United States v. Biggs

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 3 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 97-2377
(D.C. No. CR-97-284-BB)
BARRY WES BIGGS, (D. N.M.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, BRISCOE, and LUCERO, Circuit Judges.
Defendant Barry Wes Biggs pleaded guilty to assault resulting in serious
bodily injury and was sentenced to thirty months’ imprisonment. The government
appeals, contending the district court erred in not sentencing Biggs to thirty-six
months’ imprisonment as contemplated by the plea agreement. We remand the
case to the district court with directions to vacate Biggs’ sentence and conduct a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
hearing at which the court should explicitly accept or reject the plea agreement.
On May 7, 1997, Biggs was charged in Count I with assault with a
dangerous weapon with intent to do bodily harm, a violation of 18 U.S.C. §
113(a)(3), and in Count II with assault resulting in serious bodily injury, a
violation of 18 U.S.C. § 113(a)(6). Biggs and the government entered into a plea
agreement whereby Biggs agreed to plead guilty to Count II and to be sentenced
to thirty-six months’ imprisonment, and the government agreed to dismiss Count I
and to not bring additional charges. The court held a change of plea hearing on
July 25, 1997, and the court accepted Biggs’ guilty plea to Count II. On October
16, 1997, the court sentenced Biggs to thirty months’ imprisonment.
The government contends our decision in United States v. Veri , 108 F.3d
1311 (10th Cir. 1997), required the court to sentence Biggs in accordance with the
plea agreement. Biggs claims the court rejected the plea agreement and sentenced
him based on his guilty plea alone. The issue for our determination is whether the
district court accepted or rejected the plea agreement.
A court “may accept or reject the [plea] agreement or may defer its decision
as to the acceptance or rejection until there has been an opportunity to consider
the presentence report.” Fed. R. Crim. P. 11(e)(2). If the court accepts the
agreement, it “shall inform the defendant that it will embody in the judgment and
sentence the disposition provided for in the plea agreement.” Fed. R. Crim. P.
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11(e)(3). If, on the other hand, the court rejects the plea agreement, the court
shall, on the record, inform the parties of this fact, advise the
defendant personally in open court . . . that the court is not bound by
the plea agreement, afford the defendant the opportunity to then
withdraw the plea, and advise the defendant that if the defendant
persists in a guilty plea or plea of nolo contendere the disposition of
the case may be less favorable to the defendant than that
contemplated by the plea agreement.
Fed. R. Crim. P. 11(e)(4).
We are unable to determine from the record whether the district court
accepted or rejected the plea agreement. At Biggs’ change of plea hearing, the
court stated:
Mr. Biggs, since you, in fact, acknowledge that you are guilty of
Count II of the complaint, and since you understand your right to a
trial, what the maximum punishment is, and since you are voluntarily
pleading guilty, I will accept your guilty plea and enter a judgment of
guilty on your behalf.
The Court will find the defendant’s plea is free and voluntary;
the defendant fully understands the charge and the penalty; and that
the plea agreement has been properly executed and signed and it will
now be filed . The Court will further find that there is a factual basis
for the plea.
Record II at 12-13 (emphasis added). This dialogue makes plain the district court
intended to accept Biggs’ guilty plea. However, acceptance of a guilty plea and
acceptance of a plea agreement are distinct matters. The only reference the court
made to the plea agreement itself is that it had been “properly executed and
signed and it will now be filed.” Id. Given the subsequent course of proceedings
in the district court, we are hesitant to assume the court by this statement was
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attempting to convey acceptance of the agreement. In any event, this statement
falls short of satisfying the directive in Rule 11(e)(3) that the court “inform the
defendant that it will embody in the judgment and sentence the disposition
provided for in the plea agreement.”
Matters were not clarified at the sentencing hearing. At one point during
the hearing, defense counsel asked the court to “reject the sentencing agreement”
and allow Biggs to withdraw his guilty plea. Record III at 10. Later, the court
asked the government about its position on “withdrawing the sentencing
agreement.” Id. at 13. Finally, the court stated it was “going to permit Mr. Biggs
to withdraw his sentencing agreement.” Id. at 15. At the least, these statements
evidence an intent to withdraw the sentencing agreement. If so, the court must
have rejected the entire plea agreement because, under Veri and Rule 11(e)(1)(C)
and (3), it could not accept the plea agreement but depart from the sentence
specified therein. Notwithstanding this apparent intent to reject the plea
agreement, the court, consistent with adoption of the plea agreement, later
dismissed Count I of the indictment. See Record I, Doc. 28. The government
correctly notes it agreed to move for dismissal of Count I only if the plea
agreement was accepted. Dismissal of Count I appears to have proceeded from
the assumption of court personnel that the plea agreement had been accepted.
Although judgment entered reflects Count I was dismissed “on motion of the
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United States,” the government did not move for dismissal of Count I. Id.
Further, we find no evidence in the record to indicate, as Biggs suggests, that
Count I was dismissed pursuant to Fed. R. Crim. P. 48(b) for “unnecessary delay
in bringing a defendant to trial.” See Appellee’s Br. at 11.
Considered collectively, the statements and conduct of the district court
throughout the proceedings are consistent both with acceptance and rejection of
the plea agreement. Nowhere in the record did the court explicitly and
unambiguously accept or reject the plea agreement as required under Rule
11(e)(3) and (4). We are therefore compelled to remand this case to the district
court with directions to vacate Biggs’ sentence and to reinstate Count I. The
district court should then explicitly accept or reject the plea agreement. If the
court accepts the agreement and so finds on the record in accordance with Rule
11(e)(3), then under Veri , it must sentence Biggs to thirty-six months’
imprisonment as contemplated by the plea agreement. If the court rejects the
agreement, it must so advise Biggs in accordance with Rule 11(e)(4) and proceed
accordingly.
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REMANDED to the district court with directions to vacate Biggs’ sentence,
reinstate Count I, and either accept or reject the plea agreement.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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97-2377, United States of America v. Biggs
LUCERO , Circuit Judge, dissenting.
I agree with the majority that “considered collectively, the statements and
conduct of the district court throughout the proceedings are consistent both with
acceptance and rejection of the plea agreement.” Maj. Op. at 5. However, the
government’s argument that the district court erred by imposing a thirty-month
sentence can only carry weight if the district court accepted, but did not reject, the
plea agreement. The reason is straightforward. If the district court rejected the
plea agreement, or never accepted it in the first place, then the only grounds for
error would be the dismissal of Count 1, which matter the government
conspicuously fails to appeal. Because the government nowhere explains how the
record supports a conclusion of acceptance only , I must respectfully dissent.
As a matter of logic, and consonant with Fed. R. Crim. P. 11(e)(2), the
district court must either have accepted the plea agreement or refused to do so. If
the plea agreement was never accepted, then the government fails to assert
correctable error on appeal. In the absence of a plea agreement, Biggs’s thirty-
month sentence is not erroneous—or, at least, not for any reason stated by the
government. In such circumstances, it might of course have been error for the
district court to dismiss Count 1. But the government fails to appeal that
dismissal; instead, it only appeals Biggs’s sentence.
The government is therefore obliged to argue that the plea agreement was
instead accepted. But the government must actually do more than that.
Specifically, it has to persuade us that the agreement was accepted but not
subsequently rejected by the district court. If the plea agreement was rejected
after its acceptance, the government is again blocked by its failure to appeal the
dismissal of Count 1.
I simply do not see that the record sustains the government’s position.
According to the government, the district court accepted the plea agreement
despite its complete failure to follow the formal requirements of Fed. R. Crim. P.
11(e)(3), namely that the district court “inform the defendant that it will embody
in the judgment and sentence the disposition provided for in the plea agreement.”
But if the government would have us adopt such a finding, it is incumbent upon
them to explain why or how the district court’s refusal to hold Biggs to the agreed
sentence and its statement that it was “going to permit Mr. Biggs to withdraw his
sentencing agreement,” III Tr. at 15, does not also amount to rejection of the plea
agreement. The government never even attempts to explain why the district court
need not formally follow Rule 11(e)(3) to accept a plea agreement, but it must
follow Rule 11(e)(4) to the letter in order to reject one.
Instead, the government attempts to argue that the dismissal of Count 1 was
“pursuant to the plea agreement,” Appellant’s App. at 7, which must therefore
have been in force. That argument fails, not least because dismissal of Count 1
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could only be pursuant to the plea agreement had the government moved for such
dismissal, see Plea Agreement at 4, and the government concedes it never made
such a motion. The closely related argument that the district court only enforced
the plea agreement against the government, but not against Biggs, is similarly
flawed. The government nowhere explains how it was “held” to the plea
agreement. See Appellant’s App. at 13. Indeed, it is hard to see how it could.
The district court never forced—nor even requested—the government to file a
motion to dismiss Count 1. And, as noted, the government never moved to
dismiss that count as required under the plea agreement. The district court simply
dismissed Count 1.
In short, the record can only support two possible conclusions about the
acceptance and rejection of the plea agreement: the agreement was either not
accepted, or, if was accepted, it was subsequently rejected. Under either of these
scenarios, Biggs’s sentence is not in error. It is certainly possible—even, to my
mind, highly probable—that the dismissal of Count 1 was erroneous. But the
government has failed to appeal that dismissal. Because I believe the majority
fails to accord that failure appropriate significance, I would affirm the judgment of
the court below.
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