In re United States

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0086p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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IN RE: UNITED STATES OF AMERICA,
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Petitioner. > No. 21-1318
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┘
On Petition for Writ of Mandamus.
United States District Court for the Eastern District of Michigan at Detroit.
No. 2:19-cr-20840-1—David M. Lawson, District Judge.
Argued: October 21, 2021
Decided and Filed: April 26, 2022
Before: SUTTON, Chief Judge, BATCHELDER and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Andrew Goetz, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Petitioner. Gerald K. Evelyn, Detroit, Michigan, for Respondent Ashley Townsend. John
Gleeson, DEBEVOISE & PLIMPTON LLP, New York, New York, for Respondent Hon. David
M. Lawson. ON PETITION FOR WRIT OF MANDAMUS AND REPLY: Andrew Goetz,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Petitioner.
ON RESPONSE: Gerald K. Evelyn, Robert E. Higbee, Detroit, Michigan, for Respondent
Ashley Townsend. John Gleeson, Matthew Specht, Monisola Salaam, DEBEVOISE
& PLIMPTON LLP, New York, New York, for Respondent Hon. David M. Lawson. Bradley R.
Hall, CRIMINAL DEFESE ATTORNEYS OF MICHIGAN, Lansing, Michigan, for Amicus
Curiae.
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OPINION
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ALICE M. BATCHELDER, Circuit Judge. Before us is a petition from the United States
for a writ of mandamus directed to the United States District Court for the Eastern District of
No. 21-1318 In re United States Page 2
Michigan. The petition poses questions about a district court’s authority to comment on pending
plea-bargain agreements and to reject an agreement once it is finalized.
At a pretrial hearing, the district court informed the United States and the Defendant that
it had a longstanding “practice” of rejecting plea agreements with certain plea-bargaining terms.
The parties thereafter negotiated a plea agreement in private and decided to include the very
terms that the court had stated that it disfavored. The court rejected the agreement, and the
United States filed this petition, claiming that the court violated Rule 11 of the Federal Rules of
Criminal Procedure and abused its discretion. We AGREE and GRANT the petition.
I.
In February 2020, the United States indicted Defendant Ashley Townsend on four counts:
one count for being a felon in possession of a firearm (Count One), two counts of possession
with intent to distribute controlled substances (Counts Two and Three), and one count of
possessing firearms in furtherance of the crimes charged in Counts Two and Three (Count Four).
If Townsend were convicted at trial on all charges, he would face a minimum aggregate prison
term of 20 years and a maximum term of life in prison.
In August 2020, the district court held a pretrial hearing. During the hearing, the parties
requested an adjournment of the final pretrial conference because they were engaged in plea
discussions. In response, the district court expressed its belief that the U.S. Attorney’s Office for
the Eastern District of Michigan had recently adopted a policy of offering only plea deals that
contain sentencing-appeal and collateral-review waivers (collectively, “appeal waivers”). The
court then stated on the record its disapproval of these types of waivers and its intention to
continue rejecting plea agreements that contain them:
My practice over the years has not—has been not to accept plea agreements that
have waivers of rights to collateral review or the right to appeal a sentence
determination or sentencing issue that is disputed, and I continue to—I intend to
continue that practice.
So if it’s the Government’s position that the plea agreement must contain that
language, I will not accept the plea agreement. I will reject it. So you may think
about having to prepare for trial nonetheless. Just keep that in mind as you engage
in your discussions.
No. 21-1318 In re United States Page 3
Afterwards, the parties negotiated a plea agreement in private, and, on August 31, 2020,
presented it to the court via email. In it, Townsend agreed to plead guilty to Counts Three and
Four, and the United States agreed to dismiss Counts One and Two and withdraw its 21 U.S.C.
§ 851 prior-felony information. The agreement reduced Townsend’s mandatory minimum
sentence by half, to an aggregate of 10 years. It also contained a joint recommendation that
Townsend be classified as a career offender within the meaning of U.S.S.G. § 4B1.1 and the
United States’s recommendation that the total sentence imposed should not exceed 300 months.
Most importantly for purposes of this appeal, the agreement included two appeal waivers:
12. Appeal Waiver. The defendant waives any right he may have to appeal his
conviction on any grounds. If the defendant’s sentence of imprisonment does not
exceed 300 months, the defendant also waives any right he may have to appeal his
sentence on any grounds.
13. Collateral Review Waiver. The defendant retains the right to raise claims
alleging ineffective assistance of counsel, as long as the defendant properly raises
those claims by collateral review under 28 U.S.C. § 2255. The defendant also
retains the right to pursue any relief permitted under 18 U.S.C. § 3582(c), as long
as the defendant properly files a motion under that section. The defendant,
however, waives any other right he may have to challenge his conviction or
sentence by collateral review, including, but not limited to, any right he may have
to challenge his conviction or sentence on any grounds under 28 U.S.C. § 2255,
28 U.S.C. § 2241, or Federal Rule of Civil Procedure 59 or 60.
These waivers do not preclude Townsend’s appealing his sentence if it exceeds the United
States’s recommendation of 300 months, or seeking relief for ineffective assistance of counsel
(28 U.S.C. § 2255), compassionate release (18 U.S.C. § 3582(c)), or relief based upon
prosecutorial misconduct by the United States.
Shortly after receiving the parties’ email, the court responded that it would not accept the
plea agreement. The court’s email stated: “[The court] has reviewed the Rule 11 Agreement and
will not agree to its terms. If it doesn’t get amended, we’ll proceed with the pretrial conference
on [September] 2nd.” The following day, the United States and Townsend filed a joint motion
asking the court to accept the plea agreement. The court then cancelled the plea hearing and
appointed a retired United States District Judge for the Eastern District of New York to file a
response as amicus curiae. Six months later, after full briefing from amicus curiae and the
No. 21-1318 In re United States Page 4
parties, the court issued a written opinion denying the parties’ joint motion and rejecting the
proposed plea agreement.
The United States filed a petition for writ of mandamus in this court, seeking an order
directing the district court to “accept or reject the [parties’] plea agreement without regard to [its]
‘practice’ against [appeal waivers].” In the petition, the United States describes on- and off-the-
record statements by the district court in other cases expressing its policy against permitting
appeal waivers. Townsend filed a brief agreeing with the United States that mandamus relief is
appropriate. The district court responded in opposition.
II.
The United States asks us to issue a writ of mandamus directing the district court to
reconsider the parties’ plea agreement and cease its “practice” of prohibiting all plea agreements
containing appeal waivers. To issue that writ, we must first decide whether the district court
participated in the parties’ plea negotiations and whether it improperly rejected the resulting plea
agreement; and, if it did either, whether mandamus is the appropriate remedy.
Our jurisdiction to issue a writ of mandamus comes from the All Writs Act, 28 U.S.C.
§ 1651, which allows us to “restrain[] the[] excesses” of “judges of any inferior court.” In re
Univ. of Mich., 936 F.3d 460, 466 (6th Cir. 2019) (quoting 3 William Blackstone, Commentaries
on the Laws of England *110–11); see also In re Acker, 596 F.3d 370, 372 (6th Cir. 2010) (“The
traditional use of the writ . . . has been to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.”
(quotation omitted)). Mandamus, however, is an extraordinary remedy. In re Univ. of Mich.,
936 F.3d at 466. It is appropriate only where there is a clear abuse of discretion or a judicial
usurpation of power. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004). For us to
issue a writ, the United States must “(1) have no other adequate means of obtaining relief, (2)
demonstrate a right to issuance that is clear and indisputable, and (3) show that issuance of the
writ is appropriate under the circumstances.” In re Univ. of Mich., 936 F.3d at 466.
This is one of those rare cases in which mandamus is warranted. First, the United States
has no other adequate means of obtaining relief. The United States has only a limited right to
No. 21-1318 In re United States Page 5
direct appeal, see 18 U.S.C. § 3731, and that right does not extend to interlocutory appeal.
Second, the need for mandamus is clear and indisputable. The district court violated Rule 11’s
prohibition on judicial involvement in plea negotiations and abused its discretion by not offering
case-specific reasons for rejecting the parties’ plea agreement. Third, mandamus is appropriate
because the district court clearly overstepped its authority, and this writ presents important and
likely reoccurring questions.
A. No Other Adequate Means of Obtaining Relief
The United States has no other adequate means of obtaining relief. “[A] mandamus lies,
if there be no other adequate, specific, legal remedy.” In re Univ. of Mich., 936 F.3d at 466
(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 152, 2 L.Ed. 60 (1803)). If we deny
mandamus, the United States cannot file an interlocutory appeal under 18 U.S.C. § 3731, nor can
it later file a direct appeal if Townsend pleads to the indictment, is convicted by a jury, or is
acquitted after trial. See In re United States, 945 F.3d 616, 624 (2d Cir. 2019). Even if the
United States could challenge the rejection of this plea agreement on direct appeal, the United
States would “be damaged or prejudiced in a way not correctable on appeal.” See John B. v.
Goetz, 531 F.3d 448, 457 (6th Cir. 2008). An unnecessary direct appeal is the very thing the
parties sought to avoid when they submitted their plea agreement, and the United States’s
extremely limited right to appeal at all cannot provide it with an “adequate means to attain
relief.” Id. at 458; see also In re United States, 945 F.3d at 624 (“Our precedents make it
abundantly clear . . . that the government’s limited right of appeal in criminal cases is relevant to
the mandamus inquiry.”); United States v. Vinyard, 539 F.3d 589, 595 (7th Cir. 2008) (granting
the United States’s mandamus petition to correct a misapplication of Rule 11 that resulted in a
potential double jeopardy problem); United States v. Wexler, 31 F.3d 117, 128 (3d Cir. 1994)
(considering the United States’s limited right to appeal in granting it mandamus); 16 Charles
Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3936.2
(3d ed. 2021) (“Statutory and double-jeopardy limits on government appeals have encouraged
review by extraordinary writ in circumstances that would not support writ review on petition by
a defendant.”).
No. 21-1318 In re United States Page 6
According to the United States, the primary purpose of plea agreements that include
appeal waivers is to ensure finality. That is a strong, legitimate, and well-established
government interest. See United States v. Blewett, 746 F.3d 647, 651 (6th Cir. 2013) (en banc)
(noting that the government’s interest in finality is “of the weightiest sort” and that it “is essential
to the operation of our criminal justice system” (quotations omitted)); Lee v. United States, 137
S. Ct. 1958, 1967 (2017) (“[T]he strong societal interest in finality has ‘special force with respect
to convictions based on guilty pleas.’” (quotation omitted)). That interest would be undermined
if the United States were limited to seeking relief only after it renegotiated a plea agreement
without appellate waivers that is less favorable from the United States’s perspective, and then
litigated the issue on direct appeal after sentencing. See In re Vasquez-Ramirez, 443 F.3d 692,
701 (9th Cir. 2006) (holding that “going to trial” or “pleading guilty to . . . and then appealing [a]
conviction” are “inadequate” remedies for purposes of mandamus, as they would result in
“substantial prejudice” to the defendant, the government, and the judicial system (quotations
omitted)).
To be sure, a party may not invoke mandamus as a “substitute” for the ordinary appellate
process. Will v. United States, 389 U.S. 90, 97 (1967). But where, as here, the normal appeals
process does not suffice, mandamus is not merely a substitute. In this case, mandamus is the
only adequate means for the United States either to compel the district court to adhere to Rule 11
or to challenge the district court’s self-proclaimed “practice.” While we are mindful of the
district court’s argument that allowing mandamus here may create an influx of government-
sought writs, that argument does not carry the day. The court is equipped to weed out meritless
petitions: we stringently examine three threshold questions in every mandamus case. Those
measures are adequate to prevent us from issuing an unjustified number of writs.
Finally, because Townsend is not the party seeking the writ, his means of relief are
irrelevant. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980) (“[T]his Court has
required that a party seeking issuance have no other adequate means to attain the relief he
desires.” (emphasis added)); Will, 389 U.S. at 96 (“[T]he party seeking mandamus has the
burden . . . .” (cleaned up)). It, therefore, makes no difference that Townsend has a greater
opportunity to file a direct appeal. See United States v. Cota-Luna, 891 F.3d 639, 651 (6th Cir.
No. 21-1318 In re United States Page 7
2018) (considering a defendant’s claim on direct appeal where the defendant accepted a less-
favorable plea agreement after his initial agreement was rejected); United States v. Doggart,
906 F.3d 506, 509 (6th Cir. 2018) (considering a defendant’s claim on direct appeal where he
was convicted by a jury and sentenced after his plea agreement was rejected). But even if we did
consider Townsend’s means of relief, a direct appeal would still be inadequate. See In re Benvin,
791 F.3d 1096, 1103 (9th Cir. 2015) (granting defendant’s mandamus petition and finding that
his choice between trial and a less-favorable plea agreement did “not provide [him] adequate
relief and [could] cause prejudice not correctable on appeal”).
Therefore, the United States—the party seeking the writ—has no adequate means of
obtaining relief without facing uncorrectable prejudice.
B. The Right to Mandamus is Clear and Indisputable
The United States must prove that its right to mandamus is clear and indisputable. This is
satisfied where the district court commits a “clear abuse of discretion or judicial usurpation of
power.” In re Univ. of Mich., 936 F.3d at 466. In seeking mandamus, the United States alleges
two errors by the district court: (1) the court participated in plea negotiations by expressing its
disapproval of appeal waivers during a pretrial hearing; and (2) the court improperly rejected the
resulting plea agreement based on the court’s policy of refusing to accept those same terms.
1. Judicial Participation
Rule 11 of the Federal Rules of Criminal Procedure prohibits a district court from
participating in plea negotiations. The Rule provides: “An attorney for the government and the
defendant’s attorney . . . may discuss and reach a plea agreement. The court must not participate
in these discussions.” Fed. R. Crim. P. 11(c)(1).1 We have “stringently” interpreted and
enforced that prohibition. United States v. Fleming, 239 F.3d 761, 765 (6th Cir. 2001); United
States v. Skidmore, 998 F.2d 372, 375 (6th Cir. 1993). Classic examples of prohibited judicial
participation are when a district court attempts to “rewrite the plea agreement from the bench,”
1
The Federal Rules of Criminal Procedure were revised in 2002. Prior to that revision, Rule 11(e)(1)
contained the prohibition against judicial participation in plea negotiations. United States v. Davila, 569 U.S. 597,
605 n.3 (2013).
No. 21-1318 In re United States Page 8
Fleming, 239 F.3d at 765, or endeavors to “facilitate a plea,” United States v. Barrett, 982 F.2d
193, 196 (6th Cir. 1992), abrogated on other grounds by United States v. Davila, 569 U.S. 597(2013). Rule 11 does, however, allow the district court to be involved in the acceptance or
rejection of certain plea agreements. See Fed. R. Crim. P. 11(c)(2), (c)(3)(A). But in those
circumstances, the court’s role is limited to evaluating the plea agreement once it has been
finalized by the parties and disclosed to the court. Fed. R. Crim. P. 11(c)(1)–(5); United States v.
Harris, 635 F.2d 526, 528 (6th Cir. 1980); see also United States v. Markin, 263 F.3d 491, 496–
98 (6th Cir. 2001) (comparing cases in which judicial involvement occurred after the completion
of the plea agreement with those in which the involvement occurred during plea negotiations—
noting that the latter “clearly would have violated [Rule 11]”). Accordingly, when a district
court expresses its preference for or against certain plea-bargaining terms in an unfinalized or
hypothetical plea agreement, the court impermissibly participates in plea negotiations in
violation of Rule 11.
The district court here did just that. Rather than wait to consider a finalized plea
agreement, the court initiated substantive plea-related discussions. More specifically, during a
pretrial hearing, the court expressed to the parties its preference—calling it a “practice”—that
plea agreements not include sentencing-appeal and collateral-review waivers. The court then
warned the parties to “keep [the court’s position] in mind as [they] engage[d] in . . . discussions.”
The court implicitly affirmed its position in a subsequent email when it informed the parties that
the plea agreement would be rejected as written. At best, this conduct strongly suggested that the
parties should not include those terms in their plea agreement. At worst, it conditioned the
court’s approval of a future plea agreement on the absence of those terms. Either way, this left
the parties with the legally insupportable impression that no defendant could waive his or her
appellate rights in a plea agreement before that judge. See United States v. Milliron, 984 F.3d
1188, 1192 (6th Cir. 2021) (recognizing that a defendant may waive his right to appeal by means
of a plea agreement); United States v. Ashe, 47 F.3d 770, 775–76 (6th Cir. 1995) (“Any right,
even a constitutional right, may be surrendered in a plea agreement if that waiver was made
knowingly and voluntarily.”).
No. 21-1318 In re United States Page 9
That the court made those comments while plea negotiations were ongoing is crucial.
That is precisely the type of judicial participation most clearly prohibited by Rule 11. See Fed.
R. Crim. P. 11(c)(1). And for good reason. Judicial participation of any kind is “inherently
coercive,” United States v. Ushery, 785 F.3d 210, 219 (6th Cir. 2015) (quotation omitted), and it
is particularly so when the district court cautions the parties to “keep [its position] in mind”
while they negotiate. See Harris, 635 F.2d at 529 (“If the court puts its imprimatur on a plea
offer, the defendant might be coerced into taking it . . . .”). Judicial participation also
undermines fairness and judicial neutrality. Barrett, 982 F.2d at 195–96. Here, the district court
does not meaningfully defend its actions in its appellate brief. But its written opinion rejecting
the plea agreement cites United States v. Rankin, 94 F.3d 645 (6th Cir. 1996) (per curiam), for
the proposition that no judicial participation occurs where the court does not comment on the
defendant’s “case, any aspect of sentencing, or [the defendant’s] possible guilt or innocence.”
We are unpersuaded. There is no indication that our decision in Rankin was meant to provide an
exhaustive list of possible Rule 11 violations.
We considered a similar claim of judicial participation in Ushery, 785 F.3d at 219–21. In
that case, the district court allowed the parties to negotiate a plea agreement in its presence, and
after the court “commented on a proposed plea that [the defendant] had not yet agreed to, . . . the
specific items that the court raised became the focal points . . . of the continued negotiation.” Id.
at 220. We observed that the district court “may” have violated Rule 11(c)(1) but refrained from
deciding the issue because the defendant’s “substantial rights” were not affected. Id. at 218,
220–21. We now make it clear that Rule 11 absolutely prohibits judicial involvement of any
form in plea negotiations, an interpretation that is widely held among circuit courts. Barrett,
982 F.2d at 195; see, e.g., United States v. Baker, 489 F.3d 366, 373 (D.C. Cir. 2007); United
States v. Cano-Varela, 497 F.3d 1122, 1132 (10th Cir. 2007); United States v. Bradley, 455 F.3d
453, 460 (4th Cir. 2006); United States v. Miles, 10 F.3d 1135, 1139 (5th Cir. 1993). In this
context that means that while plea negotiations are ongoing a district court is prohibited from
commenting on a hypothetical plea agreement that it would or would not accept. Other circuit
courts, again, agree. In re Benvin, 791 F.3d at 1103 (granting mandamus and finding that “the
court’s suggestion that the parties add a particular term to the plea agreement constitutes
impermissible involvement”); United States v. Harrell, 751 F.3d 1235, 1239 (11th Cir. 2014)
No. 21-1318 In re United States Page 10
(finding a Rule 11 violation because a court’s pre-plea agreement suggestions are improper
“indications of what the judge will accept” (quotations omitted)); United States v. Pena,
720 F.3d 561, 570–73 (5th Cir. 2013) (finding that a court’s comments on a hypothetical plea
agreement violated Rule 11). Because Rule 11 “means what it says,” Barrett, 982 F.2d at 195,
once a district court has gone beyond its role in accepting or rejecting a finalized plea agreement,
Rule 11 has been violated.
While the district court’s conduct may have been motivated in good faith by its concern
for defendants, there is “no good motives exception” to Rule 11. Ushery, 785 F.3d at 220
(quoting Harrell, 751 F.3d at 1240). Therefore, the district court’s involvement violated Rule
11’s prohibition on judicial participation.
2. Improper Rejection of the Plea Agreement
The United States argues that the district court abused its discretion by rejecting the
parties’ plea agreement. Because we find that the district court did not base its decision on the
circumstances of the case, we agree.
District courts have discretion to accept or reject plea agreements that are governed by
Rule 11(c)(1)(A), such as the one at issue in this case. United States v. Doggart, 947 F.3d 879,
882 (6th Cir. 2020) (“[A] district court is under no obligation to accept a Rule 11(c)(1)(A) plea
deal even if the defendant and the government both agree to it.”); Fed. R. Crim. P. 11(c)(3)(A)
(“[T]he court may accept the [Rule 11(c)(1)(A)] agreement, reject it, or defer a decision until the
court has reviewed the presentence report.”). But a court’s discretion is not unfettered. Cota-
Luna, 891 F.3d at 647; see United States v. Sabit, 797 F. App’x 218, 221 (6th Cir. 2019).
First, the court’s discretion is constrained by separation of powers concerns when it
considers Rule 11(c)(1)(A) agreements, otherwise known as “charge bargains.” A charge
bargain is a type of plea agreement that contemplates the government’s dismissal of charges, or
its assurance to not bring additional charges, in exchange for a defendant’s guilty plea to another,
typically lesser, charge. Fed. R. Crim. P. 11(c)(1)(A); see Doggart, 947 F.3d at 882–83. Unlike
sentencing decisions, charging decisions traditionally fall within the power of the Executive
branch—in this case, the prosecutors. United States v. Miller, 722 F.2d 562, 564–65 (9th Cir.
No. 21-1318 In re United States Page 11
1983). A court considering a charge bargain must, therefore, exercise its discretion with due
regard to prosecutorial prerogatives. Id.; United States v. Vanderwerff, 788 F.3d 1266, 1277
(10th Cir. 2015); United States v. Fokker Servs. B.V., 818 F.3d 733, 745 (D.C. Cir. 2016).
Second, if the court decides to reject a plea agreement, it must explain why. United
States v. Moore, 916 F.2d 1131, 1136 (6th Cir. 1990). And the explanation must be a “sound”
one. Cota-Luna, 891 F.3d at 647 (requiring district courts to exercise “sound judicial discretion”
and “articulate a sound reason” before rejecting a plea agreement (quotations omitted)). What is
considered “sound” will often depend on the case at hand. But generally, a district court may not
act arbitrarily, Moore, 916 F.2d at 1135, invidiously, United States v. Walker, 922 F.3d 239, 249
(4th Cir.), vacated on other grounds, 140 S. Ct. 474 (2019), or pursuant to a categorical policy,
Cota-Luna, 891 F.3d at 651 (Kethledge, J., concurring); Miller, 722 F.2d at 565. Applying these
principles, we have held that a district court may reject a plea agreement when, for example, the
agreement does not adequately reflect the seriousness of the offense, see Doggart, 947 F.3d at
882, unduly cabins the judge’s sentencing discretion, see Sabit, 797 F. App’x at 221, or is
“contrary to the sound administration of justice,” see Moore, 916 F.2d at 1136 (quoting United
States v. Severino, 800 F.2d 42, 46 (2d Cir. 1986)).
Finally, the district court must give every case independent consideration and base its
decision on the specific plea agreement before it. Miller, 722 F.2d at 566; Walker, 922 F.3d at
249–50. The court cannot reject a plea agreement based on abstract or extraneous policy
considerations unrelated to the particular case, because a court which does that abdicates its duty
to exercise any discretion at all. Walker, 922 F.3d at 249 (“[F]ailure to consider the specific
agreement would constitute an abdication—and hence an abuse—of discretion.”); Miller,
722 F.2d at 565 (“[T]he existence of discretion requires its exercise.”); Moore, 916 F.2d at 1136(“The authority to exercise judicial discretion implies the responsibility to consider all relevant
factors and rationally construct a decision.”).
In this case, we cannot ascertain any case-specific reason why the district court rejected
the plea agreement. The district court’s opinion states none, and on appeal, neither the amici nor
the district court point to one. For these reasons, the district court failed to articulate a “sound
reason,” and we conclude that it abused its discretion.
No. 21-1318 In re United States Page 12
The district court’s primary concern was that the plea agreement was “contrary to the
public interest” because it contained appeal waivers that were “overly broad” and the United
States “failed to identify any discernable substantial criminal justice interest” that justified
including these waivers. To the court’s credit, it carefully and thoroughly laid out its qualms
about appeal waivers, specifically, and plea bargaining, generally. The court explained its belief
that appeal waivers “embargo” trial court mistakes, “insulate” the government’s conduct “from
judicial oversight,” effectively “coerce” guilty pleas with offers “too good to refuse,” and
“inhibit[] the development of the Sentencing Guidelines.” But, to reiterate, a district court’s
policy concerns in the abstract are not case-specific exercises of its discretion.
We see no individualized assessment here. For example, the district court repeatedly
expressed concern that the appeal waivers were “broad.” While that is a legitimate
consideration, the court never articulated what would support that finding in this case. The court
merely offered generalized reasons that boil down to policy disagreements with appeal waivers
in general. And those reasons make little sense here where the appeal waivers are not absolute.
The waivers still allowed Townsend to appeal any sentence over the government’s
recommendation, seek relief under the First Step Act, and file ineffective-assistance and
prosecutorial-misconduct claims. It is an abuse of discretion for a court reject a plea agreement
based on a finding that is clearly not in accord with the facts of the case. Cota-Luna, 891 F.3d at
648 (finding an abuse of discretion where the district court rejected a plea agreement based on its
mistaken belief that the agreed-upon sentence was too lenient); see also United States v.
Mandoka, 869 F.3d 448, 452–53 (6th Cir. 2017).
The district court also criticized the government’s legitimate interest in finality, again
citing only global reasons. In doing so, it made no effort to explain why, in this case, added
finality would cause a miscarriage of justice. See United States v. Mathews, 534 F. App’x 418,
424–25 (6th Cir. 2013) (suggesting that an otherwise valid appeal waiver would be
unenforceable if it results in a “miscarriage of justice”). What is particularly troubling is that the
court’s reasoning would seemingly prohibit every plea agreement containing appeal waivers,
regardless of the defendant’s case, the agreement’s charging or sentencing terms, or the parties’
reasons for negotiating those waivers. We cannot credit the district court’s argument that it
No. 21-1318 In re United States Page 13
engaged in an individualized assessment simply because it inserted the phrase “the circumstances
of this case” at various points in its opinion. Without more explanation from the court, such
language is mere surplusage.
The district court also seemed to question whether the waivers were “fully knowing,”
because Townsend could not knowingly waive his right to “seek[] relief based on rights that
have not yet been recognized by the law.” As the United States correctly points out, though, a
defendant can validly waive his rights in a plea agreement even if he does not anticipate future
factual or legal developments in his favor. United States v. Bradley, 400 F.3d 459, 463–64 (6th
Cir. 2005) (“A valid plea agreement, after all, requires knowledge of existing rights, not
clairvoyance.”); Brady v. United States, 397 U.S. 742, 756–57 (1970). Even though the district
court’s reasoning in this regard was mistaken, we find that it was not a principal basis for the
court’s rejection. We do emphasize, however, that a district court’s “misunderstanding of law
does not count as a sound reason for rejecting a guilty plea and thus amounts to an abuse of
discretion.” Doggart, 906 F.3d at 509.
The district court was certainly under no obligation to accept the plea agreement, but
categorical rejections are improper. They may leave criminal defendants such as Townsend
worse off. For example, Townsend’s plea agreement sought to reduce his mandatory minimum
by half, which also would have provided the district court with more discretion at sentencing
than if Townsend were convicted at trial. Hence, under the agreement, the court could have
sentenced Townsend anywhere between 10 years and life, instead of 20 years to life.
The United States argues that the district court cannot consider at all whether charge
bargains contain appeal waivers. It provides two reasons, neither of which has merit. First, the
United States implies that, because appeal waivers are an “enforceable . . . part of the plea-
bargaining process,” their presence in a plea agreement cannot form the basis for a district
court’s rejection. That is simply not true. That appeal waivers are enforceable does not mean
that district courts lack the discretion to scrutinize them when deciding whether to accept a plea
agreement. In the same way, it also does not mean that district courts necessarily abuse their
discretion when they reject what they reasonably perceive as an overly broad appeal waiver. See
United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992).
No. 21-1318 In re United States Page 14
Second, the United States argues that the district court’s authority to accept or reject a
charge bargain is limited to two considerations: first, whether the remaining charges adequately
reflect a defendant’s criminal conduct, and second, whether they unduly restrict the court’s
sentencing discretion. In the United States’s view, the structure of Rule 11 indicates that the
district court’s decision must always relate to its sentencing power in some way. While it is true
that the Judiciary wields significant power over criminal sentencing and has no authority over the
Executive branch’s charging decisions, those separation of powers concerns are best addressed
on a case-by-case basis, not with a bright-line rule. So long as the district court’s assessment is
soundly based on the circumstances of the case and does not frustrate prosecutorial
independence, we generally do not otherwise limit what the district court may consider. See
United States v. Skidmore, 998 F.2d 372, 376 (6th Cir. 1993) (analyzing a charge bargain and
noting that “Rule 11 does not limit the reasons for which the district court may reject a proposed
plea agreement”); United States v. Yates, 698 F.2d 828, 829–30 (6th Cir. 1983) (per curiam)
(“Acceptance or rejection of a plea agreement is the prerogative . . . of the district court.”).
Therefore, a court may consider the propriety of every term in a proposed plea agreement—
including terms such as sentencing-appeal and collateral-review waivers.
In support of its argument, the United States cites United States v. Vanderwerff,
788 F.3d 1266 (10th Cir. 2015). In Vanderwerff, the Tenth Circuit held that the district court
abused its discretion in rejecting a plea agreement because the agreement included appeal
waivers. Id. at 1271. That case, however, is distinguishable and provides little guidance. The
district court’s rejection in Vanderwerff was predicated on legally irrelevant sentencing factors
and a “grievous[] misread[ing]” of two Supreme Court cases. Id. at 1272–76. We have no
similar “error[s] of law” here. See id. at 1272–73. Moreover, although the district court here
surely criticizes plea bargaining, it does not mistakenly suggest that plea bargaining is “of
dubious legality” as the court did in Vanderwerff. Id. at 1276.
To summarize, a district court does not possess unrestrained discretion to reject a plea
agreement. It must, among other things, make an individualized assessment of the agreement
and predicate its decision on the specific facts and circumstances presented. Because the district
court here failed to do that, this is the narrow circumstance in which the district court abused its
No. 21-1318 In re United States Page 15
discretion. Accordingly, the United States has a clear and indisputable right to mandamus on
this ground.
C. Mandamus is Appropriate.
Mandamus relief, though extraordinary, is appropriate under the circumstances. Such
relief is reserved “for ‘questions of unusual importance necessary to the economical and efficient
administration of justice’ or ‘important issues of first impression.’” John B. v. Goetz,
531 F.3d 448, 457 (6th Cir. 2008) (quoting In re Perrigo Co., 128 F.3d 430, 435 (6th Cir. 1997)).
A district court’s “oft-repeated error” or “persistent disregard of the federal rules” also weighs in
favor of mandamus. Id. This case presents these circumstances. First, whether a judge may
comment on hypothetical plea agreements that it would or would not accept under Rule 11 is an
issue of first impression in this circuit. It is also the first time that we have found it to be an
abuse of discretion for a district court to reject a plea agreement without citing case-specific
reasons. Second, this case involves important questions regarding plea agreement procedure and
judicial involvement in pleas, both of which bear on the “efficient administration of justice.” See
id. (quotation omitted). And as stated earlier, those questions might evade review if not
considered at this time. Finally, there is evidence that this district court has had a long-standing
and frequent practice of rejecting plea agreements containing appeal waivers, and of stating that
practice to parties. Given that the United States apparently has its own blanket policy—of
including these waivers in every plea agreement—this issue will almost certainly appear again.
Considering the novel, important, and likely reoccurring questions presented in this petition,
mandamus relief is appropriate.
There is one final aspect of this case worth mentioning: the specific writ requested would
remedy only one of the two underlying injuries. It is a well-settled principle that any relief
sought from a court must, at a minimum, redress a party’s alleged harm. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992). A writ directing the district court judge to reconsider the
plea bargain would of course redress the injury caused by the judge’s prior abuse of discretion,
but it would not redress any injury caused by the judge’s Rule 11 violation. Instead of asking for
a judicial reassignment so that the parties may freely engage in plea discussions, or for an order
preemptively stopping improper judicial participation, the United States chose to request only
No. 21-1318 In re United States Page 16
that the same plea agreement be reconsidered by the same district court that rejected it the first
time. C.f. Barrett, 982 F.2d at 196 (assigning the case to a new judge on remand “[t]o cure th[e]
improper judicial participation in the plea bargaining process”); United States v. Werker, 535
F.2d 198, 205 (2d Cir. 1976) (issuing a writ of mandamus ordering the district court to refrain
from participating in plea discussions before such participation occurred). A court’s
reconsideration would not grant the United States any relief from the court’s pretrial comments.
Nevertheless, because the writ properly remedies the district court’s improper rejection of
the plea agreement, issuance of the writ is warranted on that basis.
III.
For the foregoing reasons, we GRANT the United States’s petition for a writ of
mandamus. We REMAND this case to the district court for further proceedings consistent with
this opinion.