U.S. v. Wills

• Decision Date: 29 June 1989
• Docket Number: No. 88-3291,88-3291
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robin F. WILLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 823

881 F.2d 823

UNITED STATES of America, Plaintiff-Appellee, v. Robin F. WILLS, Defendant-Appellant.

No. 88-3291.

United States Court of Appeals, Ninth Circuit.

Submitted June 29, 1989 ^*.

Decided Aug. 9, 1989.

John C. Lynn, Lynn, Scott, Hackney & Jackson, Boise, Idaho, for defendant-appellant.

George W. Breitsameter, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before FARRIS, NOONAN and LEAVY, Circuit Judges.

OVERVIEW

LEAVY, Circuit Judge:

Robin Fredrick Wills appeals his sentence following his guilty plea to one count of credit card fraud under 18 U.S.C. Sec. 1029(a)(2) (Supp. II 1984). Wills contends that under the sentencing guidelines the trial judge had no discretion but to order that Wills serve his sentence consecutively to an unrelated state sentence, and that failure to advise him of this fact at his plea hearing violated Rule 11 of the Federal Rules of Criminal Procedure. Wills also contends that the trial judge incorrectly calculated his sentence under the guidelines. We affirm.

FACTS AND PROCEEDINGS

At the time of this offense, Wills was incarcerated at the Idaho State Correctional Institution at Boise for an unrelated state offense. Wills obtained various credit card numbers from a credit company by posing as a corporation. Through an outside co-defendant, Kimberly Ann Stark Story ("Stark"), he contacted a private investigator. Stark convinced the investigator to withdraw cash from the banks corresponding to the credit card numbers. The investigator agreed to perform the transactions after being told that Stark was working for a famous billionaire who needed to make payments to a certain woman without the information leaking out to his wife, and that the best way to do it was for the investigator to withdraw the cash, put it in his account, then make cash payments as required.

The investigator withdrew $12,000 on June 3-6, 1988, $17,500 on June 7-8, and $22,500 on June 16-22. He then transferred cash to Stark (after deducting a fee). However, the investigator grew suspicious after being asked to perform the third withdrawal and contacted the FBI. Stark was apprehended after the investigator delivered her the cash. She implicated Wills as the mastermind of the scheme. The monies from this third transaction were recovered.

A three-count indictment against Wills followed, each count corresponding to one of the transactions. Wills pleaded guilty to Count One of the indictment, and the two remaining counts were dropped pursuant to a plea bargaining agreement.

At the time of Wills' plea hearing, the Ninth Circuit had held the recently-enacted sentencing guidelines unconstitutional. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), vacated and remanded, --- U.S. ----, 109 S.Ct. 859, 102 L.Ed.2d 984 (1989). At the plea hearing, the trial judge informed Wills of the maximum penalty for his offense outside the guidelines and informed him of the relevant factors that would be considered under the guidelines. The judge did not inform Wills that a sentence under the guidelines would run consecutively to the sentence Wills presently served.

At the sentencing hearing, the judge sentenced Wills to a consecutive sentence of 41 months under the guidelines and, in case the Supreme Court held the guidelines unconstitutional, to ten years under 18 U.S.C.

Sec. 1029. Wills' sentence under the guidelines was partly calculated by considering Wills' offenses as exceeding $50,000.

STANDARD OF REVIEW

Since Wills contends that his sentence is invalid as a matter of law, review is de novo. United States v.Jaramillo-Suarez, 857 F.2d 1368, 1369 (9th Cir.1988). The district court's findings of fact underlying the sentence determination are reviewed for clear error. 18 U.S.C. Sec. 3742(d) (Supp. II 1984).

DISCUSSION

I. VALIDITY OF THE GUILTY PLEA

The Supreme Court upheld the validity of the sentencing guidelines after the district court sentenced Wills. Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Wills therefore does not challenge the validity of the guidelines in this appeal. Instead, Wills contends that his guilty plea is invalid because he was not informed, at his plea hearing, that the trial judge had no discretion but to order that Wills' sentence for this offense be served consecutively to the state sentence Wills currently served.

A. Rule 11

Wills argues the trial judge had to inform him, before accepting his plea, that any resulting sentence would be consecutive to his state sentence. Rule 11(c) of the Rules of Criminal Procedure states that

[b]efore accepting a plea of guilty ... the court must address the defendant personally in open court and inform the defendant of ... the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term and, when applicable, that the court may also order the defendant to make restitution....

The Rule nowhere requires that a defendant be advised that the applicable sentence for the offense charged must be imposed consecutively, if such is the case. Nevertheless, this court has held that, to satisfy the due process requirement that the plea be voluntary, "a defendant is entitled to be informed of the direct consequences of the plea," although it is not necessary to inform him of "all possible collateral consequences." Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.1988) (citation omitted).

A "direct consequence" of a plea presents "a definite, immediate and largely automatic effect on the range of the defendant's punishment." Id. at 236 (citations omitted). Thus, a defendant must be informed of a mandatory special parole term. United States v. Harris, 534 F.2d 141, 142 (9th Cir.1976). On the other hand, if the matter is discretionary, it is "collateral." Sanchez v. United States, 572 F.2d 210, 211 (9th Cir.1977) (defendant need not be informed of possibility of parole revocation since "parole board has authority separate and distinct from that of the sentencing judge and may in its discretion determine whether the remainder of petitioner's preexisting sentence will be consecutive to or concurrent with the new sentence imposed by the trial judge.").

Thus, both parties seem to agree that this issue turns on whether, in this case, the trial judge had discretion to impose a consecutive or concurrent sentence. If the judge had no discretion, the plea was invalid because the consecutive sentence was a direct consequence of the plea of which the defendant had to be informed. See United States v. Meyers, 451 F.2d 402, 404-05 (9th Cir.1972).

B. Title 18, Title 28, and the guidelines

Wills correctly points out that the guidelines and the applicable federal statute, i.e. 18 U.S.C. Sec. 3584(a) (Supp. II 1984), conflict as to whether the trial judge has discretion to impose a concurrent or consecutive sentence. ¹ Additionally, the statutes delegating power to the Sentencing Commission to promulgate the guidelines, 28 U.S.C. Secs. 991-998 (Supp. II 1984), also seem to conflict with section 3584(a).

(1) Section 3584(a), providing for imprisonment for multiple sentences, provides that

if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.... Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

18 U.S.C. Sec. 3584(a) (emphasis added).

(2) Section 994(a), regarding the duties of the Sentencing Commission, provides in part: "The Commission ... shall promulgate ... (1) guidelines ... for use of a sentencing court in determining the sentence to be imposed in a criminal case, including ... (D) a determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively[.]" 28 U.S.C. 994(a)(1)(D).

(3) Section 994(b)(1) provides that "[t]he Commission, in the guidelines promulgated pursuant to subsection(a)(1), shall, for each category of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of Title 18, United States Code." 28 U.S.C. 994(b)(1).

(4) Finally, guideline 5G1.3 provides that, "[i]f at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences." United States Sentencing Commission, Sentencing Guidelines and Policy Statements Sec. 5G1.3 (April 13, 1987) (emphasis added). The Commission's commentary states that this guideline "reflects the statutory presumption that sentences imposed at different times ordinarily run consecutively. See 18 U.S.C. Sec. 3584(a)." Id.

Wills urges that because the trial judge chose to sentence him under the guidelines, this court should hold that he acted without discretion, and that therefore he violated Rule 11. We disagree.

We hold that a judge has discretion to impose a concurrent or consecutive sentence, as a matter of law, under section 3584(a). First, section 3584(a) unambiguously confers that discretion upon the trial judge. Although section 994(a)(1)(D) apparently would allow the Commission to eliminate the discretion, section 994(b)(1) requires that the Commission's guidelines be consistent with the provisions of Title 18, which include section 3584(a). If the guidelines are to be consistent with Title 18, the discretion cannot be taken away.

Second, although the language of the guidelines would deprive the judge of discretion, the Sentencing...