U.S. v. Bell

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-1338
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CLAYTON BELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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( July 2, 1992 )
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
GOLDBERG, Circuit Judge:
Following a plea of guilty to an information charging him with
misprision of a felony, James Clayton Bell appeals the denial of
his pretrial motion to dismiss the indictment based on speedy trial
grounds. The government contends that Bell's plea was
unconditional, waiving all non-jurisdictional defects in the trial
court proceedings, including his speedy trial claim. We agree with
the government and therefore do not reach Bell's speedy trial
2
claim.
I.
It is well settled that by entering a plea of guilty, a
defendant ordinarily waives all non-jurisdictional defects in the
proceedings below. United States v. Barrientos, 668 F.2d 838, 842
(5th Cir. 1982); see United States v. Easton, 937 F.2d 160, 161-62
(5th Cir. 1991) (failure of United States Attorney to sign
indictment was a non-jurisdictional defect that the defendant
waived by pleading guilty), cert. denied, 112 S. Ct. 906 (1992). In
the Fifth Circuit, a speedy trial violation is a non-jurisdictional
defect waived by a guilty plea. See United States v. Broussard,
645 F.2d 504, 505 (5th Cir. 1981) ("The entry of a knowing and
voluntary guilty plea waives all non-jurisdictional defects in the
proceeding. This disposes of the speedy trial claim."); accord
United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) ("A
defendant's guilty plea waives all non-jurisdictional defect
claims. The right to a speedy trial under the Speedy Trial Act is
non-jurisdictional"); United States v. Pickett, 941 F.2d 411, 415-
17 (6th Cir. 1991) (same); Lebowitz v. United States, 877 F.2d 207,
209 (2d Cir. 1989) (same); United States v. Andrews, 790 F.2d 803,
810 (10th Cir. 1986) (same), cert. denied, 481 U.S. 1018 (1987);
United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984) (same).
But see Acha v. United States, 910 F.2d 28, 30 (1st Cir. 1990)
(noting that the First Circuit has not spoken on the issue).
3
A defendant wishing to preserve a claim for appellate review
while still pleading guilty can do so by entering a "conditional
plea" under Rule 11(a)(2) of the Federal Rules of Criminal
Procedure.1 See Pickett, 941 F.2d at 416-17 (defendant waived
Speedy Trial Act claim because he did not enter a conditional plea
under Rule 11(a)(2)). Such a plea must be in writing and must
identify those case-dispositive pretrial issues that the defendant
is preserving for appeal. Pickett, 941 F.2d at 416; United States
v. Yasak, 884 F.2d 996, 999 (7th Cir. 1989); United States v.
Carrasco, 786 F.2d 1452, 1454 (9th Cir. 1986). Failure to
designate a particular pretrial issue in the written plea agreement
generally forecloses appellate review of that claim. See United
States v. Hausman, 894 F.2d 686, 689 ("Hausman's valid guilty plea
waived his due process claim because it was not preserved in the
plea agreement and did not rise to the level of a jurisdictional
challenge."), cert. denied, 111 S. Ct. 92 (1990).
The conditional plea is also contingent upon the government's
consent and the court's approval. Yasak, 884 F.2d at 999;
Carrasco, 786 F.2d at 1454. The government and the court are free
to reject a conditional plea for any reason or no reason at all.
Yasak, 884 F.2d at 999. In essence, they have absolute "veto power
1
In its entirety, Rule 11(a)(2) provides:
Conditional Pleas. With the approval of the court
and the consent of the government, a defendant may
enter a conditional plea of guilty or nolo contendre,
reserving in writing the right, on appeal from the
judgment, to review of the adverse determination of any
specified pretrial motion. A defendant who prevails on
appeal shall be allowed to withdraw the plea.
4
over entry of such a plea." United States v. Fisher, 772 F.2d 371,
374 (7th Cir. 1985). A defendant thus has "no enforceable ``right'
to enter a conditional plea." Id., quoted in United States v.
Daniel, 866 F.2d 749, 751 (5th Cir. 1989). "Neither legislative
history nor case law indicates that a criminal defendant is
entitled to enter a conditional plea." United States v. Davis, 900
F.2d 1524, 1527 (10th Cir.), cert. denied, 111 S. Ct. 150 (1990).
Accordingly, neither the district court nor the government has any
obligation to advise the defendant of the availability of a
conditional plea. Daniel, 866 F.2d at 751; United States v.
Frazier, 705 F.2d 903, 908 n.8 (7th Cir. 1983).
Although a conditional plea must ordinarily be in writing,
evidencing the government's consent and the district court's
approval, variance from this formality can be excused by an
appellate court. Rule 11(h), Fed.R.Crim.P. ("Any variance from the
procedures required by this rule which does not affect substantial
rights shall be disregarded."); United States v. Fernandez, 887
F.2d 564, 566 n.1 (5th Cir. 1989) ("The non-compliance with Rule
11(a)(2) or the failure to document compliance may thus be seen as
excused by Rule 11(h)."). In Fernandez the defendant pled guilty
and sought to appeal an adverse pretrial ruling. Although the
government conceded that the defendant had reserved her right to
appeal the issue, there was no written plea in the record
identifying the issues that were preserved for appeal and nothing
to indicate that the district court had approved such a plea. We
5
nevertheless excused the absence of a court-approved written
conditional plea and addressed the merits of the defendant's
appeal. We observed that Rule 11(a)'s requirement of court
approval is designed to insure that the pretrial issues reserved
for appeal are case-dispositive and can be reviewed by the
appellate court without a full trial. Fernandez, 887 F.2d at 566
n.1. In Fernandez, as in the case at bar, the defendant sought to
appeal a pretrial matter that satisfied these requirements.
In Yasak the Seventh Circuit also found a valid conditional
plea despite the absence of a writing. Postulating that the
transcript of the plea hearing amounted to "a writing of sorts,"
the court was satisfied that "Rule 11(a)(2)'s intent and purpose
[had] been fulfilled." The transcript of the plea hearing
demonstrated that the government assented to a conditional plea and
the district court accepted it. Yasak, 884 F.2d at 1000.
These cases illustrate that an appellate court can pardon the
informalities of a conditional plea so long as the record
demonstrates that the spirit of Rule 11(a)(2) has been fulfilled --
that the defendant expressed an intention to preserve a particular
pretrial issue for appeal and that neither the government nor the
district court opposed such a plea. When the record is ambiguous
as to whether the plea is conditional or unconditional, however,
the appellate court may question the voluntariness of the plea.
See Carrasco, 786 F.2d at 1455 (vacating plea because "[t]he
6
exchanges in the courtroom between counsel and those between
counsel and the court were ambiguous," and the defendant
"reasonably could have believed that her plea was conditional,
based on both previous discussions with the assistant U.S. attorney
and the ambiguous exchange in the courtroom"). But if the record
contains no manifestation of a reservation of appellate rights, the
plea is presumptively unconditional, and an appellate court may not
reach the merits of the defendant's appeal.
II.
The transcript of the plea proceedings establishes that Bell
pled guilty to an information charging him with a single count of
misprision of a felony, carrying a maximum statutory penalty of 3
years incarceration, below the sentencing guideline range
applicable to Bell. In exchange for that plea of guilty, the
government dismissed the pending indictment, which charged Bell
with possession of a firearm by a convicted felon, an offense with
a maximum statutory penalty of 10 years incarceration. No other
agreements between Bell and the government are apparent from the
transcript of the proceedings.2
Before accepting the plea, the district court engaged Bell in
the requisite Rule 11 colloquy, advising him of the nature of the
charges, the maximum sentence that could be imposed, the right to
2
The plea agreement is memorialized in the "Factual
Resume" provided to Bell and his counsel and was read aloud at
the plea proceedings.
7
a speedy and public trial by jury at which the government would
have to prove him guilty beyond a reasonable doubt, and the right
to have counsel defend him at that trial. (R.2 at 7-8) Bell
stated that he understood his rights, had had ample time to discuss
the matter with his attorney, understood that by pleading guilty he
would be waiving his right to a trial, and that he was pleading
guilty voluntarily. (R.2 at 12-13) Bell's counsel opined that the
plea was voluntary. (R.2 at 13-14). The district court did not
expressly advise Bell that by pleading guilty he would be waiving
his right to seek appellate review of the denial of his speedy
trial motion, but neither Rule 11 nor our decisional law commands
the district court to offer that warning.3 The district court
later sentenced Bell to 3 years incarceration.4
Bell's plea of guilty appears to be unconditional in all
respects. The record contains no indicia of a plea conditioned on
3
We note that the preferred practice is for the district
court to advise the defendant that by pleading guilty he waives
his right to appeal non-jurisdictional pretrial issues. See,
e.g., Davis, 900 F.2d at 1525-26 n.1 (district court explained to
the defendant that "one of the consequences of pleading guilty
was the preclusion of appellate review of suppression rulings");
Fisher, 772 F.2d at 373, 375 (district court admonished defendant
that by pleading guilty, "he waived ``the right to appeal from or
complain of any prior adverse rulings or actions in this
case.'"); cf. Laycock v. State of New Mexico, 880 F.2d 1184, 1188
(10th Cir. 1989) (plea agreement indicated that defendant was
waiving appellate rights).
4
Because the maximum statutory penalty for the misprision
offense (3 years) fell below the sentencing guideline range
applicable to Bell, considering the relevant offense level and
Bell's criminal history, the guideline sentence applicable to
Bell became the statutory maximum 3 years.
8
a right to appeal pretrial matters, much less one complying with
the formalities of Rule 11(a)(2). Contrast Fernandez, 887 F.2d at
566 n.1; Yasak, 884 F.2d at 1000. There is no written agreement
evidencing Bell's intention to preserve for appellate review the
denial of his speedy trial motion, no express acquiescence by the
government, and no statement by the district judge approving a
conditional plea.
Furthermore, it is clear that Bell profited from entering a
plea of guilty. As part of the plea agreement, the government
dismissed the indictment which charged him with possession of a
firearm by a convicted felon, a felony that carries a maximum
statutory penalty (10 years) exceeding the sentencing guideline
range applicable to Bell. Had he been convicted of the firearm
offense the district court would have been constrained to sentence
him within the guideline range, a sentence that, even at the low
end of the range, would have exceeded the 3 year sentence Bell
received by pleading guilty to the misprision offense. It is
plain, therefore, that Bell got the benefit of his plea bargain: he
minimized his potential exposure to 3 years incarceration. See
Fisher, 772 F.2d at 374 (recognizing that government generally will
not consent to a conditional plea "without exacting a price");
Frazier, 705 F.2d at 908 (court was "unwilling to read into the
bargain a never-stated right to appeal" because the defendant
reduced his maximum exposure from five to two years imprisonment).
9
We decline to entertain Bell's suggestion that he pled guilty
in the mistaken belief that he preserved his appellate rights.
From all indications in the record, Bell's plea was voluntary,
knowing, and intelligent, and not conditioned on the reservation of
appellate rights.5 To the extent that his challenge to the plea
would necessitate consideration of evidence outside of this record,
a direct appeal from the conviction is not the proper avenue for
raising such a claim. See United States v. Jennings, 891 F.2d 93,
96 (5th Cir. 1989) (affirming the district court judgment without
prejudice to the defendant's right to bring a claim under 28 U.S.C.
§ 2255 in which he could contend that he waived his speedy trial
rights unknowingly).
III.
The judgment and conviction are AFFIRMED.
5
Two months before the plea proceedings, Bell filed a
motion for continuance indicating that he was not waiving the
speedy trial claim that had been litigated previously in the
district court. Bell suggests that by virtue of that filing, he
manifested his intention to enter a conditional plea. A plea of
guilty operates as a waiver of all pretrial issues, however, even
those that the defendant has properly preserved up to the point
of the plea. Thus, that filing, in and of itself, does not
confute the unconditionality of the plea.