United States v. Antonio White , 628 F. App'x 848 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4678
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO VLAIR WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00308-D-1)
Argued: September 17, 2015 Decided: October 19, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Harris wrote
the opinion, in which Judge Wilkinson and Judge Agee joined.
ARGUED: Jennifer C. Leisten, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Eric D.
Goulian, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PAMELA HARRIS, Circuit Judge:
After Antonio White (“White”) was indicted for his role in
a string of residential burglaries, he struck a deal with the
Government, pleading guilty to a conspiracy offense in exchange
for the Government’s agreement to drop other charges. But as a
result of a complicated statutory scheme and one critical error
in drafting the plea agreement, White and the Government now
disagree about the most fundamental aspect of their bargain: To
what conspiracy offense, exactly, did White plead guilty? In
the absence of a meeting of the minds over this essential term,
there can be no valid plea agreement. Accordingly, we vacate
White’s judgment of conviction and remand for further
proceedings.
I.
In December 2008, the Criminal Investigations Division of
the United States Army began to investigate a series of
residential burglaries at the Fort Bragg Military Reservation
(“Fort Bragg”) in North Carolina. The investigation revealed
that White, along with two other people, was involved in
stealing private and government property from homes on Fort
Bragg. When interviewed by investigators, White acknowledged a
role in the burglaries. In September 2012, a grand jury
returned an indictment against White.
3
Residential burglary generally is not a federal crime.
But when it is committed on a federal enclave, like Fort Bragg,
it may give rise to federal charges under the Assimilative
Crimes Act (“ACA”), 18 U.S.C. § 13. The ACA enables federal
authorities to prosecute conduct that occurs on federal enclaves
and would be punishable if committed elsewhere within the local
jurisdiction, “assimilating” state law to that end. See Lewis
v. United States, 523 U.S. 155, 160 (1998). And indeed, one of
the crimes with which White was charged — in the second count of
his indictment — was a violation of 18 U.S.C. § 13, assimilating
North Carolina’s residential breaking and entering statute. See
North Carolina General Statute (N.C. Gen. Stat.) § 14-54.
The first count of the indictment charged White with
conspiracy to commit that federal offense. And here is where
things begin to get complicated. Because a federal conspiracy
offense rests on an underlying criminal objective, Count One
necessarily refers to two separate criminal statutes — or three,
if we include the assimilated state statute. Page one of the
indictment, under the heading “Count One,” tracks the elements
of North Carolina law and identifies a conspiracy
to unlawfully break and enter buildings on various
occasions, namely dwelling homes, with the intent to
commit larceny therein, without the consent of the
owners, in violation of Title 18, United States Code,
Section 13, assimilating North Carolina General
Statute, Section 14-54.
4
J.A. 13 (emphasis added). On page two, under the heading “Overt
Acts,” the indictment describes the acts undertaken by White in
“furtherance of the conspiracy,” “[a]ll in violation of the
provisions of Title 18, United States Code, Section 371,” J.A.
14 (emphasis added), the general federal conspiracy statute. 1
On January 22, 2013, White signed a plea agreement with the
Government (the “Agreement”). White agreed to “plead guilty to
Count One” of the indictment, J.A. 35 — the count that ends by
charging White with conspiracy in violation of 18 U.S.C. § 371.
And the Agreement lists the maximum term of imprisonment as five
years, which corresponds to a violation of 18 U.S.C. § 371. So
far, so good. But White also “understands, agrees, and admits”
that “as to Count One of the Indictment to which the Defendant
is pleading guilty,” the “Code section violated” is “18 U.S.C.
§ 13 Assimilating N.C.G.S. § 14-54” — not 18 U.S.C. § 371. J.A.
37. Moreover, the listed “charge” and “elements” track the
state-law offense of conspiracy to commit breaking and entering,
but omit the element of an overt act (which had been described
on page two of the indictment), as required for a violation of
18 U.S.C. § 371 (federal conspiracy). That inconsistency —
1The third and fourth counts of the indictment, not
directly relevant here, charge White with separate federal
offenses under 18 U.S.C. § 661 and § 662, related to the theft
and receipt of stolen property in federal territorial
jurisdictions.
5
which the Government concedes arose from a mistake in drafting
the Agreement — is what has generated the confusion around this
plea.
Unfortunately, that confusion did not manifest itself at
White’s plea colloquy, when it might have been addressed
directly. At the colloquy, the district court confirmed that
White was pleading guilty to Count One. It then read the charge
from the indictment and informed White that Count One is a
felony with a maximum punishment of five years’ imprisonment.
The court also summarized the other counts of the indictment,
starting with Count Two, which it described as “another
violation of 18 U.S.C. Section 13, assimilating North Carolina
General Statute 14-54, as to breaking and entering generally.”
J.A. 21. At the end of the colloquy, the court accepted White’s
guilty plea as voluntarily entered.
At White’s initial sentencing hearing, however, it became
apparent that there was a dispute as to the precise charge to
which White had pleaded guilty. The Probation Office’s
Presentence Investigation Report listed a maximum term of
imprisonment of five years, tracking 18 U.S.C. § 371, and a
Guidelines sentencing range of 37 to 46 months. White objected,
arguing that his guilty plea was to an assimilated state
conspiracy charge under 18 U.S.C. § 13 rather than to federal
conspiracy under 18 U.S.C. § 371. Because the underlying state-
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law offense carried a maximum sentence of one year or less,
White contended, it constituted a misdemeanor rather than a
felony for federal purposes. 2 The Government disagreed with
White as to the terms of the Agreement, maintaining that White
had pleaded guilty to a federal conspiracy charge under 18
U.S.C. § 371. Adding to the confusion, however, it agreed with
White’s alternative argument that his sentence could not exceed
one year even under § 371, and that the Agreement’s reference to
a five-year maximum sentence was therefore erroneous. Plainly
frustrated at the fundamental disagreement that had arisen, the
district court noted that it had “the ability to reject the plea
agreement.” J.A. 49. But the district court decided instead to
continue the matter so that the Government could prepare a
responsive memorandum. 3
2The ACA provides for conformity in the law governing a
federal enclave and the law of the local jurisdiction, with
offenders guilty of a “like offense” and subject to a “like
punishment” as those who act on state property. See 18 U.S.C.
§ 13. Had White conspired to break and enter dwellings on state
property, as opposed to Fort Bragg, in direct violation of North
Carolina General Statute 14-54, he would have been guilty of a
North Carolina Class I felony. See N.C. Gen. Stat. §§ 14-2.4,
14-54. According to White, the maximum sentence for his Class I
felony would have been one year or less under the state
sentencing law then in effect, making the offense a misdemeanor
under federal law, see 18 U.S.C. § 3559(a).
3The Government subsequently changed its position on the
latter point, arguing that White’s maximum sentence under § 371
would exceed one year and thus constitute a felony under federal
law. The district court ultimately agreed with the Government’s
7
At the resumed sentencing hearing, the district court ruled
that the parties “had mutually manifested their assent” to a
plea agreement under which White pleaded guilty under 18 U.S.C.
§ 371, rather than 18 U.S.C. § 13. J.A. 217. Assuming that the
Agreement itself was ambiguous on this point, the court held
that the plea colloquy had clarified the matter in the
Government’s favor, confirming that White had pleaded guilty to
a violation of the federal conspiracy statute. The court
granted the Government’s motion for downward departure and
imposed a sentence of time served. A felony judgment was
entered on August 15, 2014, and this timely appeal followed.
II.
A.
We review the district court’s interpretation of the
parties’ plea agreement de novo. United States v. Wood, 378
F.3d 342, 348 (4th Cir. 2004). In construing a plea agreement,
we rely on general contract law principles. See United States
v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986). But given the
context — the waiver of a defendant’s constitutional right to
revised position, and White challenges that decision on appeal
as well. Because of our disposition of this case on other
grounds, we need not address that issue.
8
trial and the implications for “public confidence in the fair
administration of justice” — we analyze plea agreements with
special scrutiny. Id. (quoting United States v. Carter, 454
F.2d 426, 428 (4th Cir. 1972)). The result is that the law
governing the interpretation of plea agreements is an “amalgam
of constitutional, supervisory, and private [contract] law
concerns.” Id. These concerns “require holding the Government
to a greater degree of responsibility than the defendant” for
any imprecision in a plea agreement, so that ambiguities are
construed against the Government. Id.; see also United States
v. Jordan, 509 F.3d 191, 199–200 (4th Cir. 2007).
B.
One of contract law’s fundamental doctrines is that there
can be no agreement unless there is a “meeting of the minds.”
Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.
1979); see Restatement (Second) of Contracts §§ 17, 20 (1981).
In other words, the parties must have mutually assented to the
essential elements of their bargain. Where “substantial
confusion” calls into question whether there has been such a
meeting of the minds over a plea bargain, there is no valid
agreement to be enforced. Houmis v. United States, 558 F.2d
182, 183 (3d Cir. 1977) (vacating sentence pursuant to guilty
plea in face of “doubt whether any ‘meeting of the minds’ ever
resulted from plea negotiations”); see United States v. Bradley,
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381 F.3d 641, 648 (7th Cir. 2004) (invalidating plea agreement
and vacating judgment because there was no meeting of the minds
on the nature of the charge to which the defendant pleaded).
Here, there was more than enough confusion to call into
question whether the parties ever came to a meeting of the minds
over the precise charge to which White was pleading guilty.
Most important, while the Government appears to have believed
that White was pleading guilty to federal conspiracy charges
under 18 U.S.C. § 371, the Agreement in fact listed a different
statute — “18 U.S.C. § 13 Assimilating N.C.G.S. § 14-54” — as
the “Code section violated.” So fundamental a mismatch on what
is perhaps the most essential term of a plea agreement cannot
help but cast doubt on whether a valid agreement exists.
The Government argues that although the Agreement nowhere
references 18 U.S.C. § 371, it nevertheless makes clear, read as
a whole, that White was pleading guilty to a violation of that
statute. It notes that the Agreement three times cites “Count
One” of the indictment as the count to which White is pleading
guilty, and points as well to the Agreement’s specification of
five years as the maximum term of imprisonment, consistent with
18 U.S.C. § 371. We are not persuaded that these contextual
clues are sufficient to override the express identification of
18 U.S.C. § 13 as the “Code section violated.”
10
Though the Agreement does refer several times to “Count
One,” Count One of the indictment, as discussed above, itself
begins by identifying a conspiracy to violate 18 U.S.C. § 13,
assimilating North Carolina’s breaking and entering law. Only
on the second page does it conclude with a charge under 18
U.S.C. § 371. This is a complicated statutory scheme, and a
layperson could be forgiven for not understanding that Count One
does not charge a separate violation of 18 U.S.C. § 13. Cf.
Houmis, 558 F.2d at 185 (invalidating plea agreement where
layperson may not have understood its terms). Indeed, the
placement of the erroneous citation to 18 U.S.C. § 13 in the
Agreement compounds the confusion, suggesting that Count One
does charge a violation of the Assimilative Crimes Act: section
three of the Agreement provides that “as to Count One of the
Indictment to which the Defendant is pleading guilty,” the “Code
section violated” is “18 U.S.C. § 13 Assimilating N.C.G.S. § 14-
54” (emphasis added). Against all of that, the Agreement’s bare
reference to a five-year maximum term of imprisonment is not
enough to set the record straight, especially in light of the
uncertainty that arose at the sentencing hearing as to whether
that provision also might be in error, even assuming a plea
under 18 U.S.C. § 371.
The Government also argues, and the district court agreed,
that even if the Agreement itself is ambiguous, the plea
11
colloquy resolved that ambiguity in its favor, establishing
clearly that White pleaded guilty to a violation of 18 U.S.C.
§ 371. In contract law, extrinsic evidence is often used to
interpret ambiguous agreements. See Glocker v. W.R. Grace &
Co., 974 F.2d 540, 544 (4th Cir. 1992) (“Alleged ambiguities
should be reconciled . . . by admitting relevant, extrinsic
evidence.”). And we have suggested before that a district
court’s guidance at a plea colloquy may effectively resolve
ambiguities in a plea agreement. See Harvey, 791 F.2d at 303(“[I]t might . . . be possible to establish by extrinsic
evidence that the parties to an ambiguously worded plea
agreement actually had agreed-or mutually manifested their
assent to-an interpretation as urged by the Government.”);
United States v. Bryant, 436 F. App’x 254, 256–57 (4th Cir.
2011) (plea colloquy confirms defendant’s interpretation of plea
agreement). So perhaps under the appropriate circumstances an
oral colloquy could clarify that a defendant manifested his or
her assent to a statutory charge not contained within the
written plea agreement. But given the fundamental nature of the
error in this Agreement, combined with the rule that we construe
ambiguities against the Government, we cannot be confident that
the plea colloquy here resolved all ambiguities in the
Government’s favor.
12
We in no way find fault with the district court’s colloquy,
which amply met the requirements of Rule 11. Fed. R. Crim. P.
11. And it is true, as the Government argues, that the court
carefully advised White that he was pleading guilty to a felony
offense with a maximum sentence of five years and twice read
aloud Count One of the indictment. But in reading Count One,
the district court, through no shortcoming of its own, simply
incorporated the same statutory complexities discussed above,
referring orally to a conspiracy in violation of 18 U.S.C. § 13,
assimilating North Carolina law, as well as to a charge under 18
U.S.C. § 371. And in describing Count Two, the court called it
“another violation of 18 U.S.C. § 13, assimilating North
Carolina General Statute 14-54,” (emphasis added) inadvertently
suggesting that Count One also charged a violation of 18 U.S.C.
§ 13 and thus lending support to White’s interpretation.
To reiterate, the uncertainty in this case was not of the
district court’s making, and we appreciate that court’s efforts
to bring clarity to the situation. But there is sufficient
confusion on this record that we cannot say with any assurance
that the Agreement reflects a meeting of the minds on the charge
to which White was pleading guilty. And in the context of a
guilty plea, where fundamental constitutional rights are at
stake, we must be especially vigilant in finding a meeting of
the minds. Cf. Boykin v. Alabama, 395 U.S. 238, 242–43 (1969)
13
(refusing to accept defendant’s guilty plea without an
affirmative showing that it was made voluntarily and without
ignorance of the offense charged because guilty plea waives
important constitutional rights). Accordingly, we must vacate
White’s judgment of conviction, resting as it does on an invalid
plea agreement. See Bradley, 381 F.3d at 648 (vacating judgment
predicated on plea agreement that did not reflect a meeting of
the minds).
For the same reason, we must deny White’s request that he
be resentenced, on remand, for a violation of 18 U.S.C. § 13,
under the Agreement as he reads it. Where the parties have not
mutually manifested their assent to the same understanding of an
essential term, the result is that there simply is no valid plea
agreement to be enforced. Instead, “we must discard the entire
agreement and require [White] and the [G]overnment to begin
their bargaining all over again.” Id. (quoting United States v.
Barnes, 83 F.3d 934, 941 (7th Cir. 1996)).
III.
For the foregoing reasons, the judgment of the district
court is vacated and the case is remanded for proceedings
consistent with this opinion.
VACATED AND REMANDED
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