U.S. v. Smith

• Decision Date: 09 November 1998
• Docket Number: No. 234,D,234
• Parties: UNITED STATES of America, Appellee, v. Decaress SMITH, Defendant-Appellant. ocket 96-1826.
• Court: U.S. Court of Appeals — Second Circuit

Page 117

160 F.3d 117

UNITED STATES of America, Appellee, v. Decaress SMITH, Defendant-Appellant.

No. 234, Docket 96-1826.

United States Court of Appeals, Second Circuit.

Argued Sept. 11, 1998.

Decided Nov. 9, 1998.

David A. Lewis, New York, N.Y. (The Legal Aid Society, Federal Defender Division, Appeals Bureau, on the brief), for Defendant-Appellant.

Richard P. Maigret, Assistant United States Attorney, Buffalo, N.Y. (Denise E. O'Donnell, United States Attorney for the Western District of New York, on the brief), for Appellee.

Before: FEINBERG and JACOBS, Circuit Judges, and POLLACK, ^* District Judge.

JACOBS, Circuit Judge:

Defendant-appellant Decaress Smith pleaded guilty in the United States District Court for the Western District of New York (Elfvin, J.) to one count of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g). In a statement to the Probation Office and then at his sentencing, Smith recounted that he was working at a youth center when he took possession of the gun briefly by confiscation from a gang member. This account suggests an inchoate defense of necessity. Without inquiry concerning such a possible defense, the district court entered judgment on the plea. On appeal, Smith argues that the district court's failure to explore his possible defense amounted to a violation of Fed.R.Crim.P. 11(f), which requires the district court to ascertain that there is an adequate factual basis for the plea. We affirm.

Smith's account did not negate any required element of the offense and therefore did not call into question the district court's previous finding that the facts were adequate to support the plea. At best, Smith's account suggested a possible affirmative defense of justification, as to which the court was under no obligation to seek a waiver. We therefore conclude that the court did not abuse its discretion in finding an adequate factual basis for the plea.

BACKGROUND

The facts of the case are undisputed. On the night of April 7, 1996, Buffalo police responded to a report of shots fired near the intersection of Genesee and Latour Streets. The officers stopped Smith at the intersection Smith, who had a record of five felony convictions, agreed to plead guilty to possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). The plea agreement recited that Smith "knowingly and unlawfully" possessed the .380 caliber pistol at the time and place of his arrest, itemized his prior felony convictions, and stipulated that the gun in question had been shipped in interstate commerce.

found that he was carrying a .380 caliber semi-automatic pistol, and arrested him.

At the plea allocution on September 20, 1996, Judge Elfvin read from the indictment, and ascertained that Smith had read and understood the plea agreement. After reviewing Smith's prior felonies, the judge said "you, against the law, unlawfully and knowingly had in your possession a firearm, a particular one, ... this being in violation of a provision of the United States criminal law," and then inquired of Smith, "Do you understand what you're charged with in that?" Smith answered, "Yes, I do."

Later, the court concluded, "I am satisfied, Mr. Smith, that there is a factual basis for a plea to count one of the indictment." Smith's guilty plea was accepted.

The presentence report ("PSR") set forth the several facts of the case under the heading "offense conduct." In the section headed "adjustment for acceptance of responsibility," the PSR paraphrased Smith's statement explaining how he came by the gun:

The defendant admitted his involvement in the instant offense. During the presentence interview, the defendant advised that on the date of the offense, he was working as a security guard (volunteer) and counselor at the Brothers and Sisters Alternatives to Violence Center located at 1237 Genesee Street, Buffalo, New York. The Center was having an Easter party for teenagers. Two (2) rival groups of teenagers started fighting which resulted in gunshots. The defendant advised he took the gun away from one of the kids and left the building. He advised that he was attempting to take the gun to a "safe house" on Latour Street. However, the police arrived, followed him, and arrested him for possessing the gun. The defendant reported that there was one (1) discharged shell still in the gun, and he advised that he did not shoot the weapon.

The PSR recommended a three-point reduction in offense level for acceptance of responsibility.

At the sentencing hearing, Smith confirmed to the court that he had received the PSR and had discussed it with his lawyer, and his attorney interposed no objections to it.

In arguing for the minimum sentence under the Sentencing Guidelines, Smith's attorney noted his repeated run-ins with the law and acknowledged that Smith "ended up involved with this weapon and whichever way you take it he knew very clearly, as a prior felon, he shouldn't have anything to do with guns at all, but he did...."

Speaking on his own behalf, Smith explained (as he had to the Probation Office) that he had confiscated the gun in order to prevent violence at the youth center:

[T]his present incident is just a situation where we had a center and two groups of individuals came in there and I had possession of the pistol, because we didn't want anymore of the kids in the club to get shot at ... [.][W]e run a center based on alternative[s] to violence and that was basically the reason why I had possession of the gun. Being on parole and everything and understanding I wasn't suppose[d] to have it, ... and that was something that I thought about afterwards, and put me in this situation now, and all I can say is ... I plead guilty to it, get the time, get over with it and try to elevate ... to something a little ... better when I get out the next time.

The court sentenced Smith to 210 months, the maximum sentence in his guideline range.

DISCUSSION

The government raises the threshold argument that Smith waived his right to this appeal in his plea agreement. We disagree. Smith's plea agreement waived only his right to appeal his sentence, which is unchallenged Smith relies on Fed.R.Crim.P. 11(f):

on appeal. Smith is arguing a Rule 11 violation, which the plea agreement did not foreclose. We therefore go to the merits.

Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

This language does not require the district court to weigh any evidence or predict what a jury would do with the case. The court must "assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty." United States v. Maher, 108 F.3d 1513, 1524 (2d Cir.1997); see also United States v. Lumpkins, 845 F.2d 1444, 1451 (7th Cir.1988) ("Rule 11(f) requires an adequate factual basis for a guilty plea; it does not require the judge to replicate the trial that the prosecutor and defendant entered a plea agreement to avoid."). This step--matching the facts to the legal elements of the charged crime--is designed to "protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge." McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969) (quoting Fed.R.Crim.P. 11 advisory committee notes).

The factual basis of the plea required by Rule 11(f) need not be drawn directly from the defendant. See Maher, 108 F.3d at 1524-25. The judge may look to answers provided by counsel for the defense and government, the presentence report, "or ... whatever means is appropriate in a specific case"--so long as the factual basis is put on the record. ¹ Id. at 1524; see also McCarthy, 394 U.S. at 463 n. 6, 89 S.Ct. at 1169 n. 6 (quoting 1974 Advisory Committee Note to Fed.R.Crim.P. 11(f)); United States v. Baez, 87 F.3d 805, 809 (6th Cir.) (holding that a district court need not "elicit detailed narrative responses from defendants" to satisfy Rule 11(f)), cert. denied, --- U.S. ----, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996); 1 Charles Alan Wright, Federal Practice and Procedure § 174 (2d ed. 1982 & Supp.1998). And if "the charge is uncomplicated, the indictment detailed and specific, and the [defendant's] admission unequivocal," then the reading of the indictment and the admission of the facts described in it satisfies Rule 11(f). Godwin v. United States, 687 F.2d 585, 590 (2d Cir.1982) quoted in United States v. O'Hara, 960 F.2d 11, 13 (2d Cir.1992). The Sixth Circuit has held that Rule 11(f) was satisfied when the plea agreement set out a factual basis for the charged crime, and the defendant agreed that it was accurate. See Baez, 87 F.3d at 810.

The district court's obligations under Rule 11(f) continue until it has entered judgment. If it decides there was no factual basis for a guilty plea after accepting it, the court should vacate the plea and enter a plea of not guilty on behalf of the defendant. See Fed.R.Crim.P. 11(f) ("Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry ....") (emphasis added); 1 Wright, Federal Practice and Procedure § 174.

Smith's brief on appeal raises two related issues regarding the adequacy of his guilty plea under Rule 11(f). First, Smith argues that, without regard to whether a possible necessity defense was raised, the district court failed to determine adequately that there was a factual basis for the plea, as Rule 11(f) requires. We think that there was a clear factual basis for the guilty plea, as Smith's counsel virtually acknowledged at oral argument. ² The second issue is more Smith relies heavily on Godwin, in which we...