In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3509
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEMILOUS E. KELLY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 316-2—Suzanne B. Conlon, Judge.
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ARGUED OCTOBER 2, 2002—DECIDED DECEMBER 5, 2002
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Before BAUER, EASTERBROOK, and ROVNER, Circuit
Judges.
BAUER, Circuit Judge. Demilous Kelly challenges the
district court’s refusal to accept his midtrial guilty pleas on
two counts of distribution of crack. See 21 U.S.C. § 841(a).
As a result of the refusal, Kelly’s case went to a jury, which
ultimately found him guilty on the distribution counts as
well as one count of conspiring to distribute crack. See 21
U.S.C. § 846. We affirm Kelly’s convictions because the re-
jection of the guilty pleas did not amount to an abuse of
discretion.
After being charged with one count of conspiring to dis-
tribute crack and three counts of distributing crack, Kelly
2 No. 01-3509
on four occasions appeared before the district court to plead
guilty to the conspiracy count in accordance with a plea
agreement reached with the government. Each attempt
failed because Kelly refused to admit guilt or expressed
doubts about pleading guilty because he disagreed with the
government’s conspiracy allegations. At the end of the first
day of trial, the judge suggested that guilty pleas to the
distribution counts might be less “problematic” because
Kelly had admitted to that conduct all along. Accordingly,
the parties renegotiated the plea agreement, and the dis-
trict court dismissed one distribution count on the govern-
ment’s motion.
It is unclear how much time Kelly spent with counsel
after the renegotiation of the plea agreement. Kelly was
returned to jail while his counsel discussed the new agree-
ment with the government, and he was brought to court
early the following morning at the judge’s request. That
morning Kelly agreed to plead guilty to the distribution
counts, but advised that he had not been given enough time
to speak with his attorney:
THE COURT: [T]here certainly is an evidentiary basis
for a guilty plea on Counts 3 and 4, in my
opinion.
But I want to make sure that that is
agreeable to you, Mr. Kelly, with respect
to Counts 3 and 4 that charge you with
actually delivering cocaine to the under-
cover agent on two occasions that we
saw yesterday in the videotape. Are you
agreeable to pleading guilty to those
counts?
DEFENDANT: Yes.
THE COURT: Let me go through them specifically with
you. . . . Have you actually read those two
counts?
No. 01-3509 3
DEFENDANT: No.
THE COURT: You have not? Mr. Greene [defense coun-
sel], have you gone through the allega-
tions in Counts 3 and 4 with Mr. Kelly?
MR. GREENE: I certainly have, Judge, numerous times,
the whole indictment.
THE COURT: All right, we just need to focus on Counts
3 and 4 at this point.
In your professional judgment, Mr.
Greene, does Mr. Kelly understand the
allegations made against him in Counts
3 and 4?
MR. GREENE: He certainly understands them, Judge,
that’s correct.
THE COURT: Now, Mr. Kelly, do you feel that you’ve
had enough time to discuss your decision
to plead guilty with Mr. Greene?
DEFENDANT: Ah . . .
THE COURT: I’m sorry, I can’t hear you.
DEFENDANT: Not really. To be honest with you, no.
THE COURT: Okay. Well, I have a motion call at 9:00
o’clock. So you can discuss this further in
the lockup.
After the judge conducted the motion call, she brought the
jury into the courtroom and continued with Kelly’s trial.
Aware of the jury’s presence, defense counsel offered a
veiled reminder of the guilty pleas: “We had a conversation
earlier, I would like to maybe continue that.” The judge did
not respond.
The only further evidence that the prosecution offered
that morning before resting was one stipulation and two
4 No. 01-3509
exhibits. The judge then removed the jury from the court-
room and explained that she was rejecting Kelly’s guilty
pleas:
THE COURT: I’m at a loss. I mean, I’ve made myself
available and my staff available and kept
others waiting significant periods of time
to take a plea. And at this juncture the
government has rested. I’m going to ask
whether or not you wish to put on a case
and whether or not your client wishes to
testify.
MR. GREENE: Does that mean you won’t give him an
opportunity to plead guilty in this case,
Judge?
THE COURT: I think I’ve given him lots of opportuni-
ties, Mr. Greene.
MR. GREENE: Judge, he wants to plead guilty. Could
you ask him one more time, Judge?
THE COURT: It’s not a matter of just pleading guilty,
Mr. Greene.
Do you wish to put on a defense?
MR. GREENE: Is that a no, then, Judge?
THE COURT: It’s a no.
After the judge refused to allow Kelly to plead guilty, de-
fense counsel rested, and the jury found Kelly guilty on all
charges. The judge later sentenced Kelly to 211 months’
imprisonment to be followed by 5 years of supervised
release.
Kelly offers two arguments on appeal. First, he contends
that the district court abused its discretion in rejecting his
guilty pleas on the distribution counts. Second, Kelly argues
that the district court violated his Sixth Amendment right
No. 01-3509 5
to counsel by refusing to resume the guilty plea proceeding
after he spoke with counsel.
A defendant has no absolute right to have a court accept
his guilty plea, and a court “may reject a plea in [the] ex-
ercise of sound judicial discretion.” Santobello v. New York,
404 U.S. 257, 262 (1971); United States v. Greener, 979 F.2d
517, 519 (7th Cir. 1992). Nevertheless, a court cannot act
arbitrarily in rejecting a plea, United States v. Kraus, 137
F.3d 447, 453 (7th Cir. 1998); accord United States v.
Maddox, 48 F.3d 555, 558 (D.C. Cir. 1995) (collecting cases),
and must articulate on the record a “sound reason” for the
rejection, Kraus, 137 F.3d at 453.
With that standard in mind, Kelly first argues that the
trial judge failed to provide a sound reason for the rejection
of his pleas. The reasons the judge articulated when re-
fusing the pleas were that she had given Kelly “lots of
opportunities” to plead guilty, that the government had
already rested, and that she had made herself and her staff
available for “significant periods” so that he could plead
guilty.
The judge’s reasons for rejecting the pleas are sufficiently
sound. Most significantly, Kelly’s plea attempt on the dis-
tribution counts occurred very close to the end of the trial.
Substantial judicial resources had already been spent on
the trial and on Kelly’s prior unsuccessful plea attempts.
See United States v. Shepherd, 102 F.3d 558, 562 (D.C. Cir.
1997) (lateness of defendant’s request to plead guilty is a
proper factor to consider in rejecting plea). Additionally, in
light of counsel’s assurance that he had reviewed the in-
dictment with Kelly numerous times and in light of Kelly’s
four prior aborted plea attempts, the judge reasonably
interpreted Kelly’s remarks during the plea colloquy as an
indication that he did not want to plead guilty and that he
was wasting the court’s time. See Kraus, 137 F.3d at 453
(emphasizing the district court’s responsibility to ensure
6 No. 01-3509
that the defendant’s plea is “voluntary and knowing”). Be-
cause the judge articulated a sound reason for the rejection,
she did not abuse her discretion in rejecting Kelly’s guilty
pleas.
Lastly, Kelly’s argument that the district court violated
his Sixth Amendment right to counsel has no merit. Kelly
contends that he was entitled to the assistance of counsel
during his plea hearing, see Santobello, 404 U.S. at 261, and
that the judge punished him for exercising that right before
continuing with the colloquy. The flaw in Kelly’s argument
is that the judge’s refusal to continue the colloquy had noth-
ing to do with Kelly’s consultation with counsel. Rather, it
appears that the judge interpreted Kelly’s comments during
the colloquy to indicate that he did not truly want to admit
factual guilt and that he was merely wasting the court’s
time. Even if that interpretation was unreasonable, it does
not implicate Kelly’s Sixth Amendment right to counsel.
AFFIRMED.
ROVNER, Circuit Judge, dissenting. I respectfully dissent
because it is my view that the district court abused its
discretion by mischaracterizing the record in explaining its
reasons for rejecting Kelly’s guilty pleas. First, the judge
explained that she gave Kelly “lots of opportunities” to
plead guilty, but Kelly attempted only once to plead guilty
to the distribution counts. During that attempt, Kelly did
not refuse to plead guilty as the judge indicated at sentenc-
ing. Instead, when asked whether he was agreeable to
pleading guilty, Kelly quite clearly responded, “yes.” See
United States v. Maddox, 48 F.3d 555, 560 (D.C. Cir. 1995)
(district court abused its discretion in rejecting guilty plea
based solely on defendant’s denial of factual guilt during
No. 01-3509 7
previous plea colloquy). Cf. Neal v. Grammar, 975 F.2d 463,
466 (8th Cir. 1992) (affirming guilty plea because even
though defendant initially denied factual guilt, he later
admitted guilt). Kelly’s only hesitation was that he believed
that he needed more time to review the distribution charges
with his attorney—a reasonable request because the plea
agreement had changed overnight and because Kelly had
been brought before the judge early that morning with little
time to discuss the new agreement with his attorney. More-
over, it was unlikely that Kelly would balk at pleading
guilty to the distribution counts because he had already
admitted to the underlying conduct, and the judge herself
suggested that pleas to those counts might be less “problem-
atic.”
The district court also mischaracterized the record when
explaining that it rejected the pleas because the govern-
ment had already rested. The government had not yet
rested when Kelly began the plea colloquy on the distribu-
tion counts, and had the court not ignored counsel’s request
to continue their “conversation,” Kelly could have entered
his pleas before the government rested. Granted, very little
remained in the government’s case when Kelly began his
colloquy, but the judge’s remark that Kelly should “discuss
this further in the lockup” suggested that the timing of the
pleas was not a problem and that Kelly could continue the
colloquy after the judge’s motion call. Thus, because the
judge’s reasons for rejecting Kelly’s pleas were based on
mischaracterizations of the record, I do not believe that
they were sufficiently sound. See United States v. Kraus,
137 F.3d 447, 453 (7th Cir. 1998).
The government argues that any conceivable error in
rejecting the guilty pleas must be deemed harmless because
Kelly’s only tangible benefit of pleading guilty would be the
prospect of an offense-level reduction for acceptance of
responsibility, and such a prospect was slim at best. The
government also argues that a reversal would be “pointless”
8 No. 01-3509
as Kelly already received a fair trial. Those arguments miss
the mark. First, the possibility of a reduced sentence based
on acceptance of responsibility constitutes sufficient prej-
udice to Kelly. See United States v. Shepherd, 102 F.3d 558,
563 (D.C. Cir. 1997). And even if such prejudice is not suf-
ficient, an additional conviction is clearly prejudicial. Ball
v. United States, 470 U.S. 856, 865 (1985); Shepherd, 102
F.3d at 563; Maddox, 48 F.3d at 560; United States v.
Delegal, 678 F.2d 47, 52 (7th Cir. 1982). The government’s
other argument is circular—Kelly is not complaining that
his trial was unfair; he is complaining that he incurred an
additional conviction because he was not permitted to plead
guilty.
Thus, because the district court abused its discretion in
rejecting Kelly’s guilty pleas and because Kelly was preju-
diced by the rejection, I would remand the case with in-
structions to permit Kelly to plead guilty and to vacate the
jury verdicts.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-5-02