United States v. Darral Morris ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3154
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRAL C. MORRIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13-CR-30232 — Michael J. Reagan, Chief Judge.
____________________
ARGUED APRIL 12, 2016 — DECIDED MAY 6, 2016
____________________
Before WOOD, Chief Judge, FLAUM, and WILLIAMS, Circuit
Judges.
FLAUM, Circuit Judge. Defendant-appellant Darral C. Mor-
ris pled guilty to unlawful possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1). Morris later tried to with-
draw his guilty plea, but the district court denied his motion.
The district court found that Morris met the requirements of
the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”),
2 No. 15-3154
and accordingly sentenced him to 180 months in prison. Mor-
ris appeals, arguing that the ACCA is unconstitutionally
vague and challenging the district court’s denial of his motion
to withdraw his guilty plea. We affirm.
I. Background
In August 2013, police officers in southwestern Illinois dis-
covered a fully-loaded semi-automatic pistol in Morris’s vehi-
cle. On October 23, 2013, a federal grand jury indicted Morris
with one count of unlawful possession of a firearm by a felon
in violation of § 922(g)(1). Morris pled guilty on October 2,
2014. The plea agreement included an anticipatory sentencing
guideline range based on the underlying charge and Morris’s
criminal history. The agreement stated that if Morris met the
requirements of the ACCA, he would have a total offense
level of 31, a criminal history category of VI, and a sentencing
range of 118 to 235 months. At Morris’s plea hearing, the dis-
trict court reiterated that the government’s sentencing recom-
mendation under the ACCA would be 118 to 235 months.
However, it later came to light that the plea agreement
contained a typographical error. The sentencing range should
have been 188 to 235 months, as reflected in the presentence
investigation report (“PSR”), which was filed after Morris’s
guilty plea. Because of this error in the plea agreement, Morris
filed a written motion to withdraw his guilty plea on July 7,
2015. The district court denied this motion.
On September 25, 2015, over Morris’s objection, the district
court found that Morris met the requirements of the ACCA
and sentenced him to 180 months in prison, a fine of $750,
three years of supervised release, and a $100 special assess-
ment. Morris appeals.
No. 15-3154 3
II. Discussion
A. Armed Career Criminal Act
On appeal, Morris argues that the district court erred in
sentencing him under the ACCA because the statute is uncon-
stitutionally vague. We review de novo a defendant’s sentence
pursuant to the ACCA. United States v. Zuniga, 767 F.3d 712,
718 (7th Cir. 2014), cert. denied, 135 S. Ct. 1018 (2015). We also
review de novo the constitutionality of a statute. Hegwood v.
City of Eau Claire, 676 F.3d 600, 603 (7th Cir. 2012).
A statute is unconstitutionally vague if it “fails to give or-
dinary people fair notice of the conduct it punishes, or [is] so
standardless that it invites arbitrary enforcement.” Johnson v.
United States, 135 S. Ct. 2551, 2556 (2015). Vagueness chal-
lenges to statutes that do not involve First Amendment inter-
ests are examined in light of the facts of the case at hand.
Maynard v. Cartwright, 486 U.S. 356, 361 (1988).
In this case, Morris was convicted of violating § 922(g)(1),
which typically carries a statutory maximum sentence of ten
years. § 924(a)(2). However, the ACCA provides for a manda-
tory minimum sentence of fifteen years if the defendant has
three previous convictions for a “violent felony or a serious
drug offense, 1 or both, committed on occasions different from one
1 Section 924(e)(2)(B) of the ACCA defines “violent felony” as
any crime punishable by imprisonment for a term exceed-
ing one year … that—
(i) has as an element the use, attempted use, or threat-
ened use of physical force against the person of an-
other; or
4 No. 15-3154
another … .” § 924(e)(1) (emphasis added). The district court
found that Morris has three previous convictions that fall un-
der the ACCA: a residential burglary conviction and two se-
rious drug convictions. The latter are from 2010, when Morris
was convicted of two counts of the unlawful delivery of a con-
trolled substance for two drug sales that occurred on Febru-
ary 20, 2009 and February 24, 2009.
Morris argues that the “committed on occasions different
from one another” language of the ACCA is unconstitution-
ally vague because the statute does not specify a methodology
for determining whether criminal acts are considered sepa-
rate events. He contends that this vagueness grants undue
discretion to courts and that the ACCA fails to provide people
of ordinary intelligence a reasonable opportunity to under-
stand what conduct the ACCA encompasses. We disagree.
Our case law makes clear that Morris’s two drug offenses
are considered separate convictions under the ACCA. We
(ii) is burglary, arson, or extortion, [or] involves use of ex-
plosives ....
Section 924(e)(2)(A) defines the term “serious drug offense” as
(i) an offense under the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import
and Export Act (21 U.S.C. 951 et seq.), or chapter 705
of title 46 for which a maximum term of imprison-
ment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufac-
ture or distribute, a controlled substance (as defined
in section 102 of the Controlled Substances Act (21
U.S.C. 802)), for which a maximum term of imprison-
ment of ten years or more is prescribed by law[.]
No. 15-3154 5
have explained that “crimes that occur simultaneously will be
deemed to have occurred on a single occasion; but the passage
of even a small amount of time between crimes” may be
enough to separate them for purposes of the ACCA. United
States v. Elliott, 703 F.3d 378, 383 (7th Cir. 2012). The emphasis
is on whether the defendant had the opportunity to “cease
and desist or withdraw” from the criminal activity before en-
gaging in the subsequent crime. United States v. Cardenas, 217
F.3d 491, 492 (7th Cir. 2000).
In Cardenas, we treated two sales of crack cocaine on the
same day as separate and distinct criminal episodes. Id. The
sales were made to the same people, forty-five minutes apart,
and took place half a block from one another. Id. Despite the
temporal proximity and similar fact pattern, we reasoned that
because the defendant had plenty of time to change his mind
between sales, the sales constituted two separate transactions
for purposes of the ACCA. Id. Similarly, Morris had ample
time to cease and desist from the criminal activity between the
first drug sale on February 20, 2009 and the second sale on
February 24, 2009. Thus, the district court properly treated
these two counts as two separate predicate convictions for
purposes of the ACCA. See United States v. Nigg, 667 F.3d 929,
936 (7th Cir. 2012) (three armed robberies committed within
six days constituted separate criminal episodes).
Morris argues that because some of our sister circuits have
applied the ACCA differently, the statute is unconstitution-
ally vague. Compare United States v. Hudspeth, 42 F.3d 1015,
1019–21 (7th Cir. 1994) (en banc) (holding that each unlawful
entry was a separate and distinct episode where defendants
burglarized three adjacent businesses in a strip mall over the
course of thirty minutes), with United States v. McElyea, 158
6 No. 15-3154
F.3d 1016, 1021 (9th Cir. 1998) (treating a fact pattern almost
identical to that of Hudspeth as a single criminal episode).
However, a circuit split is insufficient to show that a statute is
unconstitutionally vague. United States v. Morrison, 686 F.3d
94, 104 (2d Cir. 2012) (“[I]t is manifest that conflicts between
courts over the interpretation of a criminal statute do not in
and of themselves render that statute unconstitutionally
vague.”); United States v. Kernell, 667 F.3d 746, 754 (6th Cir.
2012) (“[T]he fact that different courts have interpreted a stat-
ute differently does not make the statute vague—if that were
true, a circuit split over the interpretation of a criminal statute
would by definition render the statute unconstitutional.”). 2
Thus, Morris has not shown that the ACCA is unconstitu-
tionally vague as applied to the facts of his case, and the dis-
trict court did not err in sentencing him accordingly.
B. Guilty Plea
Next, Morris argues that the district court erred in denying
his motion to withdraw his guilty plea. A guilty plea must be
made “voluntarily and knowingly.” United States v. Fard, 775
F.3d 939, 943 (7th Cir. 2015). After the court accepts a guilty
plea, a defendant may withdraw his plea if he presents a “fair
2 Morris also argues that there is tension between our statement in
United States v. Godinez, 998 F.2d 471, 473 (7th Cir. 1993) that “the question
is not whether one crime overlaps another but whether the crimes reflect
distinct aggressions,” and Justice Brennan’s statement in his concurrence
in Ashe v. Swenson, 397 U.S. 436, 449 (1970) (Brennan, J., concurring) that a
defendant’s alleged robbery of six poker players in the home of one of the
victims was “one criminal episode.” This argument fails because Ashe in-
volved issues of collateral estoppel and double jeopardy and did not ad-
dress the application of the ACCA. See 397 U.S. at 442. As such, the state-
ment Morris references is taken out of context.
No. 15-3154 7
and just reason” for doing so. Fed. R. Crim. P. 11(d)(2)(B). We
review the district court’s denial of a defendant’s motion to
withdraw a guilty plea for an abuse of discretion and its fac-
tual findings supporting that decision for clear error. Fard, 775
F.3d at 943.
In this case, the plea agreement contained a typographical
error and incorrectly stated that the sentencing range would
be 118 to 235 months imprisonment, when the correct guide-
line range was actually 188 to 235 months. Morris was sen-
tenced to 180 months imprisonment.
Morris argues that due to the error in the plea agreement,
his plea was not made “knowingly” and he did not have a full
understanding of the consequences of pleading guilty. See
United States v. Harden, 758 F.3d 886, 888–89 (7th Cir. 2014) (ex-
plaining that a guilty plea must be made with “sufficient
awareness of the relevant circumstances and likely conse-
quences” (quoting Brady v. United States, 397 U.S. 742, 748
(1970))). Morris contends that he bargained for a particular
sentence—118 to 235 months—and that the government
promised to recommend a sentence on the low end of the
guideline range. According to Morris, the prosecutor broke
this promise by recommending a sentence at the low end of
the range of 188 to 235 months, and thus Morris believes he is
entitled to rescind his plea.
This argument fails for several reasons. As the district
court aptly noted, the written plea agreement clearly states
that the anticipated sentencing range in the agreement is “not
binding on the Court, and that the Court ultimately will de-
termine the Guideline range after receiving the Presentence
Report … .” Although there was a typographical error in the
plea agreement, the PSR contained the correct range, and
8 No. 15-3154
Morris received a copy of the PSR. Further, the plea agree-
ment states: “The Defendant expressly recognizes that, re-
gardless of the Guideline range found or the sentence im-
posed by the Court, Defendant will not be permitted to with-
draw Defendant’s plea of guilty.” The district court empha-
sized this qualifying language during the plea hearing, stat-
ing:
Until we get the Presentence Report and I con-
sider it … I don’t know where you are going to
be. On your best day you get probation. On your
worst day you get life… . With respect to the
plea agreement, the Government believes, and
you are not committing to this, … you are going
to have a … sentencing range of 118 months to
235 months … . I don’t know if that is right or
not … . Understand that is a recommendation,
and I have to consider it, but I do not have to
follow it. Do you understand that?
Morris repeatedly confirmed that he understood the district
court’s explanation, which supports our conclusion that he
knew the consequences of pleading guilty. See United States v.
Ellison, 835 F.2d 687, 693 (7th Cir. 1987) (noting that a determi-
nation of the defendant’s state of mind at the time of the entry
of a plea depends in large part on what the defendant said
during the plea hearing).
Additionally, our precedent provides that a discrepancy
between the sentencing range stated in the plea agreement
and the sentencing range found by the court is an insufficient
basis for withdrawing a guilty plea. United States v. Patterson,
576 F.3d 431, 438–39 (7th Cir. 2009). In Patterson, the defendant
signed a plea agreement anticipating a sentence that ended
No. 15-3154 9
up being lower than the sentence ultimately imposed by the
district court. Id. at 438. Patterson argued that the district
court should have vacated his guilty plea because of this dis-
crepancy. Id. We upheld the validity of the plea agreement,
explaining that the plea agreement stated that it did not con-
trol the sentence imposed by the district court. Id. at 438–39.
The same reasoning applies here. Thus, the district court did
not abuse its discretion in denying Morris’s motion to with-
draw his plea. See United States v. Barnes, 83 F.3d 934, 938 (7th
Cir. 1996) (noting that although there must be a “meeting of
minds” on all essential elements of a valid guilty plea, the de-
fendant’s sentence is not an essential term of the agreement,
and the parties leave the determination of the sentence to the
discretion of the district court).
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.