United States v. Brune

Case: 19-11360 Document: 00515790813 Page: 1 Date Filed: 03/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 22, 2021
No. 19-11360
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Buck Gene Brune,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:19-CR-159-1
Before Jones, Smith, and Elrod, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Buck Brune is a methamphetamine (“meth”) dealer. In charging him,
the government accidentally cited the wrong statutory subparagraph. After
Brune had pleaded guilty, the court copied that error into its order accepting
his plea but later corrected it. The court applied a sentencing enhancement
on the ground that some of Brune’s meth was imported. Brune contends that
the court’s correction of the erroneous citation amounted to double jeopardy
and that the enhancement was erroneous. We find no error and affirm.
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I.
Brune distributed at least 50–75 pounds of meth over nine months.
For five months, he sold half a pound of meth to one coconspirator each day.
His supplier was “a member of the Michoacán Cartel based in Dallas,
Texas.” 1 Brune concedes that that cartel “borrow[s] its name from a state
in Mexico.”
The government filed a one-count information based on the conspir-
acy provision of 21 U.S.C. § 846, charging Brune with conspiracy to violate
“21 U.S.C[.] §§ 841(a)(l) and (b)(l)(C), namely to possess with intent to dis-
tribute a mixture and substance containing more than 50 grams of metham-
phetamine.” But the information cited the wrong part of § 841(b)(1): Sub-
paragraph B—not C—criminalizes possession of a substance containing
more than 50 grams of meth. In contrast, subparagraph C provides “the
baseline statutory penalty for any quantity of methamphetamine.” United
States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000) (emphasis added). Sub-
paragraph B’s penalty range is 5 to 40 years, § 841(b)(1)(B); subpara-
graph C’s is 20 years or less, § 841(b)(1)(C). The parties agree that subpara-
graph C is a lesser-included offense of subparagraph B.
Despite that initial error and without any plea agreement, Brune
pleaded guilty to subparagraph B, 2 referencing it nine times. For instance,
Brune’s factual resume cited subparagraph B, twice indicated that Brune was
subject to its penalty range, and twice parroted its 50-gram threshold.
Brune’s waiver of indictment also cited subparagraph B. At arraignment,
1
Although that statement makes it unclear whether the cartel or the member is
based in Dallas, Brune agrees that “his source was [sic] Michoacán cartel member based in
Dallas, Texas.”
2
We use “pleaded guilty to subparagraph B” as a shorthand way of denoting his
guilty plea of conspiracy to violate that provision.
2
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Brune admitted he understood its elements and penalty range. His lawyer
admitted that “the intention of the parties was for Mr. Brune to enter a guilty
plea to that offense, which was in the factual resume, and that would be a five
to 40 count”—namely subparagraph B.
In recommending that the district court accept Brune’s guilty plea,
however, the magistrate judge copied the information’s erroneous citation.
The district court adopted that recommendation, accepted the plea, and
adjudged Brune guilty. Thus, the presentence investigation report came back
with subparagraph C’s “maximum term of imprisonment,” namely
“20 years,” even though it should have been 40 years under subparagraph B.
The government raised two objections.
First, the government noted that Brune pleaded guilty to subpara-
graph B—not C. Brune countered, contending, inter alia, that modification
of the court’s order accepting his plea would violate the prohibition against
double jeopardy. The district court rejected Brune’s contentions and
amended its order to reflect that it was accepting Brune’s guilty plea to
subparagraph B.
Second, the government requested a sentencing enhancement for an
offense involving “importation of . . . methamphetamine,” which would raise
Brune’s offense level by two. 3 Brune countered that there was insufficient
evidence for that enhancement, because Brune’s supplier was “based in Dal-
las.” The court found there was sufficient evidence that Brune conspired to
possess meth that “originated in . . . Mexico.”
3
U.S.S.G. § 2D1.1(b)(5). With that enhancement, the recommended sentence was
360 to 480 months. Without it, the recommended sentence would have been 292 to 365
months.
3
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II.
The government contends that jeopardy never attached. 4 Our review
is de novo. United States v. Dugue, 690 F.3d 636, 637–38 (5th Cir. 2012) (per
curiam). We (A) determine that jeopardy does not always attach upon
acceptance of a guilty plea, (B) explain the framework for analyzing attach-
ment under Ohio v. Johnson, 467 U.S. 493 (1984), and (C) apply that frame-
work. There was no double-jeopardy violation.
A.
“No person shall be . . . subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. CONST. amend. V. To violate that clause,
the initial prosecution must have “put [the defendant] in jeopardy.” Id.That inquiry becomes important where the initial prosecution gets derailed.
If a trial gets derailed, it still puts the defendant in jeopardy if jeopardy
(1) attached and (2) terminated. 5 Attachment refers to the “point in criminal
proceedings at which [double-jeopardy] purposes and policies are impli-
cated.” Serfass v. United States, 420 U.S. 377, 388 (1975). For instance, in a
jury trial, attachment occurs “when the jury is empaneled and sworn.” Crist
v. Bretz, 437 U.S. 28, 38 (1978). Termination means that double jeopardy does
not bar a second prosecution where “criminal proceedings against an accused
have not run their full course.” Justs. of Bos. Mun. Ct. v. Lydon, 466 U.S. 294,
308 (1984) (quotation marks and citation omitted). For instance, a mistrial
for a deadlocked jury does not terminate jeopardy, see Richardson v. United
4
At oral argument, the government also said that “[t]his is not a case involving
successive prosecutions.” We do not decide whether modification of an order accepting a
guilty plea, which contains a clerical error, constitutes a successive prosecution, because
Brune’s double-jeopardy theory fails in any event.
5
See Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003); 6 Wayne R. LaFave
et al., Criminal Procedure § 25.1(d)–(e) (4th ed. 2020).
4
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States, 468 U.S. 317, 323–24 (1984), but an acquittal does, see Lydon, 466 U.S.
at 308.
Where a guilty plea gets derailed, the Supreme Court has neither iden-
tified a precise moment of attachment 6 nor applied the concept of termin-
ation. 7 That reticence left lower courts to fill in the gaps. Because acceptance
of a guilty plea is arguably analogous to a jury verdict, courts initially intuited
that jeopardy attaches upon acceptance of a guilty plea. 8 For instance, in our
first foray into the issue, in United States v. Sanchez, 609 F.2d 761, 762 (5th
Cir. 1980), we agreed that “[j]eopardy attaches with the acceptance of a
guilty plea.” Relying solely on a now-abrogated, out-of-circuit case, 9 we pro-
vided no reasoning for that conclusion.
It is no surprise, then, that four years later, the Supreme Court “effec-
tively reject[ed] the double jeopardy concerns expressed . . . in Sanchez.” 10
In Johnson, 467 U.S. at 494, the government charged the defendant with two
sets of greater and lesser-included offenses. Johnson pleaded guilty—over
6
“[J]eopardy attache[s] at least when [a defendant] [is] sentenced.” Ricketts v.
Adamson, 483 U.S. 1, 8 (1987).
7
We found only one state court that has applied termination to guilty pleas. See
People v. Cabrera, 932 N.E.2d 528, 538–39 (Ill. App. Ct. 2010). We know of no federal court
that expressly applied termination to plea proceedings. And, as noted below, Johnson’s test
does not resemble the test for termination. See Part II.A.2.b, infra. Moreover, neither party
asks us to apply termination, so we decline to invoke that concept here.
8
See, e.g., United States v. Jerry, 487 F.2d 600, 606 (3d Cir. 1973) (“Jerry must be
considered to have been convicted by the entry of his plea of guilty just as if a jury had found
a verdict of guilty against him.”).
9
See Sanchez, 609 F.2d at 762 (citing Jerry, 487 F.2d at 606); see also Gilmore v.
Zimmerman, 793 F.2d 564, 571 (3d Cir. 1986) (concluding that Jerry “is inconsistent with
. . . Johnson”).
10
United States v. Foy, 28 F.3d 464, 471 n.13 (5th Cir. 1994). The government
acknowledges that that statement is dictum.
5
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the government’s objection—of the two lesser-included offenses, then
moved to dismiss the greater offenses on double-jeopardy grounds. Id. In
rejecting that claim, the Court applied two concepts that relate to attachment
and termination.
First, although attachment occurs where double-jeopardy “purposes
and policies are implicated,” Serfass, 420 U.S. at 388, Johnson, 467 U.S.
at 501, concluded that no double-jeopardy interest “is implicated” in the
“acceptance of a guilty plea to lesser included offenses while charges on the
greater offenses remain pending.” Thus, although Sanchez had suggested
the opposite, 11 double jeopardy did not bar prosecution of a greater offense
after a plea of a lesser-included offense.
Second, the Court applied a rationale reminiscent of termination’s
requirement that proceedings “run their full course” before a defendant can
successfully invoke double jeopardy. Lydon, 466 U.S. at 308 (quotation
marks and citation omitted). Specifically, in Johnson, 467 U.S. at 502, the
Court sought to ensure that the government has “one full and fair opportun-
ity to convict those who have violated its laws.”
Thus, instead of expressly determining whether jeopardy attached
and terminated, the Court analyzed (1) “finality” and (2) “prevention of
prosecutorial overreaching,” concluding that “[n]o interest . . . protected by
the Double Jeopardy Clause [was] implicated” in that situation. Id. at 501.
Although that framework differs from the attachment and termination book-
ends that the Court employs when examining a trial, Johnson recognized dif-
ferences between guilty pleas and trials. 12 Specifically, guilty pleas provide
11
See Sanchez, 609 F.2d at 762 (“[A]cceptance of a guilty plea to [a lesser-included]
charge would bar later prosecution on the [greater] charge.”).
12
Cf. Johnson, 467 U.S. at 500 n.9 (concluding, in the context of a collateral-
estoppel claim based on the Double Jeopardy Clause, that guilty pleas are “not the same as
6
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prosecutors no “opportunity to marshal [their] evidence and resources.” Id.A defendant can plead guilty even over the government’s objection. Id. at
494. That distinction undermines the assumption of lower courts—which
infected Sanchez—that guilty pleas are relevantly analogous to jury verdicts
and that jeopardy, therefore, attaches upon acceptance of a guilty plea.
Nonetheless, our opinions have continued to recite Sanchez’s rule that
jeopardy attaches upon acceptance of a guilty plea. 13 We must decide wheth-
er Johnson abrogated that statement. Brune contends that, under Sanchez,
jeopardy attaches upon acceptance of a guilty plea. The government con-
tends that Johnson rejected Sanchez’s double-jeopardy concerns, so jeopardy
does not always attach upon acceptance of a guilty plea. We agree because
(1) Johnson abrogated Sanchez’s statement about attachment, (2) Brune’s
counterarguments are not persuasive, and (3) the rule of orderliness does not
preclude that conclusion.
1.
Johnson abrogated Sanchez’s statement regarding attachment. The
First 14 and Third 15 Circuits agree that, under Johnson, jeopardy does not
always attach upon acceptance of a guilty plea. The Second Circuit implies
that jeopardy attaches upon acceptance of a guilty plea 16 and treats Johnson
as an exception to that rule, which applies only where (1) the prosecutor
. . . adjudication[s] on the merits after full trial”).
13
See, e.g., United States v. Jones, 733 F.3d 574, 580 (5th Cir. 2013); see also
Part II.A.3.b, infra.
14
See United States v. Santiago Soto, 825 F.2d 616, 619 (1st Cir. 1987).
15
See Gilmore, 793 F.2d at 571.
16
See Morris v. Reynolds, 264 F.3d 38, 49 (2d Cir. 2001) (“[T]he Supreme Court
has established that, after a court accepts defendant’s guilty plea to a lesser included
offense, prosecution for the greater offense violates the Double Jeopardy Clause.”).
7
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objects to a plea of a lesser-included offense and (2) and the charge on the
greater offense remains pending. 17 The Sixth, Eighth, Ninth, Tenth, and
Eleventh Circuits either largely ignore Johnson 18 or skirt the issue. 19
We conclude that jeopardy does not always attach upon acceptance of
a guilty plea. Two lines of reasoning support that conclusion.
a.
Sanchez’s rule about attachment is inconsistent with Johnson. Under
Sanchez, jeopardy attaches upon acceptance of a guilty plea. Sanchez,
609 F.2d at 762. Moreover, lesser-included and greater offenses constitute
the “same offense” for double-jeopardy purposes. Brown v. Ohio, 432 U.S.
161, 166 n.6 (1977). Thus, if Sanchez were correct that jeopardy attaches upon
acceptance of a guilty plea of a lesser offense, then—under Supreme Court
precedent 20—a successive prosecution for a greater offense would implicate
double-jeopardy interests. 21 Consequently, if jeopardy had attached upon
17
See Morris, 264 F.3d at 49 (“In contrast, the Double Jeopardy Clause is not
offended when the greater offenses charged in the indictment remain ‘pending’ at the time
of a guilty plea, and when the prosecution objects to the plea to a lesser included offense.”).
18
See United States v. Bearden, 274 F.3d 1031, 1037–38 (6th Cir. 2001); United
States v. Baggett, 901 F.2d 1546, 1548 (11th Cir. 1990); United States v. Patterson, 381 F.3d
859, 864 (9th Cir. 2004); but see United States v. Patterson, 406 F.3d 1095, 1097 (9th Cir.
2005) (Kozinski, J., dissenting from denial of rehearing en banc).
19
See United States v. Wampler, 624 F.3d 1330, 1341 (10th Cir. 2010); Bally v.
Kemna, 65 F.3d 104, 108 (8th Cir. 1995).
20
Attachment occurs where double-jeopardy “purposes and policies are impli-
cated.” Serfass, 420 U.S. at 388. It follows that, if jeopardy attaches vis-à-vis a lesser-
included offense, then prosecution of a greater offense would have double-jeopardy
implications.
21
Sanchez, 609 F.2d at 762 (concluding that, because jeopardy attaches upon
acceptance of a guilty plea, “acceptance of a guilty plea to [a lesser-included] charge would
bar later prosecution on the [greater] charge”). Brune likewise contends that, because
jeopardy allegedly attaches upon acceptance of a guilty plea, “[a]cceptance of a plea to a
8
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acceptance of Johnson’s guilty plea to the lesser-included offense, then pro-
secution of him for the greater offense would have had double-jeopardy con-
sequences. 22
But the government’s prosecution of Johnson for the greater offense
did not invoke double-jeopardy interests. 23 It necessarily follows that jeo-
pardy did not attach upon the court’s acceptance of Johnson’s guilty plea of
the lesser-included offense. Thus, under Johnson and contrary to Sanchez,
jeopardy does not always attach upon acceptance of a guilty plea.
The Third Circuit came to a similar conclusion. Although the court
had previously held that “jeopardy . . . attached with the acceptance of [a]
guilty plea,” Jerry, 487 F.2d at 606, the court later concluded that Jerry’s
statement about attachment was “only an assumption,” which “is inconsis-
tent with . . . Johnson,” Gilmore, 793 F.2d at 571. Importantly, Jerry was the
sole basis for Sanchez’s statement that jeopardy attaches upon acceptance of
a guilty plea. See Sanchez, 609 F.2d at 762 (citing Jerry, 487 F.2d at 606).
In sum, Sanchez’s rule about attachment is inconsistent with Johnson.
Moreover, Johnson abrogated Sanchez’s sole buttress—Jerry. It is no sur-
prise, then, that Brune concedes that Sanchez and Johnson are in conflict.24
lesser-included charge bars later prosecution on the associated greater charge.”
22
See Patterson, 406 F.3d at 1097 (Kozinski, J., dissenting from denial of rehearing
en banc) (“If jeopardy had attached when [Johnson] pled guilty to the lesser offenses, the
Double Jeopardy Clause would have barred the state from prosecuting him.”).
23
See Johnson, 467 U.S. at 501 (concluding that “acceptance of a guilty plea to
lesser included offenses while charges on the greater offenses remain pending” does not
implicate any “interest . . . protected by the Double Jeopardy Clause”).
24
Brune acknowledges that “Johnson limits . . . or gives some exceptions to
Sanchez.”
9
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b.
Johnson’s holding has the hallmarks of attachment, not some other
facet of double jeopardy. For instance, attachment occurs at the “point in
criminal proceedings at which [double-jeopardy] purposes and policies are
implicated.” 25 Consistently with that concept, Johnson, 467 U.S. at 501, held
that “[n]o interest . . . protected by the Double Jeopardy Clause is impli-
cated” in that situation. Johnson’s focus on the threshold inquiry—whether
double jeopardy is even implicated in the first place—thus sounds in
attachment.
Conversely, Johnson does not resemble an exception to the double-
jeopardy prohibition. 26 For instance, where the Supreme Court applies such
an exception, it first “assume[s] that jeopardy attached” and then asks
whether an exceptional circumstance “removed the double jeopardy bar.”
Ricketts, 483 U.S. at 8. Johnson neither assumed that jeopardy attached nor
used language about removing the double-jeopardy bar.
Finally, although Johnson’s holding appears to implement the policy
behind termination, see Part II.A, supra, it does not appear to engraft termin-
ation’s legal test onto plea proceedings. For instance, to establish that jeo-
pardy did not terminate after a trial, a prosecutor must show a “manifest nec-
essity” to “retry the defendant.” Richardson, 468 U.S. at 323–24 (quotation
marks and citation omitted). Johnson did not, however, employ anything akin
25
Serfass, 420 U.S. at 388; see also United States v. Jorn, 400 U.S. 470, 480 (1971)
(“Thus the conclusion that ‘jeopardy attaches’ when the trial commences expresses a
judgment that the constitutional policies underpinning the Fifth Amendment’s guarantee
are implicated at that point in the proceedings.”).
26
Brune’s counsel suggested at oral argument that Johnson might constitute an
exception to Sanchez’s rule about attachment—not to the double-jeopardy prohibition in
general. And, even if he is right in that interpretation of Johnson, we still must apply
Johnson’s framework to see whether that exception would apply.
10
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to the manifest-necessity standard. 27 In fact, the First and Third Circuits,
which had attempted to graft that standard onto pleas, concluded that John-
son was inconsistent with those precedents. See Soto, 825 F.2d at 619; Gil-
more, 793 F.2d at 571.
In short, Johnson’s holding has more to do with attachment than with
termination or an exception to the double-jeopardy bar.
2.
Brune raises two counterarguments. 28 Neither is persuasive.
a.
The Supreme Court said—about a century ago, in a case that didn’t
mention double jeopardy—that “[a] plea of guilty . . . is itself a conviction.”
Kercheval v. United States, 274 U.S. 220, 223 (1927). And double jeopardy
prohibits “a second prosecution for the same offense after conviction.”
27
See Johnson, 467 U.S. at 494–502; Soto, 825 F.2d at 619 (concluding that, under
Johnson, “it becomes unnecessary to demonstrate ‘manifest necessity’ to warrant a judicial
vacation of a guilty plea”).
28
Additionally, Brune contends, for the first time in his reply brief, that Sanabria
v. United States, 437 U.S. 54, 69 (1978), stands for the proposition that “final judgment as
to one substantive charge contained in the single count of the information bars future pro-
secution of [sic] other charge contained in the same count.” “We ordinarily disregard argu-
ments raised for the first time in a reply brief.” Cotropia v. Chapman, 978 F.3d 282, 289
n.14 (5th Cir. 2020) (cleaned up). Even if he had properly presented that argument, it
would fail for two reasons.
First, the trial court acquitted Sanabria after trial had begun, Sanabria, 437 U.S.
at 59, and the Court concluded that “a verdict of acquittal . . . may not be reviewed . . .
without putting the defendant twice in jeopardy,” id. at 64 (cleaned up). Here, the court
accepted Brune’s guilty plea—it did not acquit him. Moreover, the acceptance of a guilty
plea, at least where a charge remains pending, “has none of the implications” of an
acquittal after trial has already begun. Johnson, 467 U.S. at 501–02. Second, the acquittal
in Sanabria constituted a final judgment. Sanabria, 437 U.S. at 72–73. But the court modi-
fied its acceptance of Brune’s guilty plea before it sentenced him or entered judgment.
11
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Johnson, 467 U.S. at 498 (quotation marks and citation omitted). Thus, if we
myopically weld those precedents together, the argument goes, attachment
must occur upon the plea of guilty, because that is when the conviction
occurs. See Morris, 264 F.3d at 49. The Johnson dissenters made that sort of
argument and lost. 29 It is no surprise, then, that, besides its cameo in Morris,
that argument largely inhabits pre-Johnson concurrences 30 and student
notes. 31 Brune raises it here, and it fails for three reasons.
First, that theory is inconsistent with Johnson. If Johnson’s guilty plea
of a lesser-included offense constituted his conviction for double-jeopardy
purposes, then the government’s subsequent prosecution would have impli-
cated double-jeopardy interests. But the subsequent prosecution did not do
that. Johnson, 467 U.S. at 501. And, to the extent that Kercheval conflicts
with Johnson, we must follow Johnson as the Court’s later pronouncement.
Second, Brune cherry-picks Kercheval’s language. In Kercheval,
274 U.S. at 225, the Court had nothing to say about double jeopardy; it con-
cluded that evidence of a withdrawn guilty plea is inadmissible at trial. In any
event, a more vigorous examination of Kercheval undermines Brune’s argu-
ment. Although Brune notes Kercheval’s statement that a guilty plea is “con-
clusive” of guilt, he omits its observation that it would be wrong to “hold [a
withdrawn] plea conclusive.” Id. at 224. Kercheval even noted that, in some
29
See Johnson, 467 U.S. at 503 (Stevens, J., dissenting) (concluding that “a plea of
guilty has the same legal effect as a conviction” and that double jeopardy “prohibits prose-
cution of a defendant for a greater offense when he has already been convicted on the lesser
included offense” (cleaned up)). That argument also made a brief appearance in Ninth
Circuit dictum. See United States v. Smith, 912 F.2d 322, 324–25 (9th Cir. 1990).
30
See United States v. Combs, 634 F.2d 1295, 1300 (10th Cir. 1980) (McKay, J.,
concurring in part and dissenting in part).
31
Andrew Cassady, Comment, No Rest for the Weary: Double Jeopardy Implications
of Vacating a Defendant’s Guilty Plea, 81 U. Cin. L. Rev. 1539, 1551 (2013).
12
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circumstances, courts may “vacate a plea of guilty,” “substitute a plea of not
guilty,” and “have a trial.” Id. Brune does not engage with any of that lan-
guage. We thus decline to graft Kercheval’s inapposite, cherry-picked state-
ment onto the double-jeopardy context in a manner that undermines Johnson.
Third, Brune’s reasoning places more weight on Kercheval’s use of
“conviction” than it can bear. See id. at 223. Because a judgment of convic-
tion can occur only after sentencing, Fed. R. Crim. P. 32(k)(1), a “defen-
dant ha[s] not been formally convicted” until “entry of judgment and sen-
tencing on the accepted guilty plea.” 32
b.
Some scholars suggest that jeopardy attaches where “the risks of
injury” are sufficiently great. LaFave et al., supra, § 25.1(d) (quotation
marks and citation omitted). Moreover, a guilty plea exposes a defendant to
risks, because it constitutes an admission of material facts along with a waiver
of myriad rights. Combs, 634 F.2d at 1300 (McKay, J., concurring in part and
dissenting in part). Thus, Brune contends that, “[w]ith the risk of a deter-
mination of guilt, jeopardy attaches.” That argument fails for two reasons.
First, Brune confuses necessary and sufficient conditions. Citing Ser-
fass, 420 U.S. at 391–92, he contends that a risk of a determination of guilt is
sufficient to show attachment. 33 But he shrewdly omits any quotation,
32
Combs, 634 F.2d at 1298; see also Mitchell v. United States, 526 U.S. 314, 325
(1999) (rejecting the notion that “incrimination is complete once guilt has been adjudi-
cated,” if a “sentence has yet to be imposed” (quoting Estelle v. Smith, 451 U.S. 454, 462
(1981)).
33
He also contends that jeopardy attaches whenever a procedure begins before a
trier of fact who can determine guilt. He is right that double jeopardy “does not come into
play until a proceeding begins before a trier having jurisdiction to try the question of the
guilt or innocence of the accused.” Serfass, 420 U.S. at 391 (quotation omitted). But that
does not mean that identification of a procedure before a trier of fact is sufficient to show
13
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because Serfass really says that, “[w]ithout risk of a determination of guilt,
jeopardy does not attach.” Id. Thus, Serfass said that risk is necessary—not
sufficient—to show attachment. That makes sense, because, before trial, a
defendant must conduct motions and jury selection, which “may decide the
defendant’s case.” Crist, 437 U.S. at 49 (Powell, J., dissenting). Yet, even
with exposure to those risks, jeopardy does not attach until later. Id. Thus,
pointing to some risk of a determination of guilt is not enough to show that
jeopardy attaches.
Second, Brune’s single-minded focus on risks ignores the govern-
ment’s interest in completing its prosecution. Yet, Johnson, 467 U.S. at 502,
considered it relevant that “ending prosecution now would deny the State its
right to one full and fair opportunity to convict those who have violated its
laws.” A singular focus on risks would allow a defendant to place himself in
jeopardy—by pleading guilty—and thus “use the Double Jeopardy Clause as
a sword to prevent the State from completing its prosecution.” Id. Johnson,
therefore, bars us from focusing on risk to the exclusion of the government’s
interest in completing its prosecution.
3.
Given those considerations, jeopardy does not always attach upon
acceptance of a guilty plea. 34 We thus join the majority of circuits that have
analyzed the impact of Johnson and, in doing so, we affirm our only previous
attachment. For instance, procedures—such as motions and opening statements—occur
in front of a trier of fact before jeopardy attaches in a bench trial. See Crist, 437 U.S. at 49(Powell, J., dissenting).
34
Accord Patterson, 406 F.3d at 1097 (Kozinski, J., dissenting from denial of re-
hearing en banc); Soto, 825 F.2d at 620; Gilmore, 793 F.2d at 571; LaFave et al., supra,
§ 25.1(d) (concluding that the rule that jeopardy attaches upon acceptance of a guilty plea
is “an oversimplification, one that fails to speak to the many situations in which a guilty
plea will not bar further prosecution”).
14
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analysis of that issue, namely that Johnson “effectively reject[ed] the double
jeopardy concerns expressed . . . in Sanchez.” Foy, 28 F.3d at 471 n.13. The
rule of orderliness does not preclude that conclusion, because (a) Sanchez
made pronouncements about attachment only in now-abrogated dicta, and
(b) none of our later opinions reciting Sanchez’s rule about attachment grap-
pled with whether Johnson rejected Sanchez’s rule.
a.
Sanchez made conclusions about attachment only in dicta. For in-
stance, although Sanchez, 609 F.2d at 762, stated that “[j]eopardy attaches
with the acceptance of a guilty plea,” the trial court accepted Sanchez’s
guilty plea only conditionally, so there was no double-jeopardy violation, id.
at 763. Because any successive prosecution occurred before acceptance of
the guilty plea, we needed only to conclude—as then-Judge Gorsuch did in
his analysis of that issue—that jeopardy does not attach at least until
acceptance of a guilty plea. 35
Because the broader assumption about attachment was unnecessary
to our decision, that “broad and unnecessary language of [Sanchez] [can]not
be considered binding authority.” 36 Moreover, because Johnson “implicitly
overrule[d]” Sanchez’s statement about attachment, “we have the . . . obli-
gation to declare and implement this change in the law.” Hines v. Quillivan,
982 F.3d 266, 271 (5th Cir. 2020) (quotation marks and citation omitted). In
short, Sanchez’s statements about attachment are abrogated dicta.
35
See Wampler, 624 F.3d at 1341 (“[J]eopardy does not attach at least until the
guilty plea is accepted, and perhaps not until even later.” (emphasis added)); cf. Ricketts,
483 U.S. at 8 (“[J]eopardy attache[s] at least when [a defendant] [is] sentenced.” (empha-
sis added)).
36
Texaco Inc. v. Duhé, 274 F.3d 911, 920 n.13 (5th Cir. 2001) (citing Kastigar v.
United States, 406 U.S. 441, 454–55 (1972)).
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b.
We have repeated Sanchez’s rule about attachment in three, post-
Johnson, published cases. 37 None of those opinions, however, grappled with
whether Johnson rejected Sanchez’s rule. 38 And, under the rule of orderli-
ness, “[a]n opinion restating a prior panel’s ruling does not sub silentio hold
that the prior ruling survived an uncited Supreme Court decision.” Gahagan
v. United States Citizenship & Immigr. Servs., 911 F.3d 298, 302 (5th Cir.
2018). Thus, “the rule of orderliness has little persuasive force when the
prior panel decision at issue conflicts with a Supreme Court case to which the
subsequent panel decision is faithful.” Kennedy v. Tangipahoa Par. Libr. Bd.
of Control, 224 F.3d 359, 370 n.13 (5th Cir. 2000). Because our prior opinions
did not analyze whether Johnson abrogated Sanchez’s rule about attachment,
we are not bound by their rote recitations of Sanchez’s rule. 39
37
See Jones, 733 F.3d at 580; United States v. Kim, 884 F.2d 189, 191 (5th Cir. 1989);
Fransaw v. Lynaugh, 810 F.2d 518, 523 (5th Cir. 1987).
38
See Jones, 733 F.3d at 580; Kim, 884 F.2d at 191; Fransaw, 810 F.2d at 523.
39
See Gahagan, 911 F.3d at 302. The parties also debate the district court’s statu-
tory power to correct an erroneous citation in an order accepting a guilty plea, but a “court
may at any time correct a clerical error in a[n] . . . order.” Fed. R. Crim. P. 36. We
have “used Rule 36 to correct errors in the judgment relating to . . . the offense underlying
a plea.” United States v. Cooper, 979 F.3d 1084, 1089 (5th Cir. 2020), cert. denied, 2021 WL
1073631 (U.S. Mar. 22, 2021) (No. 20-7122).
Specifically, where a “judgment refers to the offense of conviction” as one offense,
but “the record indicates that [the defendant] pleaded guilty to” another offense, that
“reflects a clerical error in the written judgment.” United States v. McCoy, 819 F. App’x
262, 262 (5th Cir. 2020) (per curiam). Given the nine references to subparagraph B, “the
record indicates that [Brune] pleaded guilty” to it. Id. Moreover, the “transcript of the
plea hearing makes clear that [Brune] pleaded guilty” of subparagraph B, given its multiple
references thereto. Cooper, 979 F.3d at 1089. Finally, the district court’s modification of
its order did not “contradict[] the court’s and the parties’ intentions as to the judgment.”
United States v. Crawley, 463 F. App’x 418, 421 (5th Cir. 2012) (per curiam). As Brune’s
counsel frankly admitted, “the intention of the parties was for Mr. Brune to” plead guilty
to subparagraph B. The district court had statutory authority to correct its clerical error.
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B.
Because jeopardy does not always attach upon acceptance of a guilty
plea, we next determine the test for ascertaining when it attaches.
Johnson had to address that same question. Specifically, the Court had
held that the Double Jeopardy Clause barred prosecution of a greater offense
after a court accepted a guilty plea and sentenced for a lesser-included
offense. Brown, 432 U.S. at 169, 162. Because Johnson also involved a suc-
cessive prosecution of a greater offense after a plea of a lesser-included
offense, the Court needed to distinguish Brown—which implicated double
jeopardy—from Johnson—which did not. Johnson, 467 U.S. at 496. To do
so, the Court determined that “the principles of finality and prevention of
prosecutorial overreaching applied in Brown” were absent in Johnson. Id.
at 501.
Johnson thus “provided a framework . . . for determining whether
jeopardy attaches when a defendant pleads guilty.” 40 Courts must examine
“the twin aims of the Double Jeopardy Clause: protecting a defendant’s
finality interests and preventing prosecutorial overreaching.” Patterson,
406 F.3d at 1097 (Kozinski, J., dissenting from denial of rehearing en banc).
The Second Circuit disagrees, concluding that the lodestar of John-
son’s analysis was the fact that the greater charge remained pending at the
time Johnson pleaded guilty of the lesser-included offense. 41 Johnson, how-
ever, used “pending” once. Johnson, 467 U.S. at 501. Moreover, it did so
only within its analysis of finality and prosecutorial overreach. See id. To be
40
Patterson, 406 F.3d at 1097 (Kozinski, J., dissenting from denial of rehearing
en banc); see also Soto, 825 F.2d at 620 (examining the potential for prosecutorial overreach
and a defendant’s finality interests to determine whether jeopardy attached).
41
See Morris, 264 F.3d at 50 (“[T]he only question is whether the felony charge
was ‘pending.’”).
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sure, whether a charge of a greater offense was pending may prove relevant,
but that was not the Court’s guiding principle in distinguishing Brown.
C.
To determine whether jeopardy attached, we consider (1) Brune’s
finality interest and (2) prevention of prosecutorial overreach.
1.
Johnson employed three considerations in ascertaining a defendant’s
finality interest. None is present here.
First, the Court asked whether the situation before it involved any of
the “implications of an implied acquittal which results from a verdict . . . ren-
dered by a jury.” Id. at 501–02 (cleaned up). “The mere acceptance of a
guilty plea,” however, “does not carry the same expectation of finality and
tranquility that comes with a jury’s verdict.” Soto, 825 F.2d at 620. More-
over, given a court’s ability to correct errors, an erroneous citation in an order
accepting a plea does not imply an acquittal. Fed. R. Crim. P. 36.
Second, Johnson asked whether “the State had the opportunity to
marshal its evidence and resources more than once or to hone its presentation
of its case through a trial.” Johnson, 467 U.S. at 501. The government had
no opportunity to marshal evidence against Brune, however, because his plea
proceedings “[did] not involve the ordeal of a trial.” Soto, 825 F.2d at 618.
Third, Johnson, 467 U.S. at 501, noted that the charges of the greater
offenses were pending, which was relevant presumably because “Johnson
could have foreseen a prosecution on the pending charges,” Soto, 825 F.2d
at 619. Evidence abounds that Brune foresaw a subparagraph B prosecution.
His factual resume referenced subparagraph B five times, reciting its citation,
penalty range, and 50-gram threshold. His waiver of indictment cited that
subparagraph. At his arraignment, the government referenced that subpara-
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graph’s elements and penalty range. Finally, Brune’s counsel conceded that
“the intention of the parties was for Mr. Brune to enter a guilty plea” to
subparagraph B. Given that evidence, Brune’s finality interest is even more
miniscule than that of the defendant in Johnson: Johnson was merely on notice
of his greater offense; Brune intended to plead guilty of his.
In short, Brune intended to plead guilty to subparagraph B. Because
the government botched its citations, he now seeks “an undeserved windfall
by shaving” years off his sentence. Patterson, 406 F.3d at 1095 (Kozinski, J.,
dissenting from denial of rehearing en banc). In other words, Brune seeks to
“use the Double Jeopardy Clause as a sword to prevent the State from com-
pleting its prosecution” of subparagraph B—a contingency that Johnson
sought to avoid. 42 Brune’s finality interest is nil.
2.
Johnson employed two considerations in identifying prosecutorial
overreach. First, in Johnson, 467 U.S. at 501–02, there was no overreach
where the charge for the greater offense remained “pending.” In contrast,
some authorities suggest there might be overreach where the government
charges a defendant “with a second crime after getting him to plead guilty”
with a plea agreement. 43 The government did not bring new charges against
Brune. Nor did it dupe him with a plea agreement—there never was one to
42
Johnson, 467 U.S. at 502. Brune suggests that Johnson is limited to cases in which
a defendant proactively games the system—not where he passively stumbles across a wind-
fall and then invokes double jeopardy. Johnson, however, did not limit its reasoning to
defendants who proactively game the system.
43
See Patterson, 406 F.3d at 1099 (Kozinski, J., dissenting from denial of rehearing
en banc); see also LaFave et al., supra, § 25.1(d) (finding potential for prosecutorial
overreach where the government prosecutes a greater offense after “enter[ing] into an
agreement that a greater charge will be dismissed in exchange for the defendant’s plea to a
lesser charge”).
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begin with.
Second, Johnson, 467 U.S. at 502, considered whether “ending prose-
cution now would deny the [government] its right to one full and fair oppor-
tunity to convict those who have violated its laws.” Because Brune’s case
has not gone to trial, and the government has not dismissed the charge for
subparagraph B, the government has not yet had one full opportunity to
convict him of subparagraph B. And there’s nothing unfair to Brune about
that result: The government seeks to prosecute him for the only charge to
which Brune himself pleaded guilty.
In sum, the Double Jeopardy Clause “was not written or originally
understood to pose an insuperable obstacle to the administration of justice in
cases”—like Brune’s—“where there is no semblance of . . . oppressive prac-
tices.” Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018) (quotation marks and
citation omitted). Correction of a typo isn’t oppressive.
Because Brune’s finality interest is low, and there is no evidence of
prosecutorial overreach, jeopardy did not attach upon the court’s acceptance
of Brune’s guilty plea. There is no double-jeopardy violation.
III.
Brune avers that the district court clearly erred in applying an “impor-
tation” sentencing enhancement. We disagree.
Under U.S.S.G. § 2D1.1(b)(5), a court can increase a defendant’s
offense level by two if his offense “involved the importation of . . . metham-
phetamine.” “We review the district court’s factual determination that an
offense involved the importation of methamphetamine for clear error.” 44
44
United States v. Nimerfroh, 716 F. App’x 311, 315 (5th Cir. 2018) (per curiam);
see also United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012).
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We will find no clear error so long as the court’s conclusion is “plausible in
light of the record read as a whole.” United States v. Dinh, 920 F.3d 307, 310
(5th Cir. 2019) (quotation marks and citation omitted).
Brune sold at least 50–75 pounds of meth over nine months. His sup-
plier was a member of the Michoacán Cartel based in Dallas, and that cartel
borrows its name from a Mexican state. Those facts support the inference
that some of Brune’s drugs were imported. 45 The importation finding is
“plausible in light of the record read as a whole,” so there is no clear error. 46
AFFIRMED.
45
See United States v. Castillo-Curiel, 579 F. App’x 239, 239 (5th Cir. 2014) (per
curiam) (considering as relevant to application of the importation enhancement the fact
that “the methamphetamine was associated with two Mexican drug cartels”).
46
Dinh, 920 F.3d at 310 (quotation marks and citation omitted). In an unpublished
opinion, we concluded that “the mere reference to a cartel is [not] sufficient to prove by a
preponderance of the evidence that [a defendant] was dealing with imported metham-
phetamine.” See Nimerfroh, 716 F. App’x at 316. Nimerfroh is distinguishable because the
cartel had not been identified, but the evidence shows that Brune dealt specifically with the
Michoacán Cartel. Id.
21