United States v. Patrick

• Court: Court of Appeals for the First Circuit
• Decided: November 8, 1999
• Docket: 98-1821
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1821



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                          DARIUS HINES,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Robert E. Keeton, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Stahl, Circuit Judge.


Roger Witkin with whom Arnold P. Cohen was on brief for

appellant.

     Vicki S. Marani, Department of Justice, with whom Donald K.

Stern, United States Attorney, and George W. Vien, Assistant United

States Attorney, was on brief for the United States.


November 8, 1999


BOUDIN, Circuit Judge.  Darius Hines was charged under a

fourth superceding indictment with possessing and distributing

cocaine base on six specific occasions and conspiracy to do the

same.  21 U.S.C.  841, 846.  Prior to trial, there were

apparently some discussions with the government as to a possible

plea, of which more hereafter, but no agreement was reached.  Four

days before trial, the government filed an information under 21

U.S.C.  851, setting forth Hines's prior convictions, a necessary

predicate for subjecting him to increased punishment on account of

prior convictions.  See 21 U.S.C.  841(b)(1)(A), 851(a).

  Trial began on February 17, 1998.  Both sides presented

opening arguments and the government offered testimony of a key

police witness.  On the second day of trial, after this witness

concluded his direct testimony, the parties attempted to negotiate

a plea.  The next day, as the trial was about to resume, the

defendant agreed to plead guilty to all charges and, in exchange,

the government agreed to withdraw the information under section 851

and to recommend at sentencing a two-level reduction in the

defendant's offense level for acceptance of responsibility.

  The plea agreement included a provision by which Hines

explicitly agreed to waive his right to appeal any sentence that

did not exceed the maximum statutory penalty.  At a plea hearing

conducted on February 19, 1998, the government described the terms

of the plea bargain, including the provision waiving Hines's right

to appeal from the sentence so long as it did not exceed the

statutory maximum.

  Three months later, the court held a sentencing hearing. 

Hines sought a three-level reduction in his offense level for

acceptance of responsibility; the government supported a two-level

reduction, as promised, but it opposed the third level which is

available, inter alia, where the defendant otherwise has a criminal

offense level of 16 or higher, qualifies for a two-level reduction

for acceptance of responsibility, and "has assisted authorities in

the investigation or prosecution of his own misconduct" by taking

one or more of the following steps:

    (1) timely providing complete information to

  the government concerning his own involvement

  in the offense; or



    (2) timely notifying authorities of his

  intention to enter a plea of guilty, thereby

  permitting the government to avoid preparing

  for trial and permitting the court to allocate

  its resources efficiently.



U.S.S.G.  3E1.1(b) (1997).



   The district court ruled that Hines was entitled to a

two-level but not a three-level reduction; that with that

reduction, Hines was subject under the guidelines to a minimum

sentence of 292 months' imprisonment; that the court was exercising

its discretion to reduce this by 58 months to account for time

served under state law for related activities, U.S.S.G.  5G1.3(c);

and that Hines was therefore sentenced to 234 months' imprisonment. 

Hines then noticed an appeal and the district court, being reminded

of the waiver, said that the validity of the appeal in light of the

waiver was a matter for this court.

  On this appeal, the government suggests that we ought not

reach the merits--Hines's claim that he was entitled to the three-

level reduction--because his waiver precludes an appeal.  In

response, Hines says that, as a matter of public policy, such

waivers should not be enforced against a defendant and that, in any

event, his waiver was not knowing or voluntary.  This circuit has

no published opinion that squarely decides whether such waivers are

valid.  See, e.g., United States v. Springer, 28 F.3d 236, 237 (1st

Cir. 1994) (reserving issue).

  In the end, the question may be not "whether" waivers are

allowed but when, what kind, upon what explanation, and to what

extent.  Just what purports to be waived, and in what

circumstances, may vary from case to case; and even the government

concedes that circuits that have upheld waivers have also marked

out limitations.  E.g., United States v. Schmidt, 47 F.3d 188, 190

(7th Cir. 1995); United States v. Marin, 961 F.2d 493, 496 (4th

Cir. 1992).  The issues may be best left to a case where the

asserted waiver would affect our outcome.

  In this case, we have no reason to decide the waiver

issue since the result is the same whether the waiver is given

effect or the merits are resolved.  Nor is this a case in which a

valid waiver deprives us of "jurisdiction" and creates a possible

objection to bypassing waiver and deciding the merits; this court's

jurisdiction to decide a timely appeal from a sentence is

established by statute, and the choice among available grounds for

disposition is a matter for the informed judgment of the court. 

Cf. United States v. Brundidge, 170 F.3d 1350, 1354 & n.4 (11th

Cir. 1999); TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 924 (1st

Cir. 1995).

  As a predicate, we note that under the guidelines, a

three-level reduction under section 3E1.1(b)(2) is mandatory if the

stated conditions are met.  United States v. Marroquin, 136 F.3d

220, 223 (1st Cir. 1998); United States v. Talladino, 38 F.3d 1255,

1263-64 (1st Cir. 1994).  The only disputed condition in this case

is whether Hines "timely notif[ied]" the prosecutor of "his

intention to enter a plea of guilty, thereby permitting the

government to avoid preparing for trial and permitting the court to

allocate its resources efficiently."  U.S.S.G.  3E1.1(b)(2).

    Given the purpose set forth in the "thereby" clause,

the notice of an intent to plead guilty must ordinarily be given

well before trial.  This is made explicit in the commentary, which

says that to qualify for the third level reduction, the notice 

will usually occur "particularly early in the case," and must come

"at a sufficiently early point in the process so that the

government may avoid preparing for trial."  U.S.S.G.  3E1.1,

comment. (n.6).  Our paraphrase of the guideline makes the same

point.  Marroquin, 136 F.3d at 224.  Here, of course, Hines did not

agree to plead guilty until trial was actually underway and the

government had called one witness and prepared others.

  To this fact, Hines responds that he was ready to plead

guilty well before trial but--according to his counsel's proffer at

sentencing--the government refused to agree to a plea unless a

specific co-defendant of Hines also pleaded guilty.  The government

did not directly respond to this proffer and we will assume its

accuracy.  But, of course, the government's consent to a guilty

plea is not required, so what Hines actually means is that the

government would not agree before trial to conferring certain

benefits within its control, i.e., providing its support for a two-

level reduction for acceptance of responsibility and withholding or

withdrawing the information.

  Although the guideline language does not nail down the

point, we think that in general the "plea of guilty" it envisages

is an unconditional plea to the indictment, see United States v.

Morillo, 8 F.3d 864, 871-72 (1st Cir. 1993)--unless the government

and defendant agree to some lesser set of offenses, conditions, or

both, see United States v. Donovan, 996 F.2d 1343, 1345 (1st Cir.

1993) (dicta).  Otherwise, a defendant could offer at the outset to

plead guilty to only one of several offenses or to a lesser offense

and then claim to have satisfied the requirement of "timely"

notice.  Yet this general rule cannot be stated without

qualifications and the sentencing judge is entitled to some

latitude to cope with variations.

  Imagine, for example, that a defendant offers to plead to

all counts but one, saying with good cause that this last charge is

unconstitutional, and imagine further that on the eve of trial the

judge agrees, the last count is dismissed, and a guilty plea is

taken to all other counts.  Or suppose that well before trial the

defendant admits his guilt on all counts but one, pleads guilty to

all other counts, and is acquitted at trial on the remaining count. 

In both cases, one might argue (we do not decide the outcome) that

the spirit of the guideline would be satisfied; and, remember that

the guideline itself does not say "plea of guilty" to what.

  But all of this does Hines no good:  he admits that he

was guilty as charged in the indictment, yet he refused to plead

guilty until trial had begun.  He now suggests that this is because

the government held over his head the threat of the section 851

information; its filing, Hines says, would have meant a mandatory

life sentence--making acceptance of responsibility meaningless. 

He argues that in these extreme circumstances, the refusal to plead

guilty in advance of trial should not be regarded as inconsistent

with a full three-level reduction.  Reversing the cliche about

Wagner's music, the argument sounds better than it is.

   The two-level reduction is for contrition and contrition

can exist even where, albeit in unusual circumstances, the

defendant goes to trial.  But the third level is for helping the

authorities save resources by one of two specified steps--the one

here at issue is by a pre-trial plea of guilty.  See United States

v. Williams, 86 F.3d 1203, 1206 (D.C. Cir. 1996); United States v.

Covarrubias, 65 F.3d 1362, 1367-68 (7th Cir. 1995).  As already

noted, there might be some basis for a three-level reduction where

the defendant resists an early plea to an indictment that is itself

overbroad as to one or more of its charges; but so far as we know,

there was nothing whatever improper about the section 851

information that the government held in reserve, then filed, and

later withdrew.

  The government's actions in this regard are unexplained,

but it is quite possible that, until the co-defendant pleaded, the

government held the threat of a mandatory life sentence over

Hines's head in order to coerce Hines's cooperation.  These are

rough tactics, but prosecution of drug conspiracies is a rough

business.  In Donovan, we sustained the denial of a three-level

reduction for a defendant who pled guilty on the eve of trial;

there, too, the defendant said that his offer to plead guilty to

reduced charges had been made earlier but the government had

refused it to obtain cooperation.  Donovan, 996 F.2d at 1345 n.4. 

At worst, this case is another Donovan.  

  Affirmed.