understand? I am not going to go ahead and

impose a penalty in this case after a presentence

report and the Defendant can shop and see what

he wants to do, and then take an appeal on the

pretrial orders.

The Defendant would have to withdraw

unequivocally all motions before the Court

accepts the plea. Considering the nature of what

was inherent in those motions, I will not enter-

tain a Rule 11 matter, so an interlocutory appeal

can be taken up while the Defendant is serving

his time.

If the Defendant wants to go to trial, if he wants

to enter a plea, the plea has to be an absolute

plea of guilty and withdrawing the other

motions.

Following a discussion with his attorney, Mr. Davis

withdrew the pre-trial motion to suppress and entered a

plea of guilty to Count I. The provision in the plea

agreement relating to the conditional nature of the plea

was deleted.

On March 8, 1989, the district court sentenced Peti-

tioner to 135 months imprisonment.

Notice of appeal was timely filed on March 31, 1989.

On April 16, 1990, the Court of Appeals issued its opin-

ion, which appears as the Appendix hereto. The court

ruled that Petitioner’s plea of guilty precluded appellate

review of the district court’s refusal to accept the condi-

tional plea. The court further ruled, presuming that

appellate review was proper, that trial courts are vested

with absolute discretion to accept or reject conditional

pleas and, therefore, no abuse of discretion could occur.

A.

»

ARGUMENT

I. THE DISTRICT COURT’S REFUSAL TO PERMIT

THE ENTRY OF A CONDITIONAL GUILTY PLEA

PURSUANT TO FED. R. CRIM. P. 11(a)(2) CONSTI-

TUTES AN APPEALABLE ORDER.

Relying on United States v. Huff, 873 F.2d 709 (3d Cir.

1989), United States v. Montilla, 870 F.2d 549 (9th Cir.

1989), and United States v. Nooner, 565 F.2d 633 (9th Cir.

1977), the Court of Appeals ruled that all nonjurisdic-

tional claims are waived by the entry of a guilty plea and

cannot be raised on appeal. The cases relied upon the

court are inapposite to the case at bar. Mr. Davis’ claim

regarding entry of a conditional plea may and should be

considered by this Court.

A guilty plea constitutes a waiver of most substan-

tive rights guaranteed by the fourth, fifth and sixth

amendments. United States v. Benavidez, 793 F.2d 612 (5th

Cir.), cert. denied, 479 U.S. 868 (1986); United States v.

O’ Donnell, 539 F.2d 1233 (9th Cir.), cert denied, 429 U.S. 960

(1976). The range of appealable issues which survive

entry of a plea are, therefore, necessarily limited, since

the plea

renders irrelevant those constitutional violations

not logically inconsistent with the valid estab-

lishment of factual guilt and which do not stand

in the way of conviction, if factual guilt is val-

idly established.

Menna v. New York, 423 US. 61, 62 (1975).

As a general rule, it is thus often stated that all

nonjurisdictional defects are waived by entry of the plea.

E.g. McCoy v. Wainwright, 804 F.2d 1196 (11th Cir. 1986);

United States v. Broussard, 645 F.2d 504 (5th Cir. 1981). The

rule, thusly stated, is overly broad, for this Court has

entertained appeals on non-jurisdictional matters. E.g.

Menna v. New York, supra (double jeopardy claim): Black-

ledge v. Perry, 417 U.S. 21 (1974) (prosecutorial vindictive-

ness).

In United States v. Gaertner, 583 F.2d 308 (7th Cir.

1978), cert. denied, 440 U.S. 918 (1979), the court examined

a variety of claims to determine whether they survived

the entry of a plea. The defendant claimed, inter alia, that

the plea bargain process utilized in his case violated his

due process rights. The Seventh Circuit held that that

issue was

obviously not precluded by his guilty plea

because only one who has pled guilty would

have standing to assert this claim.

Id. at 311.

Likewise, only a defendant who obtained the consent

of the government to enter a conditional plea and thereaf-

ter attempted to enter such a plea would be in a position

to urge a standard of review for the denial thereof. While

such defendant may have no constitutional right to a plea

bargain, Weatherford v. Bursey, 429 U.S. 545 (1977); United

States v. Osif, 789 F.2d 1404 (9th Cir. 1986), he has the right

to fair treatment and due process of law.

The grant of unfettered discretion should not be

immune from review. See Thermatron Products Inc. v. Her-

mansdorfer, 423 U.S. 336, (1976). Granting certiorari in this

case will provide district courts with much needed guid-

ance on their role in the conditional plea context, and

insure that criminal defendants are fairly treated in accor-

dance with their due process rights.

a

_

Il. THE DISTRICT COURT ABUSED ITS DISCRE-

TION IN REFUSING TO PERMIT THE ENTRY OF

A CONDITIONAL PLEA.

Conditional pleas were intended to remedy a disturb-

ing waste of judicial resources and a draconian choice

imposed upon criminal defendants. As the Conference

Committee Notes to House Report Number 99-414 make

clear, defendants who filed pre-trial motions, the outcome

of which was likely to be dispositive at trial, were faced

with a difficult decision upon denial of those motions.

They could enter a negotiated guilty plea and foreclose

appellate review, or force the case to trial to preserve

their appellate rights, possibly losing favorable sentenc-

ing concessions in the bargain. To conserve prosecutorial

and judicial resources wasted by these trials, and to a

lesser extent reduce the burden on defendants, Congress

adopted Rule 11(a)(2) in 1983. See United States v. Fisher,

772 F.2d 371, 374 (9th Cir. 1985).

The Committee Notes further recite the four argu-

ments which had been raised against conditional pleas,

to-wit encouragement of a flood of appellate litigation,

negation of finality in the criminal process, reduction of

the effectiveness of appellate review due to lack of a full

trial record, and forcing decision of constitutional ques-

tions that might otherwise have been avoided with appli-

cation of the harmless error doctrine. Adoption of the

rule necessarily implies rejection of these arguments, as

none “has been deemed to override the benefits of condi-

tional guilty pleas when the issues preserved for appeal

are adequately restricted.” United States v. Burns, 684 F.2d

1066, 1072 (2d Cir. 1982) (pre-rule decision).

While the trial court’s statement in the instant case is

not a model of clarity, it appears that the court rejected

the plea on the grounds of lack of finality and encourage-

ment of appeals. Indeed, the dissent herein could

read the court’s statement [in] no other way

than to say it rejects the underlying premise of

Rule 11(a)(2) and therefore will exercise no dis-

cretion whatsoever.

United States v. Davis, 900 F.2d 1525, 1531 (10th Cir.

1990) (McKay, J., dissenting). District court judges must

be told

that however broad their discretion may be,

they do not have authority to refuse to exercise

the discretion that Congress deliberately gave

8

them simply because they don’t like the policy

that underlies Congress’ choice.

Id.

+

CONCLUSION

For these reasons, the petition for certiorari should be

granted.

Respectfully submitted,

Puiu A. CHERNER

STAYTON & BRENNAN

Attorney for Petitioner

1120 Lincoln Street, Suite 908

Denver, Colorado 80203

(303) 860-1818

App. 1

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, ‘ No. 89-1086

= ) FILED

DUVALIER ANTONIO DAVIS, APR 16 1990

)

Defe..dant-Appelant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO

(NO. 88-CR-322)

William D. Welch, Assistant United States Attorney (Mi-

chael J. Norton, United States Attorney and Kathryn

Meyer, Assistant United States Attorney, with him on the

brief), Denver, Colorado, for Plaintiff-Appellee.

Philip A. Cherner of Stayton & Brennan, Denver, Colo-

rado, for Defendant-Appellant.

Before McKay, ANDERSON, and BRORBY, Circuit

Judges.

BRORBY, Circuit Judge.

App. 2

Duvalier Antonio Davis appeals the judgment and

sentence entered against him following his plea of guilty

to possession with intent to distribute a schedule II con-

trolled substance; crack cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A). Vol. I tab 28. On appeal, Davis

argues: (1) the trial court abused its discretion in refusing

to permit a conditional plea; (2) the trial court erred in

denying the defendant’s motion to suppress evidence;

and (3) the trial court abused its discretion by refusing to

depart from the sentencing guidelines. Appellant’s Brief

at i. We affirm.

BACKGROUND

On November 18, 1988 a federal grand jury in

Denver, Colorado indicted Davis on three counts: (I) pos-

session with intent to distribute more than 50 grams of

crack (a mixture or substance containing cocaine base) in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii);

(II) employing or using a person under the age of 18

years of age to aid and abet the possession with intent to

distribute more than 50 grams of crack in violation of 21

U.S.C. 845b(a)(1) and 845b(b); and (III) distribution of

cocaine in violation of 21 U.S.C. § 841(a){1). Vol. I. tab 1.

Davis initially pleaded not guilty to the charges, Vol. I tab

2 and filed three motions to suppress evidence. Vol. I tabs

5, 8, and 9. After an evidentiary hearing, the trial court

denied those motions. Vol. II at 59.

Thereafter, Davis negotiated a plea agreement with

the government. Under the agreement, Davis agreed to

enter a conditional guilty plea to Count I of the indict-

ment, reserving his right to appeal the court’s pretrial

App. 3

orders pursuant to Fed. R. Crim. P. 11(a)(2). In exchange

for the guilty plea, the government agreed to dismiss

Counts II and III of the indictment. Vol. I tab, 14. The trial

court, however, refused to accept Davis’ conditional

guilty plea. Vol. IV at 6. On February 1, 1989, Davis

pleaded guilty to Count | of the indictment without any

qualifications, and the government dismissed the remain-

ing two counts of the indictment. Vol. IV at 8, 13. The

court subsequently imposed a sentence of 135 months of

incarceration, a five year supervised release, and a fifty-

dollar assessment. Vol. I, tab 28, Vol. VI at 38. The sen-

tence was within the applicable guideline range.

EFFECT OF THE GUILTY PLEA

Davis argues the trial court erred in denying two of

the three motions to suppress evidence. Appellant’s Brie!

at 10. In response, the government argues that because

Davis pleaded guilty, the trial court’s rulings on the sup-

pression motions are nonreviewable. Appellee’s Brief at

7. Further, the government argues that Davis’ guilty plea

precludes appellate review of the trial court’s refusal to

accept the conditional plea. We agree with the govern-

ment.

By entering a voluntary! plea of guilty, Davis waived

all nonjurisdictional defenses. United States v. Nooner, 565

1 Davis does not contest the fact that his guilty plea was

voluntary. The record indicates the trial court painstakingly

assured the propriety of the guilty plea. After the court exer-

cised its prerogative and refused to accept the conditional plea,

(Continued on following page)

App. 4

F.2d 633, 634 (10th Cir. 1977). The plea of guilty in Nooner

foreclosed from review the trial court’s earlier order

(Continued from previous page)

the court recessed to enable Davis to confer privately with

counsel. Vol. IV at 7. When court reconvened, Davis responded

to the court that he would plead guilty:

THE COURT: Mr. Davis, in regard to your desire to

appeal the Court’s pretrial orders, what are your

wishes in that regard now, please?

MR. DAVIS: I will plead guilty.

THE COURT: Without any qualifications; is that

correct?

MR. DAVIS: That’s correct, your Honor.

Vol. IV at 7-8. Defense counsel then withdrew the motions to

suppress:

THE COURT: ... Mr. Elliott, on behalf of Mr. Davis, I

take it you are withdrawing with prejudice those

motions that have been filed previously, and the

Court has ruled on; is that correct, please?

MR. ELLIOTT: That is correct, your Honor. Like-

wise we would ask the Court to delete paragraph D

[regarding the conditional plea] of the plea agree-

ment, which is what the government consented to.

THE COURT: Is this agreeable to you, Mr. Davis?

MR. DAVIS: Yes, your Honor.

THE COURT: The record will so reflect.

Vol. IV at 8. The court advised Davis extensively on his consti-

tutional rights and assured the propriety of the guilty plea

before accepting the same. Id. at 8-22.

(Continued on following page)

App. 5

denying the motion to suppress. Id. Nooner applied

Supreme Court precedent as follows:

In Tollett v. Henderson, 411 U.S. 258, 267, 93

S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), the

Supreme Court reaffirming the trilogy of cases

Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463,

25 L.Ed.2d 747 (1970); McMann v. Richardson, 397

U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970);

and Parker v. North Carolina, 397 U.S. 790, 90

S.Ct. 1458, 25 L.Ed.2d 785 (1970), declared as

follows:

[A] guilty plea represents a break in the

chain of events which has preceded it in the

criminal process. When a criminal defen-

dant has solemnly admitted in open court

that he is in fact guilty of the offense with

which he is charged, he may not thereafter

raise independent claims relating to the

deprivation of constitutional rights that

occurred prior to the entry of the guilty

plea. He may only attack the voluntary and

(Continued from previous page)

Further, the Court reiterated at the plea hearing that one of

the consequences of pleading guilty was the preclusion of

appellate review of the suppression rulings. In discussing the

Statement of the Defendant in Advance of Plea of Guilty, the

court reiterated that by pleading guilty, Davis waived his right

to appeal the suppression rulings:

THE COURT: .. . there is some other language there

that as a result of the conditional plea pursuant to

Rule 11(a)(2), I may appeal the denial [of the] motion

to suppress. You are withdrawing that opportunity

to appeal that matter; is that correct, please?

MR. DAVIS: That is correct.

Id. at 21.

App. 6

intelligent character of the guilty plea by

showing that the advice he received from

counsel was not within the standards set

forth in McMann [supra].

Id.; See also, United States v. Huff, 873 F.2d 709, 712 (3rd

Cir. 1989) (challenge to voluntariness of statements

barred after entry of guilty plea); United States v. Montilla,

870 F.2d 549, 552 (9th Cir. 1989) (“as a general rule, a

guilty plea erases claims of constitutional violation aris-

ing before the plea”). Because the effect of the guilty plea

was to waive all nonjurisdictional defenses, we need not

and do not review the trial court’s denial of Davis’ sup-

pression motions.

Further, Davis’ entry of an unconditional and volun-

tary guilty plea forecloses review of the court’s refusal of

the conditional plea. The law affords Davis neither a right

to enter a conditional plea nor a right to enter a plea

bargain. See Mabry v. Johnson, 467 U.S. 504, 510 (1984)

(defendant’s “inability to enforce the prosecutor’s offer is

without constitutional significance”); Montilla, 870 F.2d at

553 (“Montilla had no constitutional right to a plea bar-

gain”) (citing United States v. Osif, 789 F.2d 1404, 1405 (9th

Cir. 1986)); Martinez v. Romero, 626 F.2d 807, 809 (10th

Cir.), cert. denied, 449 U.S. 1019 (1980) (petitioner has “no

constitutional right to a plea bargain on his own terms”).

We agree with the observation of the Ninth Circuit in

Montilla: “A forced choice between asserting a constitu-

tional right at trial and accepting the government’s offer,

while undoubtedly difficult, is not unconstitutional.” Id.

at 553 (citation omitted). While some may find this forced

choice harsh, we find it to be lawful and hold that by

App. 7

pleading guilty to Count I of the indictment, Davis fore-

closed appellate review of the suppression rulings and

also the trial court’s refusal to accept the conditional plea.

CONDITIONAL PLEA

Presuming he is entitled to appellate review of the

issue, Davis argues the trial court abused its discretion by

refusing to permit him to enter a conditional plea. Appel-

lant’s Brief at 6.2 We do not agree. Fed. R. Crim. P.

11(a)(2) provides:

Conditional Pleas. With the approval of the

court and the consent of the government, a

defendant may enter a conditional plea of guilty

or nolo contendere, reserving in writing the

right, on appeal from the judgment, to review of

the adverse determination of any specified pre-

trial motion. A defendant who prevails on

appeal shall be allowed to withdraw the plea.

Rule 11 “creates no enforceable ‘right’ to enter a condi-

tional plea.” “United States v. Daniel, 866 F.2d 749, 751 (5th

Cir. 1989) (quoting United States v. Fisher, 772 F.2d 371, 374

(7th Cir. 1985)). Rather, the rule vests the trial court with

discretion to permit entry of the conditional plea. Neither

legislative history? nor case law indicates that a criminal

defendant is entitled to enter a conditional plea.

2 Although by pleading guilty, Davis waived appellate

review of this issue, we choose to address the issue of refusal

of the conditional plea to further clarify the absolute discretion

of the trial judge in accepting or rejecting a tendered condi-

tional plea.

3 “The legislative history indicates that the rule was

intended primarily to aid courts and prosecutors, rather than

defendants.” Daniel, 866 F.2d at 751 n.1.

App. 8

Davis contends that by adopting Fed. R. Crim. P.

11(a)(2), Congress rejected certain challenges‘ to the rule,

and that “it would not be proper for a trial court to reject

a conditional plea for any of those reasons alone.” Appel-

lant’s Brief at 8. Davis further argues that the court’s

rationale for rejecting the conditional plea “amounted to

a blanket prohibition on all conditional pleas” and that

“failure to exercise discretion is itself an abuse of discre-

tion.” Appellant’s Brief at 10.

Davis’ argument is flawed in at least two respects.

First, the fact that Congress rejected arguments disap-

proving of conditional pleas does not mean that Congress

implicitly required a court to make findings before refus-

ing or accepting a conditional plea or that Congress

thereby restricted the bases by which a district court can

deny a conditional plea. Davis is correct in observing that

Rule 11(a)(2) does not “state what factors are to be con-

sidered by the court in guiding its discretion.” Appel-

lant’s Brief at 8. The trial court has absolute discretion

with regard to accepting or rejecting the conditional plea.

The court can refuse to accept a conditional plea for any

reason or for no reason.5

* The challenges mentioned by Davis are as follows: (1)

the procedure would encourage a flood of litigation; (2) it

tends to negate finality in the criminal process; (3) it impinges

on the effectiveness of appellate review for lack of a full trial

record, and; (4) it compels decision of constitutional questions

that otherwise might be avoided pursuant to the harmless

error doctrine. Appellant's Brief at 7-8.

5 This same observation was made in United States v. Yasak,

884 F.2d 996, 999 (7th Cir. 1989), regarding the assent of the

(Continued on following page)

App. 9

Second, the trial court’s refusal of the conditional

plea in this case was not a “blanket prohibition” of the

plea. Even though the law does not require an explana-

tion, the trial court stated his reasons for refusing the plea

in this case:

... 1am not going to go ahead and impose a

penalty in this case after a presentence report

and the Defendant can shop and see what he

wants to do, and then take an appeal on the

pretrial orders.

The Defendant would have to withdraw

unequivocally all motions before the Court

accepts the plea. Considering the nature of what

was inherent in those motions, I will not enter-

tain a Rule 11 matter, so an interlocutory appeal

can be taken up while the Defendant is serving

his time. .. .

Vol. IV at 6. Consequently, Davis’ argument is not based

entirely on fact. Even if the trial court’s ruling amounted

to a blanket prohibition of all conditional pleas, we are

not persuaded that such a judicial outlook would consti-

tute error in any given case.

Rule 11(a)(2) provides the court a procedural option to

accept a conditional plea. We know of no requirement

placed on the court to make findings when accepting or

refusing 2 conditional plea.

(Continued from previous page)

government. The government “can refuse to assent to a condi-

tional plea for any reason or no reason; Rule 11(a)(2) creates no

enforceable right to enter a conditional plea.” Id. (citing Fisher,

772 F.2d at 374).

App. 10

SENTENCING GUIDELINES

Finally, Davis argues the court abused its discretion

in refusing to depart downward from the guidelines. He

contends that because he made an offer of cooperation to

the government and because of the disparity in sentenc-

ing between cocaine-based substances and powder

cocaine, the trial court abused its discretion in refusing to

depart downward. Appellant’s Brief at 16. “This court

reviews sentences imposed under the Sentencing Guide-

lines according to the statutory standard provided by the

Sentencing Reform Act of 1984 and codified at 18 U.S.C.

§ 3742.” United States v. Smith, 888 F.2d 720, 723 (10th Cir.

1989). Section 3742(e) provides, in relevant part:

(e) Consideration - Upon review of the record,

the court of appeals shall determine whether the

sentence —

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect

application of the sentencing guidelines;

(3) is outside the applicable guideline

range, and is unreasonable, having regard

for -

(A) the factors to be considered in impos-

ing a sentence, as set forth in chapter 227 of

this title; and

(B) the reasons for the imposition of the

particular sentence, as stated by the district

court pursuant to the provisions of section

3553(c); or

(4) was imposed for an offense for which

there is no applicable sentencing guideline

and is plainly unreasonable.

App. 11

Because of the language of the statute and the legislative

history, we conclude we lack jurisdiction to consider the

issue of whether the court abused its discretion in refus-

ing to depart downward from the guidelines.

Davis stipulated that he possessed, with intent to

distribute, 166.68 grams of crack. Vol. I, tab 14. Section

2D1.1 of the sentencing guidelines places that quantity of

crack at a base offense level of 34. The court gave Davis a

two-point downward adjustment for acceptance of

responsibility pursuant to § 3E1.1. Vol. I, tab 28. Thus,

Davis’ total offense level was computed at Level 32.

Although the government urged the court to assign a

criminal history at Category III (with its attendant guide-

lines range of 151-188 months), the court found Category

Il appropriate. Vol. VI at 28-33. Accordingly, the court

determined the sentence guideline range was 135 months

to 168 months, Vol. VI at 30, and the court imposed a

sentence of 135 months.

Rather than argue that the court miscalculated the

base offense level or the criminal history category, Davis

argues the court erred in failing to view the case from his

perspective, Appellant's Brief at 15-18, and in not invok-

ing the catchall provision of § 5K2.0 which permits the

court to consider unenumerated factors in mitigation of

sentence. Appellant’s Brief at 17. Davis presents no argu-

ment and the record bears no indication whatsoever that

the court’s refusal to depart from the guidelines was a

violation of law. Rather, he argues the court abused its

discretion in refusing to depart downward.

Several other circuits have determined they have no

jurisdiction to consider whether a trial court abused its

App. 12

discretion in refusing to depart from the guidelines. In

United States v. Franz, 886 F.2d 973, 980 (7th Cir. 1989), for

example, the Seventh Circuit held that 18 U.S.C. § 3742

does not confer appellate jurisdiction over refusals to

depart. Id. at 980. In Franz, the court wrote:

A review of the structure of section 3742 as

a whole leads us to conclude that Congress did

not intend a district court’s decision refusing to

depart from the guidelines to be appealable. As

we have already noted, departures are an inte-

gral part of the guideline application process.

Thus, a district court’s decision to depart from

the guidelines, no less than a court’s decision

refusing to depart, could be characterized as “an

incorrect application of the sentencing guide-

lines” appealable under 18 U.S.C. 3742(a)(2).

However, Congress thought it necessary to

include specifically section 3742(a)(3), providing

for appellate review of district court decisions to

depart upward [emphasis added] from the

guidelines, within the statute governing appel-

late jurisdiction. Therefore, if we were to inter-

pret section 3742(a)(2) to allow appeals for

departure-related decisions as incorrect applica-

tions of the guidelines, we would render section

3742(a)(3) redundant. Because Congress could

not have intended such a specific provision to

be mere surplusage, we conclude that Congress

did not intend for departure-related decisions,

including refusals to depart, to be appealable

under section 3742(a)(2).

Id. at 978.

The Franz court also explained that the legislative

history supported the position that an appellate court had

no jurisdiction to review a district court’s decision not to

depart from the applicable sentencing guidelines range:

App. 13

The Senate Report accompanying the bill that

ultimately was adopted as the Sentencing

Reform Act makes it clear that not all sentences

are to be appealable under section 3742. “This

section establishes a limited practice of appellate

review of sentences in the Federal criminal jus-

tice system.” S.Rep. No. 225, 98th Cong., 2nd

Sess. 149 (1983), reprinted in 1984 U.S. Code

Cong. & Admin. News 3182, 3332... .

Id. at 978-979.

Subsequently, the Third Circuit also declined to con-

sider the argument that the district court erred by refus-

ing to impose a sentence below the minimum guideline

range when a defendant had cooperated with the govern-

ment and had been an important witness against two

other individuals. It held:

[W]e do not have jurisdiction to hear the appeal

on this issue pursuant to 18 U.S.C.A.

§ 3742(a)(2). . . . Since it is a matter left for the

district court’s discretion to refuse to depart

from the Guidelines, and since [the appellant]

does not allege that the sentence is an improper

application of the Guidelines, nor that it is a

violation of the law, we must affirm it.

United States v. Wickstrom, 893 F.2d 30, 33 (3d Cir. 1989)

(citations omitted). See also United States v. Guerrero, 894

F.2d 261 (7th Cir. 1990) (applying Franz, a sentence within

the guideline range and not imposed in violation of law,

or as a result of an incorrect application of the guidelines

should be affirmed); United States v. Tucker, 892 F.2d 8, 11

(1st Cir. 1989) (“a district court’s decision not to depart

from the Guidelines is not appealable”); United States v.

Whyte, 892 F.2d 1170, 1175 n.14 (3d Cir. 1989) (discretion-

ary refusal to depart is nonreviewable, but refusal to

App. 14

depart based upon misperception of statute is appeal-

able); United States v. Colon, 884 F.2d 1550, 1554 (2d Cir.)

(decision not to depart from the guidelines is “inherently

discretionary” and “Congress did not intend to provide

appellate review of sentences that are within the Guide-

lines correctly applied and are not illegal under [specific

subsections]”), cert. denied, 110 S.Ct. 553 (1989). We are

persuaded that the other circuits have analyzed the ques-

tion properly, and we know of no contrary authority.

We therefore join the Third and Seventh Circuits and

hold that we do not have jurisdiction to hear an appeal

over the trial court’s discretionary refusal to depart

downward from the guidelines. In short, when a sentence

is within the guideline range and is not imposed in

violation of law,® or as a result of an incorrect application

of the guidelines,” then the district court’s refusal to

exercise its discretion to depart downward from the

guideline range is not appealable.

Davis also argues the court abused its discretion in

refusing to mitigate the sentence based upon the “gross

¢ The question is not presented, and we do not decide,

whether a discretionary refusal to depart downward can ever

violate 18 U.S.C. § 3553 and therefore be reviewed under 18

U.S.C. § 3742(e)(1). See United States v. Denardi, 892 F.2d 260,

275-85 (3d Cir. 1989) (Becker, J., concurring in part and dissent-

ing in part).

7 Of course, if a district court does not exercise its discre-

tion to depart downward because it feels legally prohibited

from doing so, i.e., it incorrectly concludes that it has no

discretion to depart downward, the sentence is reviewable

under 18 U.S.C. § 3742(e)(2). United States v. Lowden, No.

89-2052, slip op. at 7-8 (10th Cir. March 29, 1990).

disparity in sentencing under the guidelines between

cocaine base and powder cocaine.” Appellant’s Brief at

17. Although we have concluded we have no jurisdiction

to review this issue, we note that other circuits have

considered constitutional arguments arising from the dis-

parate treatment of the two substances and have upheld

the legality of the guidelines. See United States v. Buckner,

894 F.2d 975 (8th Cir. 1990) (the “100 to 1 ratio” of cocaine

to cocaine base in the guidelines does not violate the due

process clause of the Fifth Amendment or the cruel and

unusual punishment clause of the Eighth Amendment);

United States v. Cyrus, 890 F.2d 1245, 1248 (D.C. Cir. 1989)

(the substantially higher term for cocaine base possession

than for possession of untreated cocaine did not violate

the Eighth Amendment against cruel and unusual pun-

ishment, the distinction between cocaine and cocaine

base was not arbitrary and irrational in violation of equal

protection, and the distinction was not unconstitutionally

vague).

Davis does not argue and the record does not indi-

cate that the court’s refusal to depart from the guidelines

was a violation of law. Thus, we hold we do not have

jurisdiction to review, as a matter of abuse of discretion,

the trial court’s refusal to depart downward from the

guidelines.

AFFIRMED.

No. 89-1086 - UNITED STATES OF AMERICA v.

DUVALIER ANTONIO DAVIS McKAY, Circuit Judge,

concurring in part and dissenting in part:

By this decision, the court converts a rule into a

license. In dealing with the language of Rule 11(a)(2), the

App. 16

court reads into the phrase “with the approval of the

court” a license for trial courts to withhold their approval

for any reason or no reason without the possibility of

review under any circumstances. In our legal system, the

instances are extremely rare in which grants of authority

are absolutely insulated from review. We should not read

the language of Rule 11(a)(2) as one of those rare exam-

ples.

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

(1976), provides a striking example of just how unusual

the cases are in which judicial action escapes all review.

Before the Thermtron decision, 28 U.S.C. § 1447(d) looked

like as clear a prohibition of appellate review as one

could write. With respect to orders remanding removed

cases to state courts, section 1447(d) states that: “An

order remanding a case to the State court from which it

was removed is not reviewable on appeal or other-

wise... .” 28 U.S.C. § 1447(d) (1982). In Thermtron, a

district court remanded a case to the state court from

which it was removed for the reason that the district

court’s docket was too crowded for the district court to

hear the case on a timely basis. See Thermtron, 423 U.S. at

335. The Supreme Court held, however, that although

section 1447(d) normally protected remand orders from

review, a crowded docket was not a permissible reason

for remanding a case to state court. See id. at 351.

Thermtron proves, therefore, that even where Con-

gress announces an express policy against review, there

may be reasons given by a trial court for a decision that

may subject the decision to appellate review. In my judg-

ment, nonreviewability must be read into the language of

Rule 11(a)(2) in order to reach our present result, unlike

App. 17

Thermtron where the language of section 1447(d) was

express. A fortiori, some limited scrutiny of clearly unlaw-

ful reasons remains under Rule 11(a)(2). In this case, I am

persuaded that the trial court gave the one reason that it

cannot give as a basis for its decision.

As the majority has noted, the trial court gave an

explanation of why it refused to give its consent to a Rule

11(a)(2) plea. I can read the court’s statement no other

way than to say it rejects the underlying premise of Rule

11(a)(2) and therefore will exercise no discretion what-

ever. As the majority noted, the court said in support of

its decision:

I am not going to go ahead and impose a

penalty in this case after a presentence report

and the Defendant can shop and see what he

wants to do, and then take an appeal on the

pretrial orders.

The Defendant would have to withdraw

unequivocally all motions before the Court

accepts the plea. Considering the nature of what

was inherent in those motions, I will not enter-

tain a Rule 11 matter, so an interlocutory appeal

can be taken up while the Defendant is serving

his time... .

Record, vol. 4, at 6. It may be that if the court had given

no reason, but held subjectively this attitude, its decision

would have escaped review. It may also be true, as has

often been said, that a willful trial judge can find a way to

disguise successfully even inappropriate decisions. One

should not ascribe such motivation to trial judges, and

this judge has not done so. The trial court having been

forthright, I believe it is our duty to review the matter

and inform the trial judges that however broad their

App. 18

discretion may be, they do not have authority to refuse to

exercise the discretion that Congress deliberately has

given them simply because they don’t like the policy that

underlies Congress’s choice.

Aside from this issue, I agree with what the majority

has said about the other issues in the case.* My difference

is that I would remand to the trial court with direction to

exercise Rule 11(a)(2) discretion.

* As I understand the court’s opinion, even in the broad

discretion granted for departure from the guidelines, it cor-

rectly has reserved the power of the circuit to review that

exceptionally broad discretion if not correctly applied or if the

application is illegal. United States v. Colon, 884 F.2d 1550,

1554 (2d Cir.), cert. denied, 110 S. Ct. 553 (1989).