United States v. Detloff, s. 14–2001/2002.

• Decision Date: 24 July 2015
• Docket Number: Nos. 14–2001/2002.,s. 14–2001/2002.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Scott R. DETLOFF, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

794 F.3d 588

UNITED STATES of America, Plaintiff–Appellee

v.Scott R. DETLOFF, Defendant–Appellant.

Nos. 14–2001/2002.

United States Court of Appeals, Sixth Circuit.

July 24, 2015.

ON BRIEF:Kevin M. Schad, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant.

C. Barrington Wilkins, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: CLAY and MCKEAGUE, Circuit Judges; BERTELSMAN, District Judge.^*

OPINION

CLAY, Circuit Judge.

Defendant Scott Detloff (“Defendant”) appeals from his conviction and sentence, entered pursuant to a Rule 11 plea agreement, for mail theft, in violation of 18 U.S.C. § 1708. He also appeals from the 24–month custodial sentence imposed for his violation of supervised release. The government concedes that the sentence for the supervised release violation resulted from a mistaken guidelines calculation.

For the reasons that follow, we DISMISS Defendant's appeal of his conviction and sentence for mail theft, and we VACATE the sentence imposed for violation of supervised release and REMAND to the district court for recalculation of the guidelines and resentencing.

BACKGROUND

Defendant was stopped by police while driving in Novi, Michigan on October 11, 2009 after a records check indicated that his license plate had been reported stolen. Defendant fled on foot, but eventually surrendered after the police, using a dog, gave chase. A search of Defendant's vehicle led to the discovery of eight falsified driver's licenses and more than thirty pieces of mail, most of which were addressed to businesses in Wixom, Michigan. Defendant stipulated in the Rule 11 plea agreement in this case that he possessed these items of mail knowing them to have been stolen. The day following his arrest, police conducted a search of Defendant's home in Howell, Michigan that revealed “one-hundred and twelve (112) stolen business checks; check stock; a Fargo Pro LX laminator; a Hewlett Packard scanner; a Hewlett Packard laser printer; and, a magnetic strip encoder.” (R. 59, Plea Agreement, PageID 198.)

The traffic stop resulted in separate state charges based on Defendant's conduct in attempting to evade arrest. In December 2009, Defendant pled guilty to resisting a police officer in violation of Mich. Comp. Laws § 750.81d. He was sentenced to serve a term of imprisonment between three and fifteen years.

A federal complaint for mail theft was filed on August 29, 2011. For reasons that are not fully explained in this appeal and are ultimately unnecessary to our disposition of the case, nine months passed before Defendant was brought in for an initial appearance on May 23, 2012.¹ On April 18, 2013, a federal grand jury returned an indictment charging Defendant with (1) the use of a counterfeit access device, in violation of 18 U.S.C. § 1029(a)(1) ; (2) aggravated identity theft, in violation of 18 U.S.C. § 1028A ; (3) the commission of bank fraud, in violation of 18 U.S.C. § 1344 ; (4) theft of United States mail, in violation of 18 U.S.C. § 1708 ; and (5) possession of stolen checks, in violation of 18 U.S.C. § 513a.

Defendant entered a plea of guilty to the charge of mail theft on March 13, 2014, pursuant to a Rule 11 plea agreement. In exchange for his plea, the government agreed to dismiss the remaining charges. The parties agreed to a guidelines range of 57 to 71 months, reserving Defendant's right to dispute two elements of the guidelines calculation at sentencing. Specifically, in paragraph 2(B), the plea agreement carves out a right for Defendant to dispute (1) a two-level enhancement based on the premise that there were ten or more victims of Defendant's criminal conduct, and (2) the aggregate amount of loss calculated by the government. Defendant also agreed, as part of the Rule 11 plea, to waive appeal of his conviction, and to waive appeal of his sentence unless it exceeded the agreed-to range of 57 to 71 months. In the written version of the Rule 11 plea, Defendant also agreed to “waive any appeal of the court's final orders related to the sentencing guidelines disputes, referred to in Paragraph 2(B).” (R. 59 at 198–99.)

The district court reviewed the appeal-waiver provisions as part of the Rule 11 colloquy on March 13, 2014. Directing Defendant to the corresponding page of the Rule 11 agreement, the district court read out loud, “Defendant, being you, waives any right he may have to appeal his conviction. If the sentence imposed does not exceed the maximum allowed by part three of this agreement, the defendant also waives any right he may have to appeal his sentence.” (R. 93, Plea Transcript, PageID 450.) These statements accurately conveyed the appeal waiver. The district court, however, made a misstatement in reading the next sentence, stating that “defendant agrees not to waive any appeal of the Court's final order or orders related to the sentencing guidelines disputes referred to in paragraph 2(b).” (Id. ) (The written version, of course, stated the opposite—that Defendant did waive the right to appeal the district court's final orders of the two disputed guidelines issues.) The district court then asked Defendant, “Sir, did you hear what I just read to you?” (Id. ) Defendant answered that he did, and in response to the district court's inquiry, confirmed that he did not have any questions about the provision. After concluding the Rule 11 colloquy, the district court accepted Defendant's plea and took the agreement under advisement. At the same hearing, Defendant entered a plea of guilty to the charged supervised release violation.

On June 25, 2014, three months after he entered his guilty plea, Defendant filed a pro se motion to withdraw his guilty plea and dismiss the indictment. Defendant argued that the government's handling of the case, and in particular the lengthy delays between the federal complaint, the indictment, and his initial appearance, violated the Interstate Agreement on Detainers, the Speedy Trial Act, and the Speedy Trial Clause of the Sixth Amendment. Defendant disclosed that his appointed attorney, Mark Satawa, had refused to file the motion on his behalf based on Satawa's position that no violation had occurred.

On July 3, 2014, Satawa filed a motion to withdraw as defense counsel, citing conflicts with his client over Satawa's refusal to file the motion to withdraw the guilty plea or to file certain objections to the presentence report that Satawa believed to lack a proper foundation in the facts and the law. The motion informed the district court that Satawa believed his continued representation of Defendant would conflict with his obligations under Michigan Rules of Professional Conduct and jeopardize Defendant's constitutional right to effective counsel.

At a hearing on the motion on July 14, 2014, Satawa reiterated his concerns about his client's insistence that he file motions and objections that he believed to be improper.

Defendant informed the court that he wanted Satawa to continue representing him. The district court denied Satawa's motion to withdraw as defense counsel, and ordered that Satawa act as stand-by counsel on Defendant's pro se motion to withdraw the plea agreement and on Defendant's pro se objections to the presentence report.

The sentencing hearing was held two days later, on July 16, 2014. At the beginning of the proceedings, the district court informed Defendant that he would be denying the motion to withdraw his guilty plea in a written order. The district court entertained objections to the presentence investigation report from both Satawa and Defendant, took argument on the appropriate sentence, and sentenced Defendant to 60 months in prison on the mail theft charge, to run concurrently with any undischarged state sentence. On two occasions during this proceeding Satawa expressed disagreement with concerns or arguments raised pro se by Defendant, as will be further discussed below.

The hearing then turned to the supervised release charge. Satawa initially informed the court that his client disputed the classification of his violation as Grade A, but quickly reversed course and informed the court that the violation was indeed properly classified as Grade A. The district court imposed a 24–month sentence, at the bottom of the guidelines range for a Grade A violation, to be served consecutively to the mail theft sentence.

Defendant timely noticed his appeal. We granted Satawa's motion to withdraw, and appointed new counsel to represent Defendant on appeal.

DISCUSSION

I. Waiver of Appeal as to Defendant's Mail Theft Conviction and Sentence

The government argues that Defendant's waiver of the right to appeal in his Rule 11 plea agreement precludes our review of his claims that the district court abused its discretion in denying his motion to withdraw his plea and that the district court's sentencing decision was procedurally unreasonable. We agree.

We apply de novo review to the issue of whether a criminal defendant has waived appellate rights in a valid plea agreement. United States v. Murdock, 398 F.3d 491, 496 (6th Cir.2005). If valid, Defendant's waiver of his right to appeal his conviction extends to his claim that the district court abused its discretion in denying his motion to withdraw his guilty plea. United States v. Toth, 668 F.3d 374, 378–79 (6th Cir.2012). A defendant may challenge a waiver of appeal rights “on the grounds that it was not knowing and voluntary, was not taken in compliance with Fed.R.Crim.P. 11, or was the product of ineffective assistance of counsel.” United States v. Atkinson, 354 Fed.Appx. 250, 252 (6th Cir.2009) (citing In re Acosta, 480 F.3d 421, 422 (6th Cir.2007) ).

Here, Defendant argues that the district court's misstatement during the plea colloquy violated the requirement in Rule 11(b)(1)(N) that the district court “must inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal.” Because Defendant did not object...