U.S. v. Cannon, s. 86-5362

Decision Date31 December 1986
Docket Number86-5603 and 86-5662,Nos. 86-5362,s. 86-5362
Citation807 F.2d 1528
PartiesUNITED STATES of America, Plaintiff-Appellant, v. James Charles CANNON, Defendant-Appellee. In re UNITED STATES of America, Petitioner,
CourtU.S. Court of Appeals — Eleventh Circuit

Leon B. Kellner, U.S. Atty., Robert B. Cornell, Lawrence H. Sharf, Asst. U.S. Attys., Miami, Fla., for U.S.

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Florida.

Appeals from the United States District Court for the Southern District of Florida.

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

PER CURIAM:

This case has been before this court previously. In U.S. v. Cannon, 778 F.2d 747 (11th Cir.1985) we held "that in imposing sentence without adjudicating guilt the district court clearly exceeded the scope of its judicial authority." Id. at 749. Cannon, who was charged with four counts of firearms violations, pleaded guilty to one of the counts pursuant to a plea agreement. The district court withheld adjudication, presumably to enable Cannon to retain his hunting weapons legally. Id. at 748. We granted the government's petition for writ of mandamus because the district court exceeded its authority when it sentenced Cannon while withholding adjudication of guilt. We therefore ordered the district court to vacate its judgment and order, "thereby restoring the case to a pending status and to take further action consistent with this opinion." Id. at 749-50.

Subsequently the district court, over objection of the government, set aside Cannon's guilty plea sua sponte, ordered a new trial, and entered a judgment of acquittal when the government refused to proceed to trial. The government appealed both the order to set aside Cannon's guilty plea and proceed to trial and the judgment of acquittal. The government also filed a petition for writ of mandamus.

When a trial court fails to follow the appellate court's mandate, a writ of mandamus may issue. In re Olson, 727 F.2d 1015, 1016 (11th Cir.1984). Cannon knowingly entered a plea of guilty that met all of the prerequisites of Fed.R.Crim.P. 11. This court's prior mandate obligated the district court to impose sentence unless the facts had changed so dramatically that a withdrawal of Cannon's guilty plea was proper under Fed.R.Crim.P. 32(d). This rule provides:

If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, imposition of sentence is suspended, or disposition is had under 18 U.S.C. Sec. 4205(c), the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. Sec. 2255.

The district court exceeded its authority under Rule 32(d) to set aside a valid guilty plea.

Rule 32(d) permits the withdrawal of a guilty plea only upon the initiative of the defendant. The district court therefore lacked the authority to vacate Cannon's guilty plea. See U.S. v. Smith, 331 U.S. 469, 474, 67 S.Ct. 1330, 1333, 91 L.Ed. 1610 ...

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5 cases
  • U.S. v. DiBernardo
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 21, 1989
    ...of criminal procedure. See United States v. Smith, 331 U.S. 469, 471, 67 S.Ct. 1330, 1331, 91 L.Ed. 1610 (1947); United States v. Cannon, 807 F.2d 1528 (11th Cir.1986). In the order granting a new trial, the district judge disavowed reliance upon the only available Rule 33 standard and stat......
  • Litman v. Massachusetts Mut. Life Ins. Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 31, 1987
    ...737 F.2d 912, 919 (11th Cir.1984); In re Extradition of Ghandtchi, 697 F.2d 1037, 1038 (11th Cir.1983); see United States v. Cannon, 807 F.2d 1528, 1529 (11th Cir.1986). The writ is a tool used to keep the courts functioning within the constitutional and congressional The Supreme Court, by ......
  • General Motors Corp., In re, 92-2017
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 1, 1993
    ...authority to, inter alia, issue writs of mandamus to district courts to ensure compliance with earlier mandates. U.S. v. Cannon (In re U.S.), 807 F.2d 1528, 1529 (11th Cir.1987); Oswald v. McGarr, (In re General Motors Corp. Engine Interchange Litigation ), 620 F.2d 1190, 1195-96 (7th Cir.1......
  • U.S. v. Gomez-Gomez, GOMEZ-GOME
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 27, 1987
    ...644 F.2d 480, 486 (5th Cir. Unit A 1981).7 The outcome of the present case may be compared to the result in United States v. Cannon, 807 F.2d 1528 (11th Cir.1986), where we held that the district court lacked the authority to vacate the defendant's guilty plea. In contrast to the present ca......
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