IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50956
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JANET DEES,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
October 1, 1997
Before KING, HIGGINBOTHAM, and DUHÉ, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Janet Dees pled guilty to a bank fraud charge and now appeals
her sentence. By our own motion, we raise but ultimately reject a
jurisdictional challenge to Dees’s conviction based on the fact
that a magistrate judge conducted her plea proceeding. We dismiss
Dees’s appeal on the issue that she does press, a miscalculation of
her sentence, because Dees in her plea agreement waived her right
to an appeal.
I.
Dees participated in a scheme to fraudulently obtain bank
loans for the financing of mobile-home sales. The government filed
a single count information against Dees, charging her with
conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1344.
Dees decided to plead guilty. She entered into a plea
agreement on August 19, 1994, in which she agreed to waive her
right to appeal whatever sentence the district court imposed on
her. She also consented to have a magistrate judge take her plea.
On August 22, 1994, a federal magistrate judge conducted a plea
proceeding pursuant to Rule 11 of the Federal Rules of Criminal
Procedure. The magistrate judge performed the standard allocution,
probing Dees to ascertain whether her plea was knowing and
voluntary. Dees confirmed to the magistrate judge that she
understood the plea agreement and appreciated its consequences,
particularly the waiver of appeal. Satisfied with Dees’s responses,
the magistrate judge recommended to the district court that it
accept her plea. After doing so, the district court sentenced Dees
to fifteen months in prison.
Dees then brought this appeal, arguing that the district court
erred in sentencing her on the basis of the entire loss
attributable to the four-year-long conspiracy. She contends instead
that she should be sentenced only for the losses that accrued
during the eighteen-month period in which she actively participated
in the scheme.
II.
Dees does not challenge the magistrate judge’s authority to
conduct her plea allocution. Because our court has the independent
duty to determine whether jurisdiction lies in a case, however, we
may consider jurisdictional issues by our own motion. See United
States v. Mendoza, 491 F.2d 534, 536 (5th Cir. 1974). If the
2
magistrate judge did not have the authority to entertain Dees’s
plea, then neither her plea, her waiver of appeal, nor her sentence
are valid.
Case law on the issue of magistrate judges’ taking of guilty
pleas is not well-developed. Only the Second, see United States v.
Williams, 23 F.3d 629 (2d Cir.), cert. denied, 513 U.S. 1045, 115
S. Ct. 641, 130 L. Ed. 2d 547 (1994), and Tenth Circuits, see
United States v. Ciapponi, 77 F.3d 1247 (10th Cir.), cert. denied,
— U.S. —, 116 S. Ct. 1839, 134 L. Ed. 2d 942 (1996), have addressed
the problem directly.1 Yet judges have long expressed reservations
about the practice. In 1991, the Judicial Conference’s Committee on
the Administration of the Magistrate Judges System rejected a
proposal to endorse magistrate judges’ taking of guilty pleas:
The Committee expressed a strong view that judicial duties in
critical stages of a felony trial, particularly the acceptance
of guilty pleas and conducting sentencing proceedings, as well
as presiding over the felony trial itself, are fundamental
elements of the authority of district judges under Article III
of the Constitution. These duties thus should not be delegated
to magistrate judges as a matter of policy, regardless of
whether the parties consent to the delegation.
Magistrate Judges Division of the Administrative Office of the
United States Courts, A Constitutional Analysis of Magistrate Judge
Authority, 150 F.R.D. 247, 306 (1993). The Judicial Conference took
the same position in a 1981 report to Congress, reasoning that “it
is preferable for the judge who is later to pronounce judgment and
1
In addition, one district court has published a lengthy
opinion on the subject. See United States v. Khan, 774 F. Supp. 748
(E.D.N.Y. 1991). Furthermore, our own circuit has ruled on a
similar procedure. See United States v. Rojas, 898 F.2d 40 (5th
Cir. 1990) (permitting magistrate judges to hold evidentiary
hearings regarding the voluntariness of a defendant’s plea).
3
determine the sentence to conduct the [plea] proceeding.” Judicial
Conference of the United States, The Federal Magistrate System:
Report to the Congress by the Judicial Conference of the United
States 52 (1981). The prevalence of this practice in our circuit
and the serious constitutional questions that it raises warrants a
discussion of its propriety from our court.
Determining whether a judicial duty is properly delegable to
a magistrate requires a two-step analysis. First, we must ask
whether Congress, in passing legislation governing magistrate
judges, intended for them to perform the duty in question. Second,
we must consider whether the delegation of the duty to a magistrate
judge offends the principles of Article III of the Constitution. We
turn first to the statutory question.
A.
The statutory authority of a magistrate judge is set out in 28
U.S.C. § 636 (The Magistrates Act). Among other things, the Act
provides:
(b)(1) Notwithstanding any provision of law to the contrary —
(A) a judge may designate a magistrate to hear and
determine any pretrial matter pending before the court,
except a motion . . . to dismiss or quash an indictment
or information made by the defendant, [or] to suppress
evidence in a criminal case . . . . A judge of the court
may reconsider any pretrial matter under this
subparagraph (A) where it has been shown that the
magistrate’s order is clearly erroneous or contrary to
law.
(B) a judge may also designate a magistrate to conduct
hearings, including evidentiary hearings, and to submit
to a judge of the court proposed findings of fact and
recommendations for the disposition, by a judge of the
court, of any motion excepted in subparagraph (A). . . .
4
28 U.S.C. § 636(b)(1)(A)-(B). Apart from this express assignment of
duties, the Act further states that “[a] magistrate may be assigned
such additional duties as are not inconsistent with the
Constitution and laws of the United States.” 28 U.S.C. §
636(b)(3).2
The Supreme Court construed the statutory bases of magisterial
authority in criminal matters in two recent decisions, United
States v. Peretz, 501 U.S. 923, 111 S. Ct. 2661, 115 L. Ed. 2d 808
(1991), and Gomez v. United States, 490 U.S. 898, 109 S. Ct. 2237,
104 L. Ed. 2d 923 (1989). In both cases, the Court considered
whether Congress intended for magistrate judges to have the power
to conduct voir dire. In Gomez, the Court held that the Magistrates
Act did not confer upon magistrate judges the unlimited authority
to oversee voir dire. Gomez, 490 U.S. at 873-76, 109 S. Ct. at
2247-48. Peretz, however, clarified and narrowed the Gomez holding
by reading the Magistrates Act to permit magistrate judges to
conduct voir dire with the parties’ consent. Peretz, 501 U.S. at
927-28, 111 S. Ct. at 2664.
Although Peretz and Gomez did not consider the statutory
authority of magistrate judges to take guilty pleas, the few lower
courts that have examined this issue have looked to these two cases
for guidance. Because the Magistrates Act does not expressly
authorize magistrate judges to conduct plea proceedings, see 28
U.S.C. § 636(b)(1)(A)-(B), these courts have focused on the
2
Although, by virtue of § 636(b)(3), constitutional and
statutory inquiries into magisterial authority necessarily cover
much the same ground, we consider the two issues separately.
5
authority of magistrate judges to do so under the “additional
duties” clause of the Act, see 26 U.S.C. § 6363(b)(3) (“A
magistrate may be assigned such additional duties as are not
inconsistent with the Constitution and laws of the United
States.”).3 As the Supreme Court noted in Peretz, a magisterial
duty is a proper “additional duty” under the clause if it bears
some relationship to the duties that the Act expressly assigns to
magistrate judges. Peretz, 501 U.S. at 930-31, 111 S. Ct. at 2666;
see also Gomez, 490 U.S. at 864, 109 S. Ct. at 2241.
Using the Peretz “additional duties” test, other courts have
found that plea allocutions do not differ markedly from other
duties performed by magistrate judges and hence are assignable to
them under the Act. In United States v. Williams, the Second
Circuit reasoned that
[a]n allocution is an ordinary garden variety type of
ministerial function that magistrate judges commonly perform
on a regular basis. The catechism administered to a defendant
is now a standard one, dictated in large measure by the
comprehensive provisions of Rule 11 . . . . Further,
3
An alternative statutory approach to the problem was
suggested, but not relied upon, by a district court in United
States v. Khan, 774 F. Supp. 748 (E.D.N.Y. 1991). Khan theorized
that the acceptance of a guilty plea may fit within § 636(b)(1)(A),
which permits magistrate judges to hear and dispose of certain
pretrial matters. To the Khan court, a guilty plea is “a shorthand
way of describing a motion by a defendant to be permitted to plead
guilty.” Id. at 752. Because § 636(b)(1)(A)’s list of motions upon
which magistrate judges may not rule does not include guilty pleas,
the Act must therefore permit magistrate judges to hear them. Id.
Nevertheless, Khan hesitated to place plea agreements under §
636(b)(1)(A), as it reasoned that a guilty plea is effectively a
dispositive motion, deserving of a higher level of scrutiny from
the district court than the “clearly erroneous” standard provided
for in the section. Id. Accordingly, the Khan court instead upheld
this delegation to magistrate judges under the “additional duties”
clause. We agree with this reasoning.
6
administering an allocution is less complex than a number of
duties the Magistrates Act specifically authorizes magistrates
to perform.
Williams, 23 F.3d at 632. Even if the taking of guilty pleas goes
beyond the typical range of duties assigned to magistrate judges by
the Act, the Williams court held that a defendant’s consent to the
magistrate judge’s actions makes the delegation permissible. Id. at
633. Finally, the court found nothing in the legislative history of
the Magistrates Act to indicate that Congress did not wish
magistrate judges to conduct plea proceedings; rather, this
delegation advanced the congressional goal of relieving the heavy
caseload pressures on district courts. See id. at 633, 634. Relying
upon similar reasoning, the Tenth Circuit has also found statutory
authority for magistrate judges to conduct plea proceedings. See
Ciapponi, 77 F.3d 1247.
Our circuit has not previously addressed the precise issue of
a magistrate judge’s statutory power to take a guilty plea. In
United States v. Rojas, 898 F.2d 40 (5th Cir. 1990), however, we
considered a closely analogous situation. On the morning of his
trial, Rojas pled guilty to the district court on a drug charge.
Later, however, at his sentencing, Rojas asked to withdraw his
guilty plea, claiming that his attorney was not assisting him in
his defense. The district court doubted this allegation, but
nevertheless referred the matter to a magistrate judge to hold a
hearing to gather evidence about whether his plea had been knowing
and voluntary. Id. at 41. On appeal, Rojas challenged this referral
under the Magistrates Act.
7
We found the hearing to be a pretrial duty that magistrate
judges were expressly authorized to conduct under § 636(b)(1). Id.
at 42. We reasoned that, even if Congress did not anticipate this
particular type of delegation, in the end the magistrate judge was
only making a recommendation to the district court concerning the
plea. Because the district court retained full authority to review
and reject the magistrate judge’s recommendation, the delegation
did not exceed the scope of magisterial authority contemplated by
the Act. Id.
Because we believe plea allocutions differ fundamentally from
the various matters expressly assigned to magistrate judges by §
636(b)(1), we follow the other courts that have taken up the issue
and analyze them instead under the “additional duties” clause of §
636(b)(3). Even though Rojas only concerned § 636(b)(1), its
reasoning still instructs our analysis in this case. As the Supreme
Court noted in Peretz, an additional magisterial duty is proper
under § 636(b)(3) if it bears some relationship to a duty that the
Magistrates Act expressly assigns to magistrate judges. Peretz, 501
U.S. at 930-31, 111 S. Ct. at 2666. In Rojas, we found that
evidentiary proceedings to determine the voluntariness of a plea
fall within the Act’s explicit assignment of duties. Thus, if a
plea allocution is substantially similar to the Rojas procedure, it
is a permissible additional duty for magistrate judges under §
636(b)(3) and Peretz.
We find that plea proceedings bear a close relationship to the
evidentiary hearing we considered in Rojas. First, district courts
8
have the same authority to review a magistrate judge’s performance
of both tasks. A district court has the power to review de novo a
magistrate’s taking of a guilty plea, and it can reject the plea if
it finds a problem in the allocution. Likewise, in upholding the
delegation in Rojas, we stressed the importance of a district
court’s unfettered authority to review a magistrate judge’s
recommendation regarding the voluntariness of a plea. Rojas, 898
F.2d at 42. Second, the procedure that we found delegable to
magistrate judges in Rojas scarcely differs from the plea
proceeding before us today. In both cases, the magistrate judge’s
task is essentially the same: to determine whether a plea had been
entered knowingly and voluntarily. In fact, if anything, the
delegation of power to a magistrate judge in Rojas was more
substantial than the delegation here. In Rojas, a magistrate judge
was asked to obtain evidence to resolve a dispute over a plea.
Here, the magistrate judge performed much more of a ministerial
function, as this plea proceeding, like most others, was
uncontested.
Indeed, because of the similarity between the Rojas procedure
and plea proceedings, a district court in another circuit relied
extensively upon Rojas in reaching its conclusion that the taking
of a guilty plea is a permissible “additional duty” for a
magistrate judge under § 636(b)(3). See United States v. Khan, 774
F. Supp. 748, 752-53 (E.D.N.Y. 1991). We agree and find that the
magistrate judge had the statutory authority to take Dees’s plea.
B.
9
Having concluded that the taking of a plea is a proper
“additional duty” for magistrate judges under the Magistrates Act,
we must next determine whether the practice comports with Article
III of the Constitution.
The Supreme Court in Peretz laid out the constitutional
analysis for considering the Article III constraints on magisterial
authority. According to Peretz, the protections of Article III fall
into two categories. First, Article III confers upon defendants a
personal right to have their case heard by an Article III judge.
Like most other personal rights of criminal defendants, this right
is subject to waiver. See Peretz, 501 U.S. at 936-37, 111 S. Ct. at
2669. On the other hand, Article III also contains certain
structural guarantees which ensure respect for separation-of-powers
principles. See id.; see also Commodity Futures Trading Comm’n v.
Schor, 478 U.S. 833, 848, 106 S. Ct. 3245, 3255, 92 L. Ed. 2d 675
(1986) (“Article III, § 1, serves . . . to protect ‘the role of the
independent judiciary within the constitutional scheme of
tripartite government,’ . . . .”) (quoting Thomas v. Union Carbide
Agric. Prods., Co., 473 U.S. 568, 583, 105 S. Ct. 3325, 3334, 87 L.
Ed. 2d 409 (1985)). The Peretz Court implied that Article III’s
structural protections may not be waived. See Peretz, 501 U.S. at
937, 111 S. Ct. at 2669; see also Schor, 478 U.S. at 850-51, 106 S.
Ct. at 3256-57 (“To the extent that [the] structural principle is
implicated in a given case, the parties cannot by consent cure the
constitutional difficulty for the same reason that the parties by
10
consent cannot confer on federal courts subject-matter jurisdiction
beyond the limitations imposed by Article III, § 2.”).
Because Dees consented to the use of a magistrate judge in her
case, thereby waiving any personal right she may have had to have
her guilty plea taken by an Article III judge, we must determine
only whether the delegation here offended the structural principles
of Article III, which are not subject to waiver. Although we have
concerns about the performance of such an important duty by non-
Article III judges, our reading of the Supreme Court’s
interpretation of the structural guarantees of Article III leads us
to conclude that no such guarantees are implicated here.4
The precise contours of Article III are not sharply defined.
See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458
U.S. 50, 91, 102 S. Ct. 2858, 2882, 73 L. Ed. 2d 598 (1982)
(Rehnquist, J., concurring) (indicating that one might view the
Court’s Article III jurisprudence as “but landmarks on a judicial
‘darkling plain’ where ignorant armies have clashed by night”). One
principle, however, has guided much of our previous Article III
analysis: We doubt that Article III will permit a non-Article III
judge to preside over a felony trial. See United States v. Ford,
824 F.2d 1430, 1435 (5th Cir. 1987) (en banc), cert. denied, 484
4
Our decision is grounded in constitutional analysis.
Nevertheless, we are mindful of the important policy considerations
surrounding this question. According to the Khan court, in the
Eastern District of New York, plea proceedings take between twenty
and forty-five minutes per defendant. Khan, 774 F. Supp. at 749.
Delegating plea proceedings to magistrate judges can thus save
district courts countless hours, which they might then apply to
more weighty Article III matters.
11
U.S. 1034, 108 S. Ct. 741, 98 L. Ed. 2d 776 (1988); cf. In re Clay,
35 F.3d 190, 193 (5th Cir. 1994) (discussing importance of jury
trials to Article III power).5 Felony trials are complex affairs,
requiring close oversight of delicate constitutional rights.
Although a district court’s ability to review a magistrate judge’s
actions saves many delegations from Article III problems, a
district court cannot adequately review an entire felony trial. See
Clay, 35 F.3d at 193-94. Even if such oversight were possible,
double jeopardy principles might prevent retrials to correct
magisterial mistakes in favor of defendants. Furthermore, in felony
trials the federal government seeks to vindicate important national
policies on a public stage. Irreparable harm would be done to the
authority of the federal judiciary were such fundamental
proceedings delegated to non-Article III tribunals. By giving away
their critical criminal jurisdiction, federal judges would risk
devitalizing their own coordinate branch of government, thereby
upsetting our constitutional balance of power.6 Thus, our
5
Congress avoided this problem in enacting the Magistrates Act
by withholding from magistrate judges the authority to preside over
felony trials. See Gomez, 490 U.S. at 872, 109 S. Ct. at 2246
(analyzing Magistrates Act and concluding that “[t]he carefully
defined grant of authority [to magistrates] to conduct trials of
civil matters and of minor criminal cases should be construed as an
implicit withholding of the authority to preside at a felony
trial”).
6
The “slippery slope” scenario here is easy to envision.
District courts might begin by delegating small felony trials to
magistrate judges. Meeting with some initial success, the pressure
of their crushing caseloads would weaken their resolve and cause
district courts to delegate even more felony trials to magistrate
judges. Eventually, Congress would notice the trend. When asked to
authorize new judgeships, or simply confirm new candidates to fill
vacant ones, Congress would instead seek to increase the number of
12
constitutional concerns about magisterial authority will grow as
magistrate judges move closer to presiding over trials.
As an initial matter, therefore, we should consider the extent
to which the delegation of a plea allocution to a magistrate judge
encroaches upon a district court’s exclusive felony trial domain.
In this regard, voir dire is a helpful analytic tool. We have
previously recognized that voir dire is an “integral component” of
a criminal trial. Ford, 824 F.2d at 1438. The Supreme Court has
agreed, labeling voir dire a “critical stage of the criminal
proceeding.” Gomez, 490 U.S. at 873, 109 S. Ct. at 2237; see also
Swain v. Alabama, 380 U.S. 202, 218, 85 S. Ct. 824, 835, 13 L. Ed.
2d 759 (1965) (implying voir dire is a “necessary part of trial by
jury”), overruled by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
1712, 96 L. Ed. 2d 69 (1986). Yet, important as voir dire is to a
criminal trial, the Supreme Court has held that the consensual
delegation of it to a magistrate judge does not implicate the
structural guarantees of Article III. See Peretz, 501 U.S. at 937,
111 S. Ct. at 2669. Because a district court retains the ultimate
decision about whether to empanel the jury selected under the
magistrate judge’s supervision, the Supreme Court has reasoned that
the assignment of voir dire to magistrate judges does not undermine
magistrate judges. With their lower salaries, magistrate judges
would be more cost-effective than Article III judges, and, lacking
life tenure, more politically servient as well. As the number of
magistrate judges grew and the ranks of Article III judges thinned,
district judges would become nothing more than judicial
administrators, overseeing an army of magistrate judges. Our
tripartite scheme of government would suffer. See Patrick E.
Higginbotham, Bureaucracy—The Carcinoma of the Federal Judiciary,
31 Ala. L. Rev. 261, 265-66 (1980).
13
the fundamental authority of Article III judges. See id. 501 U.S.
at 937, 111 S. Ct. at 2669-70.
Measured against the benchmark of voir dire, the taking of a
guilty plea by a magistrate judge does not threaten the exclusive
Article III power of a district court to preside over a felony
trial. Plea proceedings are far more ministerial in nature than is
voir dire. When defendants plead guilty, they are led through a
series of standardized questions, most of which are dictated by
Rule 11 of the Federal Rules of Criminal Procedure. Typically, the
prosecution will not contest a plea allocution. Voir dire, on the
other hand, is a delicate process whose outcome can be critical to
the eventual trial. Voir dire influences the makeup of the jury
that will ultimately decide the case, and during voir dire jurors
get their first impression of the issues and parties that will be
involved in the trial. Although a successfully completed plea
proceedings may preclude an Article III court from holding a felony
trial, it is not an essential component of the actual trial itself,
like voir dire. If magistrate judges can oversee voir dire without
interfering with the exclusive trial domain of Article III judges,
so too must they be able to conduct plea proceedings.
Although we are satisfied that the assignment of plea
proceedings to magistrate judges does not encroach upon the trial
jurisdiction of Article III judges, there are other ways that
magisterial power can violate the structural guarantees of Article
III. Most notably, Article III judges cannot delegate to magistrate
judges final authority over some important issue in a case, as only
14
Article III judges, not their adjuncts, have the power to dispose
of cases or controversies. For this reason, the Supreme Court has
stressed that the reviewability of a magistrate judge’s actions is
a critical factor in considering the propriety of an Article III
judge’s delegation of authority to a magistrate judge. See Peretz,
501 U.S. at 937-39; 111 S. Ct. at 2669-71. Even if a
“‘controversial matter might be delegated to a magistrate,’” so
long as the district court has the power to review the magistrate
judge’s actions, there is no “‘threat to the judicial power or the
independence of judicial decisionmaking that underlies Article
III.’” Peretz, 501 U.S. at 938, 111 S. Ct. at 2670 (quoting United
States v. Raddatz, 447 U.S. 667, 685-86, 100 S. Ct. 2406, 2417-18,
65 L. Ed. 2d 424 (1980) (Blackmun, J., concurring)). Only when a
magistrate judge possesses final decisionmaking authority over a
substantial issue in a case does an Article III problem arise. See
Raddatz, 447 U.S. at 683, 100 S. Ct. at 2416.
We find that plea proceedings conducted by magistrate judges
are sufficiently reviewable so as not to threaten Article III’s
structural guarantees. The taking of a plea by a magistrate judge
does not bind the district court to accept that plea. Rather, the
district court retains ultimate control over the plea proceedings,
which are submitted to the court for its approval. Williams, 23
F.3d at 634. Moreover, district courts review plea proceedings on
a de novo basis, contributing to the ministerial nature of the
15
magistrate’s task.7 See In re Texas Gen. Petroleum Corp., 52 F.3d
1330, 1337 (5th Cir. 1995) (“De novo review over an adjunct’s
ruling is crucial to maintaining Article III control over an
adjunct.”).
Again, voir dire is a useful standard against which to measure
the taking of a guilty plea. As our circuit has previously
suggested, de novo review of voir dire proceedings confers upon the
parties only an illusory protection, as a district court cannot
accurately assess the manner of a potential juror’s testimony on
the basis of a cold, written record. See Ford, 824 F.2d at 1437.
Moreover, it is doubtful whether a district court can effectively
repeat voir dire after the magistrate judge’s first, failed
attempt. See id. At one point, the Supreme Court seemed to agree
with our sentiments. See Gomez, 490 U.S. at 874, 109 S. Ct. at 2247
(“[W]e harbor serious doubts that a district judge could review
[voir dire] meaningfully.”). Yet in Peretz, the Court later held
that because a district court retains the ultimate decision over
whether to empanel a jury selected under a magistrate’s watch, voir
dire is sufficiently reviewable to allow it to be assigned to
magistrate judges without damage to Article III’s structural
guarantees. Peretz, 501 U.S. at 937, 111 S. Ct. at 2669-70.
If voir dire is a sufficiently reviewable procedure to permit
its delegation to a magistrate judge, so too must be a plea
7
Even though the Magistrates Act does not expressly provide
for de novo review of plea proceedings, the only constitutional
requirement is that it be available if the parties so request. See
Ciapponi, 77 F.3d at 1251 (citing Peretz, 501 U.S. at 939, 111 S.
Ct. at 2670).
16
proceeding. A district court’s review of voir dire is distant and
faceless and may require it to scrutinize the testimony of dozens
of potential jurors. Moreover, the reviewing court does not have
the realistic option of conducting a second voir dire on its own.
To review a plea allocution, on the other hand, a district court
need only look into the testimony of a single individual, asked a
series of standardized, non-confrontational questions. If the court
is troubled by some response given by the defendant, it can easily
perform another allocution of its own to clear up the problem. As
we noted in Rojas, “[a]n incorrect recommendation [following an
evidentiary hearing about the voluntariness of a plea], as opposed
to a poorly supervised voir dire, can easily be corrected by the
district judge’s rejecting the magistrate’s recommendation and even
holding a second evidentiary hearing if necessary.” Rojas, 898 F.2d
at 42. The same principle applies to plea proceedings themselves.
Accordingly, every court that has considered the issue has
concluded that plea proceedings conducted by magistrate judges do
not violate Article III’s structural guarantees because they are
fully reviewable by district courts. See Ciapponi, 77 F.3d at 1251;
Williams, 23 F.3d at 634; Khan, 774 F. Supp. at 754-55. We agree
with these courts. Although the taking of a plea can be a critical
function which in a perfect world might best be left to an Article
III judge, plea proceedings are no more crucial to the spirit of
Article III than is voir dire, which the Supreme Court has held may
be delegated to magistrate judges with the consent of the parties.
17
Therefore, the right to have an Article III judge preside over
a plea proceeding is personal, not structural. Should a defendant
waive that personal right, Article III permits delegation of plea
allocutions from the district court to a magistrate judge. Hence,
in taking a plea with the consent of the parties, a magistrate
judge cannot “emasculat[e] constitutional courts.” National Ins.
Co. v. Tidewater Co., 337 U.S. 582, 644, 69 S. Ct. 1173, 1209, 93
L. Ed. 1556 (1949).
III.
Having disposed of this jurisdictional matter, we now turn to
the issue that Dees herself raises on appeal. Dees challenges the
district court’s calculation of her sentence under the Sentencing
Guidelines. She contends that her sentence should be based on the
amount of loss that accrued during the period in which she was
actively involved with the conspiracy to defraud banks. The
district court, however, calculated her sentence based upon the
entire loss that accumulated during the life of the scheme.
As part of her plea agreement, Dees agreed not to appeal her
sentence on any grounds. Dees now argues that this waiver of her
right to an appeal was not informed and voluntary, as she had no
idea that the district court would hold her accountable for the
entire amount of loss. Dees was, however, informed of the maximum
term of imprisonment to which she could be sentenced, and her
actual sentence fell within that range. Accordingly, her plea was
informed and voluntary. United States v. Abreo, 30 F.3d 29, 32 (5th
Cir.), cert. denied, 513 U.S. 1064, 115 S. Ct. 681, 130 L. Ed. 2d
18
613 (1994); United States v. Santa Lucia, 991 F.2d 179, 180 (5th
Cir. 1993). So long as a plea is informed and voluntary, we will
enforce a waiver of appeal. United States v. Melancon, 972 F.2d 566
(5th Cir. 1992). Thus, we will not entertain Dees’s appeal.
IV.
For the foregoing reasons, we DISMISS this APPEAL.
19