United States v. Dorian Dee Stuttley , 103 F.3d 684 ( 1996 )

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No. 96-1457
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United States of America, *
*
Appellee, *
*
v. *
*
Dorian Dee Stuttley, *
*
Appellant. *
___________
No. 96-1518
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United States of America, *
*
Appellee, * Appeals from the United States
* District Court for the
v. * District of Minnesota.
*
Charles Antonio Webster, *
*
Appellant. *
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No. 96-1585
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United States of America, *
*
Appellee, *
*
v. *
*
Alexander Faulkner, *
also known as Mike, *
*
Appellant. *
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No. 96-1586
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United States of America, *
*
Appellee, *
*
v. *
*
Alexi Ricardo Bravo, *
also known as Carlos, *
*
Appellant. *
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No. 96-1824
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United States of America, *
*
Appellee, *
*
v. *
*
Charles A. Wise, *
*
Appellant. *
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Submitted: October 24, 1996
Filed: December 24, 1996
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Before WOLLMAN, FLOYD R. GIBSON, and BEAM, Circuit Judges.
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WOLLMAN, Circuit Judge.
The five defendants in this appeal were members of a
conspiracy that distributed cocaine and cocaine base in the
Rochester, Minnesota, area. All five pleaded guilty in the
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district court.1 They jointly and separately raise various issues
on appeal. For the reasons discussed below, we affirm.
1. Alexander Faulkner's motion to withdraw his guilty plea.
Faulkner argues that the district court abused its discretion
in refusing to allow him to withdraw his guilty plea. See United
States v. Capito, 992 F.2d 218, 219 (8th Cir. 1993) (standard of
review). Faulkner points to his dissatisfaction with the plea-
bargaining process and the sentence recommended by the government
in the plea agreement. It took four drafts of the plea agreement
before Faulkner and the government reached an agreement, which was
not until jury selection began for his trial. Faulkner asserts
that each time he rejected a proposed plea agreement, the
government would increase the recommended sentence contained in the
new proposed plea agreement. Faulkner objects to this negotiating
technique by the government and its allegedly superior bargaining
position.
Faulkner put himself in the bargaining position in which he
ultimately found himself, however, and a defendant facing a
government prosecutor who is prepared and ready to go to trial
cannot complain that the government is in an unfairly superior
bargaining position. During the plea negotiations, the government
was free to make such offers as it saw fit, and Faulkner was free
to accept or reject them. Cf. Bordenkircher v. Hayes, 434 U.S.
357, 363-64 (1978) ("[I]n the ``give and take' of plea bargaining,
there is no such element of punishment [for defendants' exercise of
their rights] so long as the accused is free to accept or reject
the prosecution's offer. . . . Defendants advised by competent
counsel and protected by other procedural safeguards are
presumptively capable of intelligent choice in response to
1
The Honorable Michael J. Davis, United States District Judge
for the District of Minnesota.
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prosecutorial persuasion."); United States v. Goodwin, 457 U.S.
368, 380 (1982) ("For just as a prosecutor may forgo legitimate
charges already brought in an effort to save the time and expense
of a trial, a prosecutor may file additional charges if an initial
expectation that a defendant would plead guilty to lesser charges
proves unfounded.").
The district court may allow a defendant to withdraw his
guilty plea only if he shows a "fair and just reason." Fed. R.
Crim. P. 32(e); United States v. Knight, 96 F.3d 307, 309 (8th Cir.
1996). The record demonstrates that Faulkner voluntarily signed
his plea agreement and pleaded guilty, that his change-of-plea
hearing complied fully with all provisions of Federal Rule of
Criminal Procedure 11, and that the district court sentenced
Faulkner in accordance with his plea agreement. Post-plea regrets
by a defendant caused by contemplation of the prison term he faces
are not a fair and just reason for a district court to allow a
defendant to withdraw a guilty plea, or for this court to reverse
the district court.
2. Selective prosecution.
Faulkner, Alexi Bravo, and Dorian Stuttley claim that they
were subjected to selective prosecution in violation of their equal
protection and due process rights. They argue that the district
court erred in denying their motions for discovery and a hearing on
the discovery issue. We cannot review their arguments because all
three defendants waived this claim by entering unconditional guilty
pleas. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); Knight,
96 F.3d at 309 (selective prosecution claim waived by guilty plea);
United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir.) (same),
cert. denied, 117 S. Ct. 256 (1996); United States v. Vaughan, 13
F.3d 1186, 1187-88 (8th Cir.), cert. denied, 114 S. Ct. 1858-4-
(1994).2
3. Downward departures.
Bravo, Charles Wise, and Stuttley each argue that the extent
of the downward departure he was granted by the district court was
not commensurate with the assistance he gave the government
pursuant to his plea agreement. The extent of a downward departure
is not reviewable on appeal. United States v. Goodwin, 72 F.3d 88,
91 (8th Cir. 1995); United States v. Left Hand Bull, 901 F.2d 647,
650 (8th Cir. 1990). Moreover, even if we could review the
district court's downward departures, we cannot review these
particular defendants' claims. In their plea agreements, and at
their guilty plea hearings, each defendant expressly waived the
right to appeal his sentence so as long as the district court
sentenced him within the sentencing range recommended in his plea
agreement. See United States v. Rutan, 956 F.2d 827, 829 (8th Cir.
1992). The district court did so in each case. Because each
defendant was sentenced in accordance with his plea agreement, he
cannot challenge the bargain he made. United States v. His Law, 85
F.3d 379, 379 (8th Cir. 1996) (per curiam).
4. Allocution at Wise's sentencing.
Wise argues that his right of allocution at sentencing, and
also that of his attorney, was improperly limited by the district
court. Our review of the transcript of Wise's sentencing hearing
satisfies us that both Wise and his attorney were given a full and
fair opportunity to allocute.
2
Even if this issue were preserved for our consideration, the
defendants have not made the showing that is required by United
States v. Armstrong, 116 S. Ct. 1480, 1488 (1996), for obtaining
discovery on their selective prosecution claim.
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5. Anders briefs filed on behalf of Wise and Charles Webster.
Counsel on behalf of Wise and Webster filed briefs pursuant to
Anders v. California, 386 U.S. 738 (1967). Wise and Webster have
each raised several issues pro se. We have carefully reviewed the
record and find no merit to the issues raised by Wise. The issues
Webster raises regarding his sentence are not reviewable. After
reviewing the record in accordance with Penson v. Ohio, 488 U.S.
75, 80 (1988), we find no other nonfrivolous issues.
The judgments are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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