522 F.3d 336 (4th Cir. 2008), 05-5178, United States v. Hairston

Docket Nº:05-5178.
Citation:522 F.3d 336
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jessie Ben HAIRSTON, Defendant-Appellant.
Case Date:April 03, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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522 F.3d 336 (4th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,


Jessie Ben HAIRSTON, Defendant-Appellant.

No. 05-5178.

United States Court of Appeals, Fourth Circuit.

April 3, 2008

Argued: Feb. 1, 2008.

Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (CR-04-8)

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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.


TRAXLER, Circuit Judge.

Jessie Ben Hairston pleaded guilty to multiple charges involving the distribution

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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.


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 twenty-five 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.1 See 18 U.S.C.A. § 924(e)(1).

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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 five- and 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) charges2and 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...

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