U.S. v. Hairston

Decision Date03 April 2008
Docket NumberNo. 05-5178.,05-5178.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jessie Ben HAIRSTON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit
522 F.3d 336
UNITED STATES of America, Plaintiff-Appellee,
v.
Jessie Ben HAIRSTON, Defendant-Appellant.
No. 05-5178.
United States Court of Appeals, Fourth Circuit.
Argued: February 1, 2008.
Decided: April 3, 2008.

[522 F.3d 337]

Jon Ian Davey, Danville, Virginia, for Appellant. Jean Barrett Hudson, Office of the United States Attorney, Charlottesville, Virginia, for Appellee. John L. Brownlee, United States Attorney, Edward A. Lustig, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

OPINION

TRAXLER, Circuit Judge:


Jessie Ben Hairston pleaded guilty to multiple charges involving the distribution

522 F.3d 338

of drugs and unlawful possession of firearms. There is no real dispute that a Rule 11 error occurred during the plea colloquy. See Fed.R.Crim.P. 11. Although the error involved only some of the counts to which Hairston pleaded guilty, we conclude that the proper remedy is to vacate Hairston's guilty pleas and convictions as to all charges and permit him to plead anew.

I.

Hairston was indicted on thirty-one counts of various drugs and firearms charges — one count of conspiracy to make a false statement on a firearm transaction form, see 18 U.S.C.A. § 371 (West 2000); eight counts of distribution of crack cocaine, see 21 U.S.C.A. § 841 (West 1999 & Supp.2007); fourteen counts of unlawful possession of a firearm by a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West 2000); and eight counts of use of a firearm during a drug trafficking crime, see 18 U.S.C.A. § 924(c) (West Supp.2007). Hairston and the government entered into a plea agreement under which the government dismissed six of the § 924(c) charges and Hairston pleaded guilty to the remaining charges. The plea agreement contemplated that Hairston might provide substantial assistance in other prosecutions and stated that the government retained discretion to determine whether it would seek a sentence reduction based on the assistance provided by Hairston.

The plea agreement spelled out the possible sentences on the charges to which Hairston would be pleading guilty. As to the § 922(g) and drug distribution charges, the agreement stated that Hairston faced a sentence of zero to ten years. The plea agreement explained that the first § 924(c) count carried with it a mandatory sentence of five years that must be served consecutively to the other sentences and that the second § 924(c) count carried with it a mandatory sentence of twenty-five years that must be served consecutively to all other sentences. Hairston thus agreed to plead guilty to charges for which he would receive (absent a substantial assistance motion by the government) a sentence of at least thirty years.

During the Rule 11 proceeding, the district court reviewed the terms of the plea agreement with Hairston. The district court recounted the minimum and maximum sentences as set forth in the plea agreement, including zero to ten years for each of the § 922(g) counts and mandatory consecutive sentences of five and twentyfive years for the § 924(c) counts. The district court concluded that there was a factual basis for the charges against Hairston and that Hairston understood the terms of the plea agreement and was freely and intelligently entering into the agreement. The district court therefore accepted Hairston's guilty plea.

During the course of the presentence investigation, the probation officer determined that Hairston should be sentenced as an armed career criminal under 18 U.S.C.A. § 924(e) (West Supp.2007), a determination that greatly affected the minimum sentence Hairston faced. As set forth in the plea agreement and during the Rule 11 colloquy, the sentence for a § 922(g) violation ordinarily is not more than ten years. See 18 U.S.C.A. § 924(a)(2) (West 2000). Section 924(e), however, imposes a mandatory minimum sentence of fifteen years for a violation of § 922(g) if the defendant has three previous qualifying convictions.1See 18

522 F.3d 339

U.S.C.A. § 924(e)(1). Hairston's designation as an armed career criminal thus meant that instead of the thirty-year minimum sentence spelled out in the plea agreement and discussed during the Rule 11 colloquy, Hairston in fact faced a minimum sentence of forty-five years — a fifteen-year minimum sentence for the § 922(g) charges, plus consecutive fiveand twenty-five-year sentences for the § 924(c) counts.

At the sentencing hearing, the district court adopted the recommendations contained in the presentence report. After the government explained why it was declining to file a substantial assistance motion, the district court, in accordance with the calculations in the presentence report, imposed a sentence of fifteen years on the § 922(g) charges2 and imposed sentences of five years and twenty-five years on the § 924(c) charges, to run consecutively to the other sentences and to each other, for a total term of forty-five years' imprisonment.

The forty-five-year total sentence seemed to take the parties by surprise. Counsel for Hairston noted that the plea agreement stated that the sentence for the § 922(g) charges was zero to ten years and that the agreement did not mention even the possibility of a mandatory fifteen-year sentence if Hairston qualified as an armed career criminal. The government explained that it had repeatedly advised Hairston that he faced a minimum sentence of thirty years, but counsel for the government acknowledged that he had simply "overlooked" the possibility that Hairston would qualify as an armed career criminal. J.A. 98. Hairston himself summarized the problem fairly effectively:

[Y]ou are telling me I waived all of my rights to take 45 years, when my lawyer told me I was waiving all my rights to take 30 years.

Now, please tell me what is going on here. Tell me I signed for 30 years and that's the 30 years that I should get or are you telling me that no one made me aware that I was signing for 45 years? That's totally against what I signed. And that's not right....

. . .

... Your Honor, I would not have signed a paper for 45 years. My kids would never see me again. I took the 30 years with the possibility that the government would keep me alive, that I would be able to spend whatever life I had left with my children.

I would never have signed for no 45 years. That's not what I was left to. understand that I was signing the paper for.

J.A. 94, 96. Hairston sought to withdraw his plea, explaining to the district court that if he faced a sentence of forty-five years, he would have a better chance if he went to trial. See J.A. 91.

After considering the parties' arguments and considering the probation officer's explanation of the sentence calculations, the district court refused to permit Hairston to withdraw his guilty pleas. The court explained that while Hairston had hoped that the government would file a substantial assistance motion and that he would receive a thirty-year sentence as a result of that motion, Hairston had. never been promised that he would receive a thirty-year

522 F.3d 340

sentence. Without the armed career criminal designation, Hairston's advisory Guidelines sentencing range for the drugdistribution and § 922(g) charges was 168 to 210 months. Because the fifteen-year sentence mandated by § 924(e) was within the otherwise applicable Guideline range, the district court believed that any misunderstanding about the minimum sentence for the § 922(g) charges was not significant.

II.
A.

The Federal Rules of Criminal Procedure require a district court, before accepting a guilty plea, to ...

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