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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 19-CO-1128 & 19-CO-1129
OLIVER MCBRIDE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the District of Columbia (CF3-21195-17 & CF2-04598-18)
(Hon. Robert A. Salerno, Trial Judge)
(Argued June 2, 2021 Decided August 5, 2021)
Thomas R. Healy for appellant.
Daniel J. Lenerz, Assistant United States Attorney, with whom Timothy J. Shea, United States Attorney at the time the brief was filed, Channing D. Phillips, Acting United States Attorney, and Elizabeth Trosman, John P. Mannarino, Jason B. Feldman, and Carlos A. Valdivia, Assistant United States Attorneys, were on the briefs, for appellee.
Paul Maneri, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the briefs, for Public Defender Service, amicus curiae, in support of appellant.
Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and KRAVITZ, Associate Judge, Superior Court of the District of Columbia. ∗
∗ Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.). 2
KRAVITZ, Associate Judge: Rule 11(c)(1)(C) of the Superior Court Rules of
Criminal Procedure authorizes the parties to a criminal case to stipulate as part of a
plea-bargain agreement that a specific sentence or sentencing range is the
appropriate disposition of the case. When a plea is tendered to the court under
Rule 11(c)(1)(C), the trial judge has discretion to either accept or reject the plea
based on the judge’s independent consideration of the fairness and appropriateness
of the parties’ agreement. Super. Ct. Crim. R. 11(c)(3)(A). If the judge accepts the
plea, then the agreed-upon sentence or sentencing range is binding on the court and
must be included in the judgment entered in the case. Super. Ct. Crim. R.
11(c)(1)(C); Super. Ct. Crim. R. 11(c)(4). If the judge rejects the plea, then the
judge must give the defendant an opportunity to withdraw the plea and must
inform the defendant that if the plea is not withdrawn a harsher sentence than that
contemplated by the parties could be imposed. Super. Ct. Crim. R. 11(c)(5)(B). It
is “[c]ritical” to a Rule 11(c)(1)(C) agreement “that the defendant receive the
agreed-to sentence.” Freeman v. United States, 564 U.S. 522, 535 (2011)
(Sotomayor, J., concurring) (quoting Fed. R. Crim. P. 11 advisory committee’s
note to 1979 amendments). The “very purpose” of a Rule 11(c)(1)(C) agreement is
“to bind the [trial] court and allow the Government and the defendant to determine 3
what sentence [the defendant] will receive.” Id. at 536. 1
1 Rule 11(c), entitled “Plea Agreement Procedure,” provides, in relevant part:
(1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. . . . If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will: .... (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case (such a recommendation or request binds the court once the court accepts the plea agreement). .... (3) Judicial Consideration of a Plea Agreement. (A) To the extent the plea agreement is of the type specified in Rule 11(c)(1) . . . (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report. . . . (4) Accepting a Plea Agreement. 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) . . . (C), the agreed disposition will be included in the judgment. (5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1) . . . (C), the court must do the following on the record and in open court (or, for good cause, in camera): (A) inform the parties that the court rejects the plea agreement; (B) advise the defendant personally that the court is not required to follow the plea agreement and (continued…) 4
Rule 35(b) of the Superior Court Rules of Criminal Procedure, on the other
hand, allows a defendant to file a motion for a reduction of sentence within 120
days of the imposition of sentence or the exhaustion of the defendant’s direct
appeals. A motion under Rule 35(b) is a post-sentencing “‘plea for leniency’ . . .
addressed to the trial court’s sound discretion.” Walden v. United States, 366 A.2d
1075, 1077 (D.C. 1976) (quoting Poole v. United States, 250 F.2d 396, 401 (D.C.
Cir. 1957)). The “underlying objective” of the rule “is to ‘give every convicted
defendant a second round before the sentencing judge, and [to afford] the judge an
opportunity to reconsider the sentence in light of any further information about the
defendant or the case which may have been presented to [the judge] in the
interim.’” Fed. R. Crim. P. 35 advisory committee’s note to 1983 amendments
(quoting United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968)). 2
(continued…) give the defendant an opportunity to withdraw the plea; and (C) 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. 2 Rule 35(b), entitled “Reducing a Sentence,” provides:
(1) Upon Motion. A motion to reduce a sentence may be made not later than 120 days after the sentence is imposed or probation is revoked, or not later than 120 days after receipt by the court of a mandate issued (continued…) 5
In the consolidated cases now before us, appellant Oliver McBride pled
guilty in the Superior Court to two charges pursuant to a Rule 11(c)(1)(C)
agreement. The trial judge accepted Mr. McBride’s pleas and, as required,
imposed the specific sentences agreed to by the parties: thirty months in prison to
be followed by three years of supervised release for assault with a dangerous
weapon, and time served for possession of an unregistered firearm. The judge
ordered that Mr. McBride be taken into custody immediately after sentencing. Mr.
(continued…) upon affirmance of the judgment or dismissal of the appeal, or not later than 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court must decide a motion within a reasonable time. (2) Sua Sponte by the Court. After notice to the parties and an opportunity to be heard, the court may reduce a sentence without motion, not later than 120 days after the sentence is imposed or probation is revoked, or not later than 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or not later than 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. (3) Permissible Reduction. Changing a sentence from a sentence of incarceration to a grant of probation constitutes a permissible reduction of sentence under this paragraph. 6
McBride was later transferred to the United States Bureau of Prisons to serve his
sentence.
Mr. McBride filed a timely Rule 35(b) motion for a reduction of sentence.
He argued that his sentence should be reduced because in the nearly four months
since his sentencing hearing the Bureau of Prisons had demonstrated it was unable
to provide essential care for his significant medical needs. Mr. McBride asked that
his sentence be reduced to home confinement so he could obtain necessary medical
care in the community.
The trial judge denied the motion. In a brief written order, the judge
explained that the court was “bound by” and “unable to modify or reduce” an
agreed-upon sentence imposed pursuant to a Rule 11(c)(1)(C) plea.
Mr. McBride appeals, arguing that the trial judge abused his discretion in
denying the motion on the erroneous premise that a Superior Court judge lacks any
authority under Rule 35(b) to reduce a sentence imposed pursuant to a Rule
11(c)(1)(C) plea agreement. Mr. McBride contends that Rule 35(b) allows a trial
judge to reduce even an agreed-upon Rule 11(c)(1)(C) sentence in exceptional 7
circumstances – specifically, when information received by the court after
sentencing renders the previously agreed-upon sentence plainly unjust or unfair.
Standard of Review
We ordinarily apply the abuse of discretion standard in reviewing a trial
judge’s order denying a Rule 35(b) motion for a reduction of sentence. See, e.g.,
Cook v. United States, 932 A.2d 506, 507 (D.C. 2007). The claim of error here,
however, presents a pure question of law concerning the interplay between Rules
11(c)(1)(C) and 35(b). Our review of that question is de novo. See Weems v.
United States, 191 A.3d 296, 300 (D.C. 2018); Watson v. United States, 43 A.3d
276, 283 (D.C. 2012).
Discussion
Rules 11(c)(1)(C) and 35(b) appear to be in conflict. The former binds the
trial judge to the particular sentence or sentencing range to which the parties have
agreed through the plea-bargaining process. The latter gives the defendant an
opportunity after sentencing to argue to the judge that the sentence imposed should
be reconsidered and reduced. 8
Our task when considering two statutory provisions that appear to conflict
“is to determine the interpretation of both provisions that best harmonizes them,”
J.P. v. District of Columbia, 189 A.3d 212, 219 (D.C. 2018), and “to reconcile
them if possible” with the goal of “giv[ing] effect to the language and intent of
both,” George v. Dade, 769 A.2d 760, 770 (D.C. 2001) (internal quotations
omitted). Our job is the same when called on to interpret conflicting provisions of
court rules. See In re Goldberg, 460 A.2d 982, 985 n.5 (D.C. 1983).
We have never before had occasion to consider how best to harmonize Rules
11(c)(1)(C) and 35(b), and the relevant case law from other jurisdictions is limited.
The decisions of a small number of other federal and state courts, however, are
informative.
We look first to the federal courts. Before its amendment in 1987, Rule
35(b) of the Federal Rules of Criminal Procedure was identical in substance to
Superior Court Criminal Rule 35(b). Ramos v. United States, 569 A.2d 158, 160
n.4 (D.C. 1990). Federal court decisions construing Federal Rule 35(b) as it
existed before the 1987 amendment therefore “may ‘guide[] our construction of the 9
local rule.’” Id. (quoting Allen v. United States, 495 A.2d 1145, 1149 (D.C. 1985)
(en banc)). 3
To our knowledge, every federal court to have decided the issue has
determined that in exceptional circumstances the pre-1987 version of Federal Rule
35(b) authorized trial judges to reduce agreed-upon sentences imposed in
accordance with Rule 11(c)(1)(C). See, e.g., United States v. Semler, 883 F.2d
832, 835 (9th Cir. 1989); United States v. Godfrey, 651 F. Supp. 869, 874 (N.D.
Ala. 1986); United States v. Goehl, 605 F. Supp. 517, 519 (N.D. Ill. 1984). In
Semler, the decision on which Mr. McBride principally relies, the Ninth Circuit
defined exceptional circumstances as those in which “information the district court
received after sentencing the defendant” rendered the agreed-upon sentence
“plainly unjust or unfair.” 883 F.2d at 835. In Godfrey and Goehl, district judges
in the Fifth and Seventh Circuits set a slightly different standard, requiring “post-
sentencing developments, previously unforeseen,” that made the “earlier binding
agreement inappropriate.” 651 F.Supp. at 874; 605 F.Supp. at 519. In all of these
cases, courts harmonizing federal rules identical in substance to Superior Court
3 The 1987 amendment narrowed Federal Rule 35(b) so as to authorize only the government to move for a reduction of sentence, and only for a defendant’s substantial assistance to law enforcement. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 215(b), 98 Stat. 2015, 2016 (1984). We have never adopted the 1987 amendment to Federal Rule 35(b). Cf. D.C. Code § 11-946 (2012 Repl.). 10
Rules 11(c)(1)(C) and 35(b) have concluded that a Rule 35(b) motion may be
granted in the rare instance in which a reduction of sentence is necessary to prevent
a significant injustice, even though the government is otherwise guaranteed the
benefit of its bargain. Cf. United States v. McDowell Contractors, Inc., 668 F.2d
256, 257 (6th Cir. 1982) (declining to reach the issue).
Results in the state courts have been more mixed. Some state courts
interpreting state laws and court rules analogous to Superior Court Rules
11(c)(1)(C) and 35(b) have adopted an “exceptional circumstances” approach
similar to that of the federal courts. See, e.g., State v. Patterson, 564 S.W.3d 423,
432-34 (Tenn. 2018) (an agreed-upon sentence may be reduced after sentencing
“where unforeseen, post-sentencing developments” support the modification “in
the interest of justice”) (internal quotations omitted); State v. Holdaway, 943 P.2d
72, 75 (Idaho Ct. App. 1997) (a stipulated sentence may be reduced if an
unforeseen post-sentencing event or previously unavailable information is “of such
consequence as to render the agreed sentence plainly unjust”).
Other state courts, however, have taken a different approach. In Griffin v.
Williams, No. 19-0688, 2021 W. Va. LEXIS 56, *59-60 (W. Va. 2021), for
example, the court determined that West Virginia’s corollary to Rule 35 does not 11
authorize the reduction of a stipulated sentence agreed to as part of a plea, holding
that a defense lawyer’s failure to file a motion to reduce a stipulated sentence did
not constitute ineffective assistance of counsel because the trial court “could not
have agreed to reduce the sentence without itself breaching the plea.” Several
other state courts, interpreting state statutes or court rules, have held that sentences
imposed in accordance with stipulated plea agreements cannot be reduced without
the government’s consent. See State v. Stafford, 128 N.E.3d 1291, 1292 (Ind.
2019) (interpreting state statute); People v. Segura, 188 P.3d 649, 656 (Cal. 2008)
(same); Chertkov v. State, 642 A.2d 232, 238-39 (Md. 1994) (interpreting state
court rule). All of these courts have placed great emphasis on the importance of
protecting contractual rights the government has obtained through the plea-
bargaining process.
We have carefully considered these precedents. We ultimately conclude,
however, that we need not decide how to resolve the apparent conflict between
Rule 11(c)(1)(C) and Rule 35(b) because this appeal is moot. Mr. McBride was
released from the custody of the Bureau of Prisons in these cases on May 21, 2021,
and the parties and amicus curiae agree that his release has made the relief he
requested in the trial court – early release on home confinement – both impossible
and unnecessary. See Settlemire v. District of Columbia Office of Emp. Appeals, 12
898 A.2d 902, 905 (D.C. 2006) (“[I]t is well-settled that, while an appeal is
pending, an event that renders relief impossible or unnecessary also renders that
appeal moot.”) (quoting Vaughn v. United States, 579 A.2d 170, 175 n.7 (D.C.
1990)).
We are not required to dismiss an appeal simply because it has become
moot. “‘[T]he decisions of the Supreme Court on the issue of mootness,’ which
arise in the context of the case or controversy requirement of Article III of the
Constitution, ‘are not binding on this court.’” Atchison v. District of Columbia,
585 A.2d 150, 153 (D.C. 1991) (quoting Lynch v. United States, 557 A.2d 580, 582
(D.C. 1989) (en banc)).
We nonetheless ordinarily avoid deciding moot cases. Crawford v. First
Wash. Ins. Co., 121 A.3d 37, 39 (D.C. 2015). We recognize “that an adversary
system can best adjudicate real, not abstract, conflicts,” and we generally follow
the principles of standing, justiciability, and mootness “to promote sound judicial
economy.” Atchison, 585 A.2d at 153 (quoting District of Columbia v. Walters,
319 A.2d 332, 338 n.13 (D.C. 1974)). “Our decisions thus require the exercise of
careful discretion in deciding whether to reach the merits of a seemingly moot
controversy.” Id. 13
In exercising that careful discretion, we consider whether a case presents “a
matter of importance that is likely to recur, yet evade review with respect to others
similarly situated,” Teachey v. Carver, 736 A.2d 998, 1002 (D.C. 1999) – that is,
whether the case involves an “overarching issue[] important to the resolution of an
entire class of future [cases],” McClain v. United States, 601 A.2d 80, 82 (D.C.
1992).
The interplay between Rules 11(c)(1)(C) and 35(b) raises a legal question of
some significance to the proper functioning of the plea-bargaining process in the
Superior Court. The parties and amicus curiae tell us that Rule 11(c)(1)(C) plea
agreements have been entered with increased frequency in recent years, primarily
on the Superior Court’s felony calendars, and that Rule 11(c)(1)(C) pleas are now
quite common in the most serious felony cases – homicides, sexual assaults,
carjackings, armed robberies, and the like.
Yet even if we assume this information is accurate, we are unable to say that
the issue presented in these cases meets the exacting standard set by our
precedents. The apparent conflict between Rule 11(c)(1)(C) and Rule 35(b) is not
as elemental to the functioning of the criminal justice system as the questions 14
presented in the narrow category of criminal cases in which we have exercised our
discretion to resolve moot issues. Cf., e.g., Brown v. United States, 900 A.2d 184,
193-94 (D.C. 2006) (determining the requirements of procedural due process at
probation revocation hearings); Lynch, 557 A.2d at 581-83 (setting the standard by
which the government must prove dangerousness at pretrial detention hearings);
United States v. Edwards, 430 A.2d 1321, 1324 & n.2 (D.C. 1981) (en banc)
(deciding the constitutionality of the District’s pretrial detention statute). Nor is
the legal question raised in this appeal likely to recur but evade appellate review in
any significant number of cases. The information that the majority of the Rule
11(c)(1)(C) pleas entered in the Superior Court arise in the most serious felony
cases suggests that of the few defendants who may be able to make plausible
claims of exceptional circumstances, most will still be serving their sentences
when their cases reach this court on appeal and will thus be able to present live
controversies for our review. The absence of any previous cases in our court
addressing the interplay between Rule 11(c)(1)(C) and Rule 35(b) – and the
relatively small number of cases elsewhere – certainly supports our conclusion that
Mr. McBride has presented an interesting legal problem but not one so vital,
urgent, or likely to recur while evading review as to justify deciding the issue in
the context of a moot appeal. 15
This appeal, accordingly, is dismissed.
It is so ordered.