U.S. v. Randel, 93-3047

• Decision Date: 08 November 1993
• Docket Number: No. 93-3047,93-3047
• Citation: 8 F.3d 1526
• Parties: UNITED STATES of America, Plaintiff-appellee, v. Willie Lee RANDEL, Defendant-appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1526

8 F.3d 1526

UNITED STATES of America, Plaintiff-appellee, v. Willie Lee RANDEL, Defendant-appellant.

No. 93-3047.

United States Court of Appeals Tenth Circuit.

Nov. 8, 1993.

Gregory G. Hough (Jackie N. Williams, U.S. Atty. with him on the briefs), Asst. U.S. Atty., Topeka, KS, for plaintiff-appellee.

Michael M. Jackson, Topeka, KS, for defendant-appellant.

Before SEYMOUR, BARRETT and ANDERSON, Circuit Judges.

BARRETT, Senior Circuit Judge.

Willie Lee Randel appeals from the judgment entered on his plea of guilty to a two-count indictment, charging Randel and co-defendants Milton Gene Lee, W.C. Thompson, and Ivy Simmons Gillespie with knowingly, willfully and unlawfully conspiring with intent to distribute cocaine and knowingly and intentionally possessing with the intent to distribute cocaine, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1).

On June 25, 1992, Randel entered into an oral plea agreement under which he agreed to plead guilty in exchange for the government's agreement not to file a 21 U.S.C. § 851 prior conviction information against him. Notwithstanding the agreement, the government subsequently filed a § 851 information setting forth Randel's prior conviction which the government relied upon to seek an enhanced sentence.

On the day of the trial, Randel responded to the government's § 851 information and moved for enforcement of the oral plea agreement. In answer, the government disputed that a binding offer of plea was ever made. The government argued that any action taken on June 25, 1992, was simply part of ongoing negotiations, that it had withdrawn the plea agreement offer well before Randel tried to accept it, and that the acceptance or rejection of any plea agreement rests within the sound discretion of the United States Attorney. Believing that the government was not legally permitted to withdraw its plea agreement, the district court rejected the government's arguments and entered an order granting Randel's motion for enforcement of the plea agreement. The court also denied the government's motion to reconsider. The government served notice on defendant and the court that it intended to appeal the court's refusal to let it withdraw the plea agreement. Randel then formally accepted the plea agreement and entered a plea of guilty on August 24, 1992.

On August 27, 1992, the district court entered an order stating that it was reconsidering its decision to enforce the plea agreement. The court's "order indicated that on the basis of Mabry v. Johnson, 467 U.S. 504, [104 S.Ct. 2543, 81 L.Ed.2d 437] (1984) and United States v. Papaleo, 853 F.2d 16 (1st Cir.1988), it appeared that the government was entitled to withdraw the plea bargaining proposal prior to defendant pleading guilty or taking other significant action in reliance on the offer." (R., Vol. One, Tab 183 at 3).

On September 11, 1992, the district court entered an order vacating its order enforcing the plea agreement. Thereafter, Randel filed a motion to withdraw plea. On October 26, 1992, the district court entered an order denying Randel's motion, finding that he had "failed to show a fair and just reason for withdrawing" his plea of guilty. (R., Vol. One, Tab 193 at 15). During Randel's sentencing hearing, the district court overruled his objection to a § 851 enhancement predicated on his prior Texas conviction.

On appeal, Randel contends that the district court erred in: vacating its order to enforce the plea agreement; finding his prior Texas conviction valid under state law; and finding that his prior Texas conviction was not obtained in violation of the United States Constitution.

I.

Randel contends that the district court erred after accepting his unconditional plea, in vacating its order enforcing the plea agreement. We review de novo a district court's compliance with the requirements of Fed.R.Crim.P. 11 designed to ensure that a plea is made knowingly and voluntarily. United States v. Elias, 937 F.2d 1514, 1517 (10th Cir.1991).

Randel argues that the district court, after entering an order enforcing the plea agreement and unconditionally accepting his guilty plea, was not authorized under Rule 11, Fed.R.Crim.P. 32 or the common law to subsequently enter an order vacating its order enforcing the plea agreement. During the sentencing hearing, Randel volunteered to the court that he was aware that the government intended to appeal the order enforcing the plea agreement and he assured the court that should the government prevail on appeal, he would not move to withdraw his guilty plea. Randel argues that the district court's reliance on his waiver of the right to withdraw his plea in the event that the district court's ruling enforcing his plea agreement should be reversed on appeal "ignores the fact that the district court had no authority to vacate its order [of August 24, 1992] concerning the plea agreement." (Brief for Appellant at 18). Randel cites to United States v. Olesen, 920 F.2d 538 (8th Cir.1990) for the proposition that once a district court unconditionally accepts a Rule 11(e)(1)(C) plea containing a specific sentence, it cannot subsequently, absent fraud, modify the sentence portion of the agreement.

The government responds that the district court properly relied upon Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), in ruling that the government was entitled to withdraw the plea agreement prior to its acceptance. We agree.

In Mabry, the Court considered "whether a defendant's acceptance of a prosecutor's proposed plea bargain creates a constitutional right to have the plea bargain specifically enforced." Id. at 505, 104 S.Ct. at 2545. In holding that it did not, the Court opined that:

[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.

Id. at 507-08, 104 S.Ct. at 2546 (footnote omitted). In Mabry, the district court had permitted the government to withdraw its plea agreement and only accepted the guilty plea thereafter. Here, although the district court initially refused to permit the government to withdraw the plea, it did so on a misunderstanding of the law and over the objection of the government, which preserved the legal issue for appeal. The district court was thereafter permitted to correct its legal error, just as we would have been obliged to do had the district court declined to do so and the government appealed.

Within its order vacating its prior order enforcing the plea agreement, the district court found:

During the hearing.... [i]t was not suggested, nor has it ever been suggested, that the government failed to withdraw the plea bargaining proposal before defendants accepted it. Instead, defendants objected to the fact of reconsideration itself, suggesting that the court had gone past a point of no return and that defendants' double jeopardy rights or other unlabeled rights might be violated if the court attempted to correct any legal mistake concerning the enforcement of the plea "agreement."

We disagree with the defendants' position. The plea "agreement" enforced by the court did not alter the crimes charged against defendants. Defendants agreed to plead guilty to the crimes as originally charged, and the court accepted defendants' pleas. The court ordered, however, that defendants were not subject to the enhanced sentencing provisions of § 851. This is a decision which the government is entitled to appeal under the statute....

By reconsidering our action to enforce the plea "agreement," the court is not ordering a second prosecution of defendants, nor is the court ordering multiple punishments for the same offense. As in the Hicks case [Hicks v. Duckworth, 922 F.2d 409 (7th Cir.1991) ], the prosecutor in this case made it clear that the government would appeal the court's decision in this case. Therefore, the defendants had no legitimate expectation of finality and repose. They knew if the government prevailed on appeal they would be subject to a mandatory minimum sentence of 20 years instead of a minimum mandatory sentence of 10 years....

In conclusion, on the basis of the Mabry case and other case law, the court finds that a legal error was committed when the court granted defendants' motion to enforce the plea agreement. Upon reconsideration, the court hereby vacates that decision.

(R., Vol. One, Tab 183 at 4-6).

We hold that the district court properly relied on Mabry in vacating its order enforcing the plea agreement. Consequently, the only issue left for us to decide is whether the district court abused its discretion in thereafter refusing to let Randel withdraw his guilty plea. We conclude that it did not. Randel's "inability to enforce the prosecutor's offer is without constitutional significance." Mabry at 510, 104 S.Ct. at 2548. Here it is uncontested that: the government withdrew the plea agreement offer prior to Randel's acceptance (R., Vol. One, Tab 183 at 4); Randel was aware at the time he entered his plea that the government intended to appeal the court's ruling relative to the enforcement of the plea agreement; Randel represented to the court that his guilty plea was not contingent upon the government's success on appeal; Randel agreed that if the government prevailed on appeal he waived his right to withdraw his plea and to ask for a new trial and that he would accept resentencing. Under these circumstances, Randel's "plea was thus in no sense the product of governmental deception; it rested on no 'unfulfilled promise.' " Mabry at 510, 104 S.Ct. at 2548. Moreover, nothing in the record indicates that Randel's plea was other than knowingly and voluntarily made.

We also observe that Olesen, upon which Randel relies, is distinguishable. In Olese...