Griffin, Ivory v. United States ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2442
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IVORY GRIFFIN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northen District of Indiana, South Bend Division.
No. 04 CR 105—Allen Sharp, Judge.
____________
ARGUED JANUARY 14, 2008—DECIDED APRIL 4, 2008
____________
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Ivory Griffin pled guilty to one
count of possessing an unregistered firearm, 26 U.S.C.
§ 5861(d), and one count of possessing a firearm after
having been previously convicted of a felony, 18 U.S.C.
§ 922(g)(1). The district court sentenced him to a total of
146 months’ imprisonment on both counts. On appeal,
Griffin seeks to withdraw his guilty pleas on the basis that
the court conducted an incomplete plea colloquy. See Fed.
2 No. 07-2442
R. Crim. P. 11(b). Griffin also challenges his sentence on the
grounds that the court (1) denied him his right to allocution
before imposing sentence; and (2) inappropriately entered
a corrected judgment. We affirm Griffin’s convictions.
However, we vacate his sentence and remand for
resentencing.
I. HISTORY
The facts are undisputed. In the fall of 2002, Indiana State
Troopers stopped Griffin for speeding on the Indiana Toll
Road in St. Joseph County. After Griffin consented to a
search of his Pontiac, the officers found in the car’s trunk
a sawed-off shotgun and ammunition. The officers placed
Griffin under arrest, and a grand jury later indicted him on
charges of possessing the firearm and ammunition. See 18
U.S.C. § 922(g)(1); 26 U.S.C. § 5861(d). Griffin eventually
pled guilty to the charges without the benefit of a plea
agreement.
At his plea hearing, the district court conducted the
colloquy required under Fed. R. Crim. P. 11(b) before
accepting Griffin’s guilty pleas. Specifically, the court
explained to Griffin that he had the right to plead not
guilty; to be tried before a jury; and to have counsel, both
before the district court and on appeal. See Fed. R. Crim. P.
11(b)(1)(B), (b)(1)(C), (b)(1)(D). The court also informed
Griffin that, had he elected to proceed to trial, the govern-
ment could not have forced him to testify, and he would
have had the right to confront and cross-examine wit-
nesses who testified against him. See Fed. R. Crim. P.
11(b)(1)(E). After the court advised Griffin that he was
waiving those rights by pleading guilty, see Fed. R. Crim.
P. 11(b)(1)(F), it outlined the nature and essential elements
No. 07-2442 3
of each of the firearms charges brought against him, stated
the maximum possible penalties to which he was exposed,
and explained its obligation to impose a special assess-
ment, see Fed. R. Crim. P. 11(b)(1)(G), (b)(1)(H), (b)(1)(L).
Despite conducting an otherwise thorough Rule 11
colloquy, the district court did not specifically advise
Griffin that he would have had the right to present evi-
dence or that he could have compelled the attendance of
witnesses through the court’s subpoena power. See Fed. R.
Crim. P. 11(b)(1)(E). And although the court informed
Griffin that he would “be sentenced under the appropriate
[Sentencing] Guidelines,” the court did not explain that it
had the authority “to depart” from the applicable guide-
lines range. See Fed. R. Crim. P. 11(b)(1)(M).
Neither Griffin’s counsel, nor the government, informed
the court that it overlooked some portions of the collo-
quy—a point to which we will later return. More impor-
tantly, however, Griffin did not object to the colloquy as it
was conducted. Instead, Griffin reaffirmed that he was
pleading guilty knowingly and voluntarily, and that he
was, in fact, guilty of the two firearms charges. The court
then accepted Griffin’s guilty pleas and scheduled a
sentencing hearing.
The district court opened Griffin’s sentencing hearing by
calculating the guidelines imprisonment range to which he
was subject—130 to 162 months. Immediately after the
court determined the range, however, it stated that it had
“considered the entire record in this case,” and based on
that review it was “the intent of [the] court” to sentence
Griffin to 73 months’ imprisonment on the felon-in-posses-
sion count, and another 73 months for the unregistered
firearm count, for a total of 146 months’ imprisonment. The
court then stated, “Mr. Griffin has a right to address me
4 No. 07-2442
directly, and I will certainly afford him that right.” Griffin
did not object. Instead, he said, “Well, um, there ain’t too
much I can say to change your mind. I just want to take this
opportunity to apologize to my wife for hurting her
feelings and, um, tell her I’m sorry I ain’t going to be there
for her. That’s really it.” Although the court later allowed
Griffin’s attorney and the government’s counsel to present
arguments regarding the appropriate sentence to impose,
it nevertheless entered the 146-month sentence “as indi-
cated.”
II. ANALYSIS
On appeal, Griffin seeks to withdraw his guilty pleas on
the ground that the district court conducted a deficient
Rule 11 colloquy. Specifically, he points to the court’s
failure to advise him that he would have had the right to
present evidence, that he could have compelled the atten-
dance of witnesses through the court’s subpoena power,
and that the court had the authority “to depart” from its
calculated guidelines range. See Fed. R. Crim. P. 11(b)(1)(E),
(b)(1)(M).
Because Griffin did not challenge the sufficiency of the
colloquy before the district court, our review is for plain
error. See Fed. R. Crim. P. 52(b); United States v. Vonn, 535
U.S. 55, 59 (2002); United States v. Villarreal-Tamayo, 467
F.3d 630, 632 (7th Cir. 2006). Under this stringent standard
of review, Griffin shoulders the burden of pointing to
evidence showing that the district court’s incomplete
colloquy affected his “substantial rights.” See Fed. R. Crim.
P. 11(h) (“A variance from the requirements of this rule is
harmless error if it does not affect substantial rights.”); Fed.
R. Crim. P. 52(b) (“A plain error that affects substantial
rights may be considered even though it was not brought
to the court’s attention.”); United States v. Dominguez
No. 07-2442 5
Benitez, 542 U.S. 74, 83 (2004); United States v. Lee, 399 F.3d
864, 866 (7th Cir. 2005). In other words, Griffin must show
that, but for the district court’s omissions, there was a rea-
sonable probability that he would not have pled guilty.
See Dominguez Benitez, 542 U.S. at 83; Lee, 399 F.3d at 866.
Griffin, however, highlights no evidence showing that he
would not have pled guilty; he merely asserts, without
elaboration, that the rights the district court overlooked are
“fundamental” and “affect the fairness of the proceedings.”
And after reviewing the record, we see nothing suggesting
that Griffin would not have pled guilty, particularly
when the evidence that he had a previous felony convic-
tion and possessed an unregistered shotgun was over-
whelming, see United States v. Parker, 368 F.3d 963, 969
(7th Cir. 2004); United States v. Kelly, 337 F.3d 897, 905 (7th
Cir. 2003), and when he informed the court that he was
pleading guilty to the firearms charges because he was, in
fact, guilty, see United States v. Chavers, No. 06-4303, slip op.
at 4 (7th Cir. Jan. 25, 2008) (“[T]he defendant’s statements
at the plea colloquy are presumed to be true . . . .”); United
States v. Logan, 244 F.3d 553, 558 (7th Cir. 2001) (same).
Thus, Griffin’s unsupported assertion of error is insuffi-
cient to prevail on appeal.
This is not the first time that we have addressed a
challenge to a Rule 11 colloquy when counsel failed at the
plea hearing to inform the district court of its omissions.
And it is difficult to understand why counsel here did not
help the court avoid correctable omissions. Confusion over
Rule 11’s requirements should not be the reason; the Rule
is not new, unclear, or even difficult to access. Not only
should counsel for the government, as well as for the
defendant, be familiar with Rule 11 before even walking
into a plea hearing, but it would also be a good practice for
6 No. 07-2442
them to have a copy of the Rule handy so they can follow
along with the court’s colloquy. That way, if the court
overlooks one of the Rule’s provisions, counsel can bring
the omission to the court’s attention and avoid any later
grief. We would like to think that any sentencing judge
would not only correct the omissions that he or she made
while conducting the colloquy, but would appreciate the
opportunity to do so.
Moreover, counsel have nothing to gain by remaining
silent about the district court’s omissions. The government
will not lose its conviction by promptly informing the court
that the colloquy was incomplete, and it can only help it-
self by staving off a potential appeal on the issue. And
although defense counsel might remain silent with the
assumption that the incomplete colloquy will create a
viable issue to appeal, given that our review under
such circumstances would be for plain error, such an
assumption, much more often than not, is a quixotic pipe
dream. See Villarreal-Tamayo, 467 F.3d at 632 (“As a practi-
cal matter, it is incredibly difficult for a defendant to
prove that a district court plainly erred when accepting a
guilty plea.”); see also Parker, 368 F.3d at 967-68; United
States v. Blalock, 321 F.3d 686, 688-89 (7th Cir. 2003); United
States v. Martinez, 289 F.3d 1023, 1029 (7th Cir. 2002); United
States v. Jeffries, 265 F.3d 556, 557-58 (7th Cir. 2001); United
States v. Gilliam, 255 F.3d 428, 433-34 (7th Cir. 2001).
The fact remains, however, that Rule 11 is controlling law
in federal criminal matters. See Fed. R. Crim. P. 1(a)(1). As
such, counsel have a professional duty to speak up if they
notice that the court happens to forget a portion of the
colloquy. See Ind. Rules of Prof’l Conduct R. 3.3(a)(2) (“A
lawyer shall not knowingly fail to disclose to the tribunal
legal authority in the controlling jurisdiction known to the
No. 07-2442 7
lawyer to be directly adverse to the position of the client
and not disclosed by opposing counsel.”); see also Model
Rules of Prof’l Conduct R. 3.3(a)(2) (same); Ill. Sup. Ct.
Rules, Art. VIII, R. 3.3(a)(3) (same); Wis. Sup. Ct. Rules, Ch.
20(b), R. 20:3.3(a)(3) (same).
With that said, we turn to Griffin’s challenge to his
sentence, which, unlike his attempt to withdraw his guilty
pleas, has merit. Griffin argues that his sentence should be
vacated and his case remanded for resentencing on
the ground that the district court violated his right to a
meaningful allocution by announcing the sentence it
intended to impose before affording him the opportunity
to speak. The government agrees. We do as well; a district
court plainly errs by announcing its intended sentence
before a criminal defendant’s allocution. See United States
v. Luepke, 495 F.3d 443, 452 (7th Cir. 2007); United States v.
Groves, 470 F.3d 311, 329-30 (7th Cir. 2006); see also Fed. R.
Crim. P. 32(i)(4)(A)(ii). Accordingly, we need not address
Griffin’s other challenge to his sentence.
III. CONCLUSION
Griffin’s convictions are AFFIRMED. His sentence, how-
ever, is VACATED, and his case is REMANDED to the district
court for resentencing.
USCA-02-C-0072—4-4-08