Case: 08-40624 Document: 00511019492 Page: 1 Date Filed: 02/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 3, 2010
No. 08-40624
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROCKY SELF,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Appellant Rocky Self appeals his sentence, imposed pursuant to a plea
agreement, for violations of 18 U.S.C. § 924(c). For the reasons set forth herein,
we VACATE Self’s conviction and sentence and REMAND for further
proceedings not inconsistent with this opinion.
I
Self was indicted on two counts of bank robbery and aiding and abetting
the same in violation of 18 U.S.C. § 2113(a) and (d) (Counts I and III), and two
counts of carrying a firearm during a crime of violence and aiding and abetting
the same in violation of 18 U.S.C. § 924(c) (Counts II and IV). He pleaded guilty
to Counts III and IV and agreed to cooperate with the Government in exchange
for the Government’s agreeing to drop Counts I and II.
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The parties entered into a plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), which specified that Self would receive 87
months’ imprisonment for Count III and 84 months for Count IV, a total of 171
months. The plea agreement gave Self the right to withdraw his plea of guilty
if the district court declined to accept the agreed-to sentence. Self waived the
right to appeal “on all grounds,” but reserved the right to appeal the failure of
the district court to impose a sentence in accordance with the terms of the
agreement.
A magistrate judge accepted Self’s guilty plea and recommended that the
district court sentence Self in accordance with the terms of the parties’
agreement. However, the presentence report (PSR) submitted to the district
court recommended a lengthier sentence than that to which the parties had
agreed for Count III. The PSR determined that Self was a career offender and
recommended a career offender enhancement on Count III that raised the
advisory guidelines range to 188 to 235 months. When the mandatory minimum
of 84 months for Count IV was added, the resulting guidelines range was 272 to
319 months’ imprisonment. Self objected to the PSR’s determination that he was
a career offender; but, at sentencing, he withdrew his objection.
At sentencing, the district court informed Self that based on the career
offender enhancement, it would not accept the parties’ agreed-to sentence of 70
to 87 months for Count III. The district court informed Self of his right to
withdraw his guilty plea and that if he did not withdraw his plea, he might
receive a sentence less favorable than that agreed to in the plea agreement. Self
declined to withdraw his guilty plea. The district court reiterated that it would
accept all of the plea agreement’s terms except the recommended sentence as to
Count III. Self again stated that he did not wish to withdraw his plea. Self
allocuted and his defense attorney requested the minimum sentence. The
district court then sentenced Self to the minimum sentence of 188 months for
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No. 08-40624
Count III, taking into account the career offender enhancement, and 84 months
for Count IV, resulting in a sentence of 272 months.
Self did not timely appeal. Rather, he filed two pro se motions for
reduction in sentence. He then filed a 28 U.S.C. § 2255 petition for permission
to file an out-of-time appeal. The district court granted the petition and
appointed counsel. We now consider Self’s appeal.
II
The Government argues that Self waived the right to appeal his sentence
in the plea agreement. Because we conclude, infra, that the district court
rejected the plea agreement in toto, Self’s waiver of rights in that agreement
does not bar his appeal. See, e.g., United States v. Moore, 275 F. App’x 394, 395
(5th Cir. 2008) (unpublished) (noting that an appeal waiver is not enforceable
after a district court rejects a plea agreement containing such a clause); see also
In re Vasquez-Ramirez, 443 F.3d 692, 697 (9th Cir. 2006) (noting that if a plea
agreement is rejected, a defendant who persists in his guilty plea is entering a
“naked plea, unencumbered by the waivers of his right to appeal or collaterally
challenge the proceedings”). Even assuming Self’s appeal waiver was
enforceable, its terms do not apply here. The plea agreement reserved Self’s
right to appeal “the failure of the Court, after accepting the agreement, to
impose a sentence in accordance with the terms of this agreement.” The 272
month sentence imposed by the district court exceeded the 171 month sentence
stipulated to in Self’s plea agreement; the sentence was not “in accordance” with
the plea agreement’s terms. There is no obstacle to Self’s appeal.
III
A
Self argues that he is entitled to a sentence reduction because the district
court accepted the plea agreement but did not comply with its terms. Self did
not raise any objection to the proceedings at the sentencing hearing and he did
not assert this argument as a basis for a sentence reduction in either of his post-
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hearing motions. Accordingly, we review for plain error. See Puckett v. United
States, 129 S. Ct. 1423, 1427–29 (2009); United States v. Smith, 417 F.3d 483,
487–88 (5th Cir. 2005). Self must show an error that was not affirmatively
waived, that is clear or obvious, and that affected his substantial rights. Puckett,
129 S. Ct. at 1429. If these requirements are met, we have the discretion to
remedy the error if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (quotation omitted) (alteration in
original).
B
The first issue is whether the district court accepted or rejected the plea
agreement. Self contends that the district court accepted the plea agreement but
did not comply with the sentencing terms agreed to by the parties as required
under Federal Rule of Criminal Procedure 11(c)(1)(C). The Government
contends that the district court rejected the plea agreement because it disagreed
with the sentencing agreement reached by the parties.
The parties agreed to specific sentences for Counts III and IV pursuant to
Rule 11(c)(1)(C), which makes such a sentence binding on the court once the
court accepts the plea agreement. Rule 11 further requires that “the court may
accept the agreement, reject it, or defer a decision until the court has reviewed
the presentence report.” F ED. R. C RIM. P. 11(c)(3)(A). “If the court accepts the
plea agreement, it must inform the defendant that to the extent the plea
agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed
disposition will be included in the judgement.” F ED. R. C RIM. P. 11(c)(4). If it
rejects the plea agreement, then it must:
inform the parties that the court rejects the plea agreement; . . .
advise the defendant personally that the court is not required to
follow the plea agreement and give the defendant an opportunity to
withdraw the [guilty] plea; and . . . advise the defendant personally
that if the plea is not withdrawn, the court may dispose of the case
less favorably toward the defendant than the plea agreement
contemplated.
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F ED. R. C RIM. P. 11(c)(5).
At sentencing, the district court considered and agreed with the PSR’s
finding that Self was a career offender subject to a career offender enhancement.
The court further found that the applicable Guidelines range would be 188 to
235 months as to Count III (rather than 70 to 87 months as specified in the plea
agreement) and 84 months for Count IV, to run consecutively. The court then
stated:
[I] advise the defendant that I will not follow, cannot follow . . . that
portion of the plea agreement, which would have set the sentence
. . . [at] 70 to 87 months. . . .
I must inform the parties of my rejection of that part of the plea
agreement.
The court warned Self as required by Rule 11(c)(5):
I must advise the defendant personally that the court is not
required to follow that plea agreement, and I give you an
opportunity to withdraw your plea of guilty.
And I advise the defendant personally that if the plea is not
withdrawn, the court may dispose of the case less favorably than
that in the plea agreement. But you have a right to withdraw . . . .
And if you don’t withdraw . . . it would be that part of the plea
agreement that would be changed, however, the rest of the plea
agreement will remain the same.
The court asked Self whether he wished to withdraw his plea. Self stated, “No,
sir, I don’t.” Self was then allowed to allocute and the district court sentenced
him to 272 months, rather than 171 months as specified in the plea agreement.
Although we have found no case in our Circuit that explicitly addresses
whether a plea agreement may be accepted or rejected on a piecemeal basis,
based on the language of Rule 11, we conclude that it cannot. See F ED. R. C RIM.
P. 11(c)(3)(A) (finding that “the court may accept the agreement, reject it, or defer
a decision until the court has reviewed the presentence report” (emphasis
added)); see also In re Morgan, 506 F.3d 705, 709 (9th Cir. 2007) (noting that a
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court may not accept a plea agreement on a piecemeal basis); McClure v.
Ashcroft, 335 F.3d 404, 413 (5th Cir. 2003) (noting that a court may accept or
reject a plea agreement but may not modify it). Rule 11 speaks in terms of a
“plea agreement” and “does not distinguish between ‘sentence bargains’” and “so-
called ‘charge bargains,’ in which a criminal defendant typically pleads guilty to
a specific charge in exchange for the prosecution agreeing to drop other charges.”
In re Morgan, 506 F.3d at 709. At least one other court has concluded that the
“rejection of a stipulated sentence constitutes rejection of the entire plea
agreement, thereby triggering the mechanisms in . . . Rule 11(c)(5).” Id. We
agree. By rejecting the agreed-to sentence of 87 months on Count III, the
district court constructively rejected the plea agreement in toto.1 Further indicia
that the district court rejected the plea agreement is that it admonished Self as
required by Rule 11(c)(5), which sets forth the warnings that must be delivered
to a defendant when the court rejects a plea agreement.
C
It was within the district court’s discretion to reject the plea agreement.
See Smith, 417 F.3d at 487 (“A district court may properly reject a plea
agreement based on the court’s belief that the defendant would receive too light
of a sentence.”). However, the district court was not permitted to reject the plea
agreement and then re-impose it on the parties with terms that it found
acceptable. See, e.g., McClure, 335 F.3d at 413. In this respect, the colloquy
between Self and the district court is problematic. Although the district court
followed the dictates of Rule 11(c)(5) in advising Self that he could withdraw his
plea and might be sentenced more harshly, the district court at the same time
stated that the plea agreement would stand in all respects except for the
1
We note that the district court unnecessarily muddied the waters by making
statements to the effect that it was rejecting “that portion of the plea agreement” specifying
an 87-month sentence. The better practice is to make clear that the entire plea agreement is
being rejected and then give the Rule 11 warnings.
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sentence. Thus, it is unclear whether Self understood that if he withdrew his
plea of guilty, he could either proceed to trial or try to negotiate a new plea
agreement, or if he persisted in his guilty plea, he would be sentenced without
any of the constraints or benefits of the plea agreement, including the
government’s agreement to drop two of the counts. Instead, it appeared that the
district court was offering the same terms as the plea agreement, except that the
sentence would be changed.
The district court’s error substantially affected Self’s rights. He bargained
for 171 months’ imprisonment in exchange for cooperating with the Government
and agreeing to other conditions imposed by the plea agreement. But instead of
that bargained-for outcome, Self was subjected to an altogether different
bargain—one of the district court’s making. Had the district court rejected Self’s
plea agreement in toto and sent the parties back to the drawing board, we cannot
say what agreement they might have struck.
Strict compliance with Rule 11 is generally required. See, e.g., McCarthy
v. United States, 394 U.S. 459, 463–64 (1969) (holding that “a defendant is
entitled to plead anew if a . . . district court accepts his guilty plea without fully
adhering to the procedure provided for in Rule 11”). For the same reasons that
the district court may not involve itself in plea negotiations, it may not reject a
plea agreement and then, nonetheless, impose it on the parties with
modifications that it chooses. “Judicial involvement in the plea negotiation
process is to be strictly limited to rejection of the agreement and an explanation
for the rejection.” United States v. Jeter, 315 F.3d 445, 449 (5th Cir. 2002); see
also F ED. R. C RIM. P. 11(c)(1). Failure to properly inform Self that the entire plea
agreement was being rejected, compounded by the district court’s error in re-
imposing all of the terms of the plea agreement on Self, except for the agreed-to
sentence under Rule 11(c)(1)(C), requires reversal because such error “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” See,
e.g., United States v. Adams, 634 F.2d 830, 836 (5th Cir. 1981).
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The proper remedy is to vacate Self’s conviction and sentence and allow
him to proceed before a different judge. See United States v. Miles, 10 F.3d 1135,
1142 (5th Cir. 1993) (noting that the proper remedy for a Rule 11 violation
arising from a judge’s participation in plea negotiations is to vacate the sentence
and conviction and allow a defendant to replead before a different judge); Adams,
634 F.2d at 842–43 (“Our remand for resentencing before a different judge is
intended . . . to extend the prophylactic scheme established by Rule 11,” not a
judgment “as to the actual impartiality of the district court judge who heard this
case.”).
IV
Accordingly, we VACATE Self’s conviction and sentence and REMAND the
case for assignment to a different judge for proceedings not inconsistent with
this opinion.
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