United States v. Qubid Coleman ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2246
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
QUBID M. COLEMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois, Rock Island Division.
No. 4:12-CR-40031-SLD-JEH-6 — Sara Darrow, Judge.
____________________
ARGUED NOVEMBER 9, 2015 — DECIDED NOVEMBER 24, 2015
____________________
Before WOOD, Chief Judge, ROVNER, Circuit Judge, and
SHAH, District Judge.*
SHAH, District Judge. Faced with a mandatory life sen-
tence, Qubid Coleman agreed to cooperate with the gov-
ernment, signed a plea agreement, and entered a plea of
guilty to a drug conspiracy charge. The plea agreement con-
* Of the Northern District of Illinois, sitting by designation.
2 No. 14-2246
tained a waiver of Coleman’s right to collaterally attack his
conviction or sentence. At the guilty-plea hearing, Coleman
said that he reviewed the agreement, understood it, and
talked about it with his lawyer, but the district judge did not
expressly discuss the collateral-attack waiver with Coleman.
At sentencing, the district court imposed conditions of su-
pervised release that included conditions that have since
been determined to be impermissibly vague (and the court
did not expressly tailor the conditions to an assessment of
the factors in 18 U.S.C. § 3553(a)).
Although the plea colloquy did not track Federal Rule of
Criminal Procedure 11 with respect to the collateral-attack
waiver, we affirm the conviction because the omission did
not affect Coleman’s substantial rights. But we remand for
resentencing in light of our recent decisions concerning the
imposition of conditions of supervised release. E.g., United
States v. Kappes, 782 F.3d 828 (7th Cir. 2015).
I
Coleman was a runner for a drug conspiracy organized
by his brother, Frederick Coleman, and Jerry Brown. Cole-
man’s role was to deliver crack to customers in Kewanee, Il-
linois, collect money from the sales, and give the proceeds to
his brother and Brown.
Shortly after indictment, Coleman’s lawyer sought an
evaluation of Coleman’s competency. The evaluator deter-
mined that Coleman was malingering. Coleman’s lawyer
sought another evaluation, but Coleman refused to cooper-
ate with the second doctor and his own counsel. Eventually,
Coleman’s case was severed from his co-defendants’, the
court found Coleman to be competent, and Coleman admit-
No. 14-2246 3
ted that his refusal to engage with the process was just an
act.
Coleman’s brother, his partner, and other runners were
convicted at trial, and as Coleman later put it in his own
words at his sentencing hearing, he “just had to come to [his]
senses and do the right thing.” He entered into a plea
agreement with the government. In the agreement, Coleman
admitted to his role in the conspiracy, and also admitted that
his relevant conduct involved at least 280 grams of crack co-
caine. He acknowledged that he faced a mandatory mini-
mum sentence of life imprisonment because he had two or
more prior convictions for a felony drug offense. 21 U.S.C.
§§ 841(b)(1)(A), 846. Coleman agreed to cooperate with law
enforcement officials in the hopes of a reduced sentence, and
the agreement contained waivers of the right to appeal and
to collaterally attack the conviction and sentence.
The collateral-attack waiver provided, in part:
The defendant and the defendant’s attorney
have reviewed [28 U.S.C. § 2255], and the de-
fendant understands the defendant’s rights
under the statute. Understanding those rights,
and having thoroughly discussed those rights
with the defendant’s attorney, the defendant
knowingly and voluntarily waives the defend-
ant’s right to collaterally attack the conviction
and/or sentence. The defendant’s attorney has
fully discussed and explained the defendant’s
right to attack the conviction and/or sentence
collaterally with the defendant. The defendant
specifically acknowledges that the decision to
waive the right to challenge any later claim of
4 No. 14-2246
the ineffectiveness of the defendant’s counsel
was made by the defendant alone notwith-
standing any advice the defendant may or may
not have received from the defendant’s attor-
ney regarding this right. Regardless of any ad-
vice the defendant’s attorney may have given
the defendant, in exchange for the concessions
made by the United States in this plea agree-
ment, the defendant hereby knowingly and
voluntarily waives the defendant’s right to col-
laterally attack the conviction and/or sentence.
The rights waived by the defendant include the
defendant’s right to challenge the amount of
any fine or restitution, in any collateral attack,
including, but not limited to, a motion brought
under [§ 2255], excepting only those claims
which relate directly to the negotiation of this
waiver itself.
At his change-of-plea hearing—after taking the oath to
tell the truth—Coleman said he could read and write in Eng-
lish, and he understood his plea agreement. He confirmed
that his lawyer read the plea agreement to him verbatim.
The court asked Coleman if he had “gone over in detail the
waivers, the appellate waiver provisions with [counsel] in
your plea agreement,” and Coleman said he had. The court
then advised Coleman that “you’re waiving almost all of
your rights to appeal any sentence that the Court might im-
pose in this case,” and, “You’re reserving just one small right
to appeal, and that’s in [counsel’s] representation of you in
negotiating this plea agreement itself.” But the court did not
address the collateral-attack waiver. At the end of the collo-
quy, Coleman pleaded guilty.
No. 14-2246 5
At sentencing, the government made a motion to reduce
Coleman’s sentence based on his substantial assistance in the
investigation or prosecution of others, and the district court
noted that such a motion was “a gift” because “most people
in [Coleman’s] shoes would be going away for life.” The
court found that Coleman lied during his competency pro-
ceedings and faked being mentally ill. His stubbornness per-
sisted until he had a “breakthrough” when his co-defendants
were found guilty at trial. Nevertheless, because his assis-
tance led to a new charge against another person, the court
granted the government’s motion and sentenced Coleman to
324 months’ imprisonment.
The court then imposed a ten-year term of supervised re-
lease that included “standard conditions.” In its oral pro-
nouncement of these conditions, the court did not discuss 18
U.S.C. § 3553(a) or describe what the “standard conditions”
were.
Coleman did not object to the plea colloquy or the condi-
tions of supervised release. He now appeals both his convic-
tion and sentence, arguing that his plea colloquy did not in-
form him of the collateral-attack waiver as required, and that
several conditions of his supervised release are unconstitu-
tionally vague.
II
Before a district court accepts a guilty plea, Rule 11 re-
quires it to address the defendant personally in open court
and determine that he understands “the terms of any plea-
agreement provision waiving the right to appeal or to collat-
erally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N). The
district judge here covered the appellate waiver, but did not
6 No. 14-2246
personally inform the defendant of the collateral-attack
waiver. This was a Rule 11 error. Coleman did not object at
the time, and so under plain-error review, he cannot undo
his conviction unless he shows the error affected his substan-
tial rights. United States v. Polak, 573 F.3d 428, 431 (7th Cir.
2009). This means he must establish “a reasonable probabil-
ity that, but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004).
Compliance with Rule 11 is not meant to exalt ceremony
over substance. United States v. Davila, — U.S. —, 133 S.Ct.
2139, 2147 (2013) (quoting Advisory Committee’s 1983 Note
749). In this context, the defendant’s burden stems from the
“particular importance of the finality of guilty pleas” and so
“should not be too easy.” Dominguez Benitez, 542 U.S. at 82. If
the record reveals an adequate substitute for the missing
Rule 11 safeguard, and the defendant fails to show why the
omission made a difference to him, his substantial rights
were not affected. See United States v. Sura, 511 F.3d 654, 662
(7th Cir. 2009). We look at the entire record to assess the
probability that Coleman would have exercised his right to
trial but for the trial court’s failure to personally address the
collateral-attack waiver. See Davila, 133 S.Ct. at 2150; United
States v. Vonn, 535 U.S. 55, 74–75 (2002); United States v. Wil-
liams, 559 F.3d 607, 613 (7th Cir. 2009).
Coleman has not met his burden. The written plea
agreement and his admissions that his lawyer explained the
agreement to him and he understood the agreement—
presumed to be true, see United States v. Griffin, 521 F.3d 727,
730 (7th Cir. 2008)—are adequate substitutes for the verbal
in-court colloquy about the collateral-attack waiver. The dis-
No. 14-2246 7
trict court noted a concern that Coleman was semi-illiterate,
but the record as a whole reveals that Coleman correspond-
ed in writing with his lawyer, said he could read and write,
and had the agreement read to him verbatim by his lawyer.
The language of the collateral-attack waiver, although con-
taining some cumbersome phrases apparently meant to en-
sure that Coleman was making a personal choice to waive
his rights, was not incapable of being explained to Coleman
by his counsel. The district court mentioned that the plea
agreement had “some pretty complicated wording” and
made sure that Coleman understood it and had no questions
about it. This understanding about the entire agreement nec-
essarily included the collateral-attack waiver.
But the waiver in Coleman’s agreement had a problem. It
excluded from its scope only those claims directly related to
the negotiation of the waiver itself. This was too narrow. As
we explained in Hurlow v. United States, 726 F.3d 958, 965–66
(7th Cir. 2013), waivers of collateral-attack rights are not en-
forceable against claims of ineffective assistance of counsel
with regard to the plea agreement as a whole. The govern-
ment concedes that the language in the agreement was not
accurate, and promises that it will not attempt to enforce the
collateral-attack waiver against ineffective assistance of
counsel claims. This concession corrects any risk that the
waiver will be enforced impermissibly, and provides Cole-
man with the precise admonition that a properly-conducted
Rule 11 colloquy would have provided.
Finally, there is no reasonable probability that Coleman
would have gone to trial had he been advised by the judge
about the proper scope of his waiver. Coleman was facing a
mandatory life sentence and he came to his senses not be-
8 No. 14-2246
cause of a poorly phrased collateral-attack waiver, but be-
cause his co-defendants (including fellow runners) were
convicted at trial. At oral argument, his counsel acknowl-
edged that the evidence against Coleman was strong (and
we note the evidence is even stronger now that Coleman has
testified at a sentencing hearing and admitted to conspiring
to distribute crack), but argued that Coleman still would pre-
fer to roll the dice on an outright acquittal. Counsel also ar-
gued that Coleman’s persistence in pursuing this claim on
appeal reflects the sincerity of his belief. These arguments do
not provide a basis to conclude that it was the waiver that
tipped Coleman’s cost-benefit analysis from trial to guilty
plea. Moreover, Coleman’s arguments on appeal are insuffi-
cient to meet his burden. “Having submitted not so much as
his own affidavit averring that he did not adequately com-
prehend the nature of his [collateral-attack rights] and that
he would not have waived the right had he properly under-
stood it, [Coleman] has failed to produce any evidence
which would demonstrate that his substantial rights were
affected.” Williams, 559 F.3d at 613. Coleman has been found
to intentionally interfere with proceedings when he thinks it
to his advantage. On this record, it would take more than his
word that he wants a trial to persuade us that an omission in
his Rule 11 colloquy affected his substantial rights.
III
Coleman was sentenced in May 2014. Since then, “several
decisions of this court have clarified the analysis required to
decide what conditions [of supervised release] to impose in
what circumstances.” United States v. Harper, —F.3d —, 2015
WL 6839542, at *3 (7th Cir. Nov. 6, 2015). Before imposing a
term of supervised release, the sentencing court should give
No. 14-2246 9
advance notice of the conditions being considered, and when
imposing the conditions, the court must justify the condi-
tions by an adequate statement of reasons reasonably related
to the § 3553(a) factors. Kappes, 782 F.3d at 842–45. These
procedural safeguards were omitted from Coleman’s sen-
tencing, and, as a substantive matter, certain conditions im-
posed on Coleman were impermissibly vague (e.g., “the de-
fendant shall not associate with any persons engaged in
criminal activity”). See id. at 849 (citing United States v.
Thompson, 777 F.3d 368, 376–77 (7th Cir. 2015)).
The government concedes the error and also waives any
reliance on Coleman’s appellate waiver to avoid a remand.
Coleman requests a remand for full resentencing. We have
described prison and supervised release as substitutes as
well as complements, and therefore, it makes sense to re-
mand for a full resentencing to allow the district judge to
reexamine the entire sentence. United States v. Downs, 784
F.3d 1180, 1182 (7th Cir. 2015) (“When a sentence consists of
more than one form of punishment, such as prison, a fine,
restitution, and supervised release, and one of the forms is as
in this case altered by the appellate court, it cannot be as-
sumed that the others should be unaffected.”).
IV
For these reasons, we AFFIRM the judgment of convic-
tion, but VACATE the sentence and REMAND for resentenc-
ing.