United States v. Scott
| Decision Date | 08 December 2017 |
| Docket Number | Nos. 16-1434,16-1561,s. 16-1434 |
| Citation | 877 F.3d 42 |
| Parties | UNITED STATES of America, Appellee, v. Michael David SCOTT, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Lisa Aidlin for appellant.
David B. Goodhand, Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, with whom William D. Weinreb, Acting U.S. Attorney, Victor A. Wild, Assistant U.S. Attorney, Ryan M. DiSantis, Assistant U.S. Attorney, Kenneth A. Blanco, Acting Assistant Attorney General, U.S. Department of Justice, and Trevor N. McFadden, Acting Principal Deputy Assistant Attorney General, U.S. Department of Justice, were on brief, for appellee.
Before Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
Michael David Scott claims, among other things, that the district court acted improperly in rejecting a plea agreement he had negotiated with the government, in not allowing him to negotiate and submit a new agreement, and in sentencing him before he read the presentence report ("PSR"). Finding no combination of error and prejudice sufficient to set aside Scott's sentence, we affirm.
In August 2010, the government charged Scott with wire and bank fraud in violation of 18 U.S.C §§ 1343 – 44 and unlawful monetary transactions in violation of 18 U.S.C. § 1957, all as described in our opinion issued today affirming Scott's conviction on those charges. See United States v. Scott, No. 15-2405. While those charges were pending, the government secured Scott's indictment on additional wire fraud charges arising out of acts committed after his first indictment. Scott was arrested and detained pending trial.
In May 2015, Scott pled guilty in the first case, without a plea agreement. In November 2015, the district court sentenced him to 135 months' imprisonment in that case. Two months later, Scott and the government entered into a plea agreement in this second case pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). If accepted by the court, the agreement would have bound the court to sentence Scott to six months' imprisonment on the new wire fraud charges, to be served concurrently with the term of imprisonment from the prior case, plus six additional months to be served consecutively to Scott's other sentences in accord with 18 U.S.C. § 3147, which mandates that an individual convicted of a crime committed while on release pending trial serve an additional sentence. The agreement also called for $49,000 in restitution, an amount that did not include attorneys' fees and interest for the victims, and likewise did not include losses related to certain uncharged conduct. The district court conducted a change-of-plea hearing and conditionally accepted the plea agreement, but noted that it would reserve final acceptance or rejection until it had considered the PSR. Sentencing was set for March 25, 2016.
On March 23, a group of victims filed a sentencing memorandum, urging the district court to reject the proposed plea agreement and impose, at a minimum, a consecutive prison term of at least twelve months and a restitution award that included attorneys' fees and interest. The next day, the district court docketed a notice stating: The next day, counsel for Scott told the district court at the sentencing hearing that he had conferred with the government and prepared "a revised agreement to submit to you with what we interpreted as the considerations within your order." Neither counsel disclosed the terms of the proposed submission, and the district court rejected the effort, saying:
[A]s I understand [ Rule 11 ], ... the defendant has a choice when the judicial officer rejects a (C) plea: He can withdraw his plea and go to trial.... Or he can choose not to withdraw his plea and go forward with the sentencing as of that moment. There is no new plea to be negotiated.
The record reflects that Scott and his attorney then had a private conversation, following which Scott's attorney, in Scott's presence, told the court that Scott intended to maintain his guilty plea and move forward with sentencing. The district court then proceeded with the sentencing, ultimately imposing a sentence of forty-one months' imprisonment, with twenty-nine months attributed to the wire fraud charge to be served concurrently with Scott's 135-month sentence and twelve months attributed to section 3147 to be served consecutively to both of Scott's other sentences. In short, as a practical matter, this sentence meant that Scott would likely serve six additional months of prison time beyond the amount to which he and the government had conditionally agreed. The court also ordered Scott to pay a total of $265,535 in restitution to various victims identified by their initials in the PSR.
At the conclusion of the sentencing hearing, the following exchange occurred:
Scott contends that the district court committed six specific errors: it improperly rejected his plea agreement based on an erroneous understanding of the relevant law; it impermissibly prevented him from securing and submitting a new plea agreement after his first was rejected; it impermissibly participated in plea discussions; it wrongly denied him a continuance; it imposed a sentence even though he had not read the PSR; and it failed to provide adequate notice of certain information upon which it relied. Additionally, Scott argues that the cumulative effect of these errors was sufficient to deny him a full and fair sentencing hearing, in violation of his due process rights. We address each argument separately.
We consider first Scott's contention that the district court's rejection of the plea agreement was substantively improper because, in his view, the district court relied on an incorrect interpretation of relevant law. Specifically, he submits that the victims' sentencing memorandum erroneously claimed that the portion of the sentence to run as a consecutive add-on under 18 U.S.C. § 3147 had to last a minimum of twelve months, and that the district court relied on this incorrect interpretation of section 3147 in rejecting the plea agreement.1
Scott did not present this argument to the district court, so we review his claim for plain error. See United States v. Uribe-Londoño, 409 F.3d 1, 3 (1st Cir. 2005). In order to succeed on plain error review, Scott must show: "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." Id. at 4 (quoting United States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005) ).
Mere speculation that a court may have erroneously viewed its hands as tied by section 3147 serves poorly as a claim that error even occurred, much less that such error is plain. The district court said nothing to suggest that it felt bound by law to extend the agreed-upon six-month consecutive sentence to twelve months. As we have noted, we "presume that federal judges know the law." United States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014). The fact that section 3147, correctly applied, allows the sentence imposed buttresses this conclusion. We take the district court at its word that in rejecting the plea agreement, it had simply concluded, well within its discretion, that only a twelve-month consecutive sentence would be sufficient. In this, there was no error, plain or otherwise.
We turn next to Scott's argument that the district court erred by not withholding sentencing until he had a chance to finalize a new plea agreement. Following the rejection of the plea agreement, Scott's counsel represented to the court that he and the government had reached a revised agreement. The district court, however, stated that it could not accept such an agreement, because in its view, once a district court rejects a plea agreement, the defendant has only two choices: maintain a guilty plea unconditionally and proceed to sentencing, or withdraw the plea and proceed to trial. The district court stated on the record that under its view of Federal Rule of Criminal Procedure 11(c), "[t]here is no new plea to be negotiated." Scott argues on appeal that the district court was incorrect and that he should have been permitted to negotiate a new plea agreement.
The question of whether the government and a defendant may negotiate and submit a new plea agreement after one is rejected by the court appears to be a matter of first impression in this circuit. Rule 11(c)(5) specifies that in rejecting a plea agreement made pursuant to Rule 11(c)(...
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