U.S. v. Stephens

Decision Date02 July 1990
Docket NumberNo. 89-2267,89-2267
Citation906 F.2d 251
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Herbert Murray STEPHENS, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Patricia L. Blake, Jennifer J. Peregord (argued), Detroit, Mich., and Mark C. Jones, Asst. U.S. Atty., Flint, Mich., for plaintiff-appellee.

David W. Wright, Bloomfield Hills, Mich., for defendant-appellant.

Before KENNEDY and RYAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.

KENNEDY, Circuit Judge.

Appellant Herbert Murray Stephens appeals the District Court's refusal to allow him to withdraw his plea for harboring and concealing a person from arrest in violation of 18 U.S.C. Sec. 1071. He claims that he did not enter the plea "knowingly and intelligently" because he was unaware that his sentence would be based on the amount of drugs involved in the conspiracy charge of the person he was hiding. We find that appellant entered the plea agreement knowingly and intelligently and therefore AFFIRM the District Court.

Appellant's son, Todd Stephens, was charged with conspiracy to distribute cocaine and damaging a vehicle with explosives. Aware that a warrant for his son's arrest had been issued, he concealed his son from the police in May and June of 1989. Following a federal grand jury indictment charging him with violating 18 U.S.C. Sec. 1071, appellant entered into a written guilty plea agreement on August 23, 1989. The agreement provided that "any sentence of incarceration shall not exceed the mid-point limit of the guideline range that the court finds to be applicable." At the hearing when the plea was accepted, the court did not make any estimate of what that range would be and advised appellant that the maximum sentence was five years. Appellant stated that he was aware any representation of possible ranges by his attorney, the prosecutor, or probation officer would not be binding on the court's determination of sentence. Appellant was then scheduled to be sentenced on October 24, 1989.

Appellant filed a motion to withdraw his plea on October 12, 1989 after discovering the amount of cocaine involved in his son's conspiracy charge. Section 2X3.1 of the Sentencing Guidelines provides that the sentence for violating 18 U.S.C. Sec. 1071 is determined by taking the base offense level of the underlying offense and reducing it by 6 levels. Appellant's base offense level was thus tied directly to his son's offense level, which was in turn determined by the amount of cocaine with which his son was involved or known by the son, or reasonably foreseen by him. Application Note 1, Sentencing Guidelines Sec. 2D1.4. Appellant claims that at the time he entered his plea, he was not aware of the amount of cocaine with which his son was involved. After appellant entered into his plea agreement, his son pleaded guilty to the cocaine charge and, based on the amount he had trafficked in, his base offense level was set at 30. This made appellant's base offense level 24 and subjected him to a sentencing range of 46-57 months under the Guidelines. Sentencing was postponed and on October 31, the District Court held a hearing on the motion to withdraw. The District Court denied appellant's motion and accepted the plea and plea agreement, sentencing him to 51 months imprisonment, which was 9 months less than the statutory maximum. See 18 U.S.C. Sec. 1071. Appellant maintains that his plea agreement and his plea were not entered into knowingly and intelligently because he was not aware of the quantity of drugs in the underlying offense and that he never would have pleaded guilty had he known he would be subject to such a long sentence.

Under Fed.R.Crim.P. 32(d), a court "may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason." Permitting a withdrawal is within the discretion of the district court, and we will reverse only for an abuse of that discretion. United States v. Goldberg, 862 F.2d 101, 103 (6th Cir.1988). The appellant has the burden of proving that withdrawal from a plea is justified. United States v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 133 (1988).

Appellant argues that he did not knowingly and intelligently enter into the plea agreement because 1) he did not know his sentence would be tied to the amount of cocaine involved in his son's offense, and 2) even if he did know, he had no way of knowing what that amount would be because he entered into the plea agreement and entered his plea before his son was tried or pleaded guilty. Appellant contends his "unknowing" and "unintelligent" entry into the plea agreement constituted a fair and just reason for withdrawal and that the District Court's refusal to allow withdrawal was an abuse of discretion.

Appellant first argues that the District Court was required to inform appellant what the possible range of sentence would be and that section 2X3.1 of the Guidelines tied his sentence to the amount of cocaine involved in another case with another defendant of which appellant had no knowledge. Appellant says that because he was unaware of the amount of drugs involved in his son's case at the time he entered into the agreement, he could not have knowingly and intelligently chosen to plead. We disagree with appellant's argument. First, his contention that he was unaware that his ultimate sentence would be tied to the amount of drugs involved in his son's conspiracy charge 1 is belied by his counsel's statements at the hearing on his motion to withdraw the plea agreement. His counsel clearly indicated that in estimating appellant's probable Guideline range, they calculated it by assuming an amount of drugs involved in his son's offense:

[Appellant's Counsel]: ... I asked Mr. Stephens many times before we agreed to get into this Rule 11 what he thought the amount of cocaine was that his son may have been involved with. And Mr. Stephens indicated he really didn't know. I know I asked [the Assistant U.S. Attorney]. He told me he thought it was a substantial amount but I don't think it was ever told to me what the actual amount of the conspiracy with Todd was.

When we were figuring this out before the Rule 11 I can see [say(?) ] I put to Mr. Stephens well let's assume that Todd's base level is a 20 which would have been not kilos we wouldn't be talking about [sic] and we figured it at that. I had no idea that it was going to be 30.

These statements stand as clear evidence that appellant and his counsel were fully aware that his sentence for harboring and concealing his son would be tied to the amount of cocaine involved in his son's conspiracy. We therefore hold to be without merit appellant's...

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