United States v. Daniel Ushery, Jr.

785 F.3d 210, 2015 FED App. 0082P, 2015 U.S. App. LEXIS 7470, 2015 WL 2084067
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 6, 2015
Docket14-5046
StatusPublished
Cited by23 cases

This text of 785 F.3d 210 (United States v. Daniel Ushery, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Daniel Ushery, Jr., 785 F.3d 210, 2015 FED App. 0082P, 2015 U.S. App. LEXIS 7470, 2015 WL 2084067 (6th Cir. 2015).

Opinions

GILMAN, J., delivered the opinion of the court in which SUTTON, J., joined. CLAY, J. (pp. 225-30), delivered a separate dissenting opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge.

During an August 14, 2013 rearraignment, Daniel L. Ushery, Jr. pleaded guilty to the distribution of crack cocaine. He was not prepared to plead guilty when the rearraignment first began. Instead of-adjourning the rearraignment, however, the district court oversaw a back-and-forth negotiation between the government’s attorney and Ushery’s counsel concerning specific provisions of a potential plea agreement.. Only after the government offered to strike the appeal-waiver provision from the proposed plea agreement— which occurred during the course of the colloquy with the district court — did Ushery express an intent to plead guilty. The court eventually accepted Ushery’s plea and, in December 2013, sentenced him to 252 months in prison, an upward variance of 17 months from the top end of the applicable Sentencing Guidelines range.

Ushery timely appealed, arguing that (1) the district court violated Rule 11(c)(1) of the Federal Rules of Criminal Procedure’s ban against judicial participation in plea discussions, (2) Ushery’s exclusion from an August 6, 2013 pretrial teleconference violated his right to be present at every critical stage of the proceedings, and (3) his 252-month sentence was substantively unreasonable. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Underlying offense

Ushery, in April 2012, sold approximately half a gram of crack cocaine to a confi[213]*213dential informant in Campbell County, Kentucky for $100. When a police officer attempted to arrest Ushery for the offense, Ushery escaped in his car,.running red lights and stop signs in the process. Only when Ushery crashed his car into a shed did the motorized chase end. He then fled on foot until he was eventually apprehended. The pursuing officer dislocated his shoulder in the process and subsequently retired due to the injury.

Upon Ushery’s arrest, he was found to be in possession of small amounts of her- - oin, crack cocaine, and marijuana, as well as $329.50 in cash. Ushery also admitted to swallowing two bags of heroin during the pursuit. He further admitted to selling drugs in the past. At the hospital where he was transported, Ushery threatened to kill the arresting officer and the officer’s family.

While in jail, Ushery called his girlfriend and asked her to retrieve money from a storage unit in Cincinnati, Ohio. The call was recorded by the police. After obtaining a search warrant, the police searched the storage unit and seized $8,781 in cash, a Marlin rifle, a .22 caliber handgun, ammunition, two boxes of baseball cards, and a digital scale.

A grand jury indicted Ushery in May 2013 for distributing crack cocaine, for possessing crack cocaine with the intent to distribute, and for possessing heroin with the intent to distribute, all in violation of 21 U.S.C. § 841(a)(1). The indictment also sought criminal forfeiture of the items seized from Ushery’s person and from his storage unit. As part of the proceedings, the government filed a notice pursuant to 21 U.S.C. § 851(a)(1) that Ushery had been convicted of three prior felony drug offenses.

B. Arraignment and plea discussions

Ushery pleaded not guilty during his initial arraignment on May 16, 2013. On June 27, 2013, Ushery’s counsel filed a motion for rearraignment, which the district court set for July 2. But Ushery again declined to plead guilty at the July 2 rearraignment, despite his counsel informing the court that Ushery had previously told counsel that “he was not going to trial” and that “he would have to plead.” His counsel alerted the district court to Ushery’s concern about being sentenced as a career offender, relating Ushery’s statement to counsel that “he cannot take that much time.”

During the rearraignment, Ushery expressed frustration with his counsel: “[My attorney is] making moves in this case without me. So I don’t even feel comfortable with him representing me.... I would like, if possible, just to have another attorney.” The court granted Ushery’s motion for new counsel and scheduled a status conference for July 9, 2013.

At the July 9, 2013 status conference, Ushery’s new counsel stated that he and Ushery were “on the same page,” and that he had explained to Ushery that they would either “resolve [the case] by plea or ... resolve it by trial.” The district court set August 19, 2013 as the trial date and August 6, 2013 as the date of the final pretrial conference. It also set August 2, 2013 as the last day for Ushery to file a motion for rearraignment to enter a guilty plea. Ushery’s counsel filed such a motion on August 2, at which time he also filed a motion to continue the rearraignment date. The court granted both motions and converted the August 6 pretrial conference into a telephonic status conference.

1. The August 6,2013 teleconference

On August 6, 2013, the govérnment’s attorney and Ushery’s counsel, but not Ushery, participated in a teleconference [214]*214with the district court. The court called for the conference “to determine how [to] proceed going forward.” Ushery’s counsel informed the court that he had filed the motion for rearraignment “because there were concerns” about the court’s deadline for doing so, but that Ushery had not yet made a decision. In discussing whether to push the trial date back a week, the court asked if Ushery needed the additional time “to try to work out final details of a plea agreement.” Ushery’s counsel responded affirmatively: “The resolution is a plea or a trial. Well, I can represent [that Ushery] doesn’t want to go to trial, but he’s concerned about signing. I said you have to make a decision. If I have a little more time, I can get it resolved.”

In response, the court asked if Ushery’s counsel thought “it would help to have a hearing with [Ushery] to discuss that with him.” Counsel said yes. The court accordingly set a “tentative plea date” for August 14, 2013, and moved the trial date to August 26, 2013. It also stated that “if the defendant pleads guilty on [August 14], he will be entitled to all points for acceptance of responsibility. Any pleas after that date will jeopardize that.”

2. The August 14, 2013 rearraignment

The district court began the August 14, 2013 rearraignment by informing Ushery that the government’s attorney and Ushery’s counsel had participated in a brief teleconference with the court “to discuss the potential of having [Ushery] enter a plea of guilty.” So that Ushery would “receiv[e] all credits for acceptance of responsibility,” the court stated that August 14 was “like a drop-dead date” for pleading guilty. Ushery’s counsel replied by saying that Ushery would not be pleading guilty that day: “We’re not at this point prepared to enter that plea.” Just a few sentences later, Ushery’s counsel reiterated the point: “At this stage, [Ushery]’s not ready to enter a plea. As I said to him, I’ll be here on the 26th.”

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Cite This Page — Counsel Stack

Bluebook (online)
785 F.3d 210, 2015 FED App. 0082P, 2015 U.S. App. LEXIS 7470, 2015 WL 2084067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-daniel-ushery-jr-ca6-2015.