United States v. Spaulding, 090115 FED10, 13-1376

Docket Nº:13-1376
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL DEAN SPAULDING, Defendant-Appellant.
Attorney:Anthony Viorst, The Viorst Law Offices, P.C., Denver, Colorado, for Defendant-Appellant. James C. Murphy, Assistant United States Attorney (John F. Walsh, United States Attorney, and Stephanie N. Gaddy, Special Assistant United States Attorney, with him on the briefs), Denver, Colorado, for Plain...
Judge Panel:Before GORSUCH, SENTELLE, and MURPHY, Circuit Judges. GORSUCH, Circuit Judge, dissenting.
Case Date:September 01, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee,


MICHAEL DEAN SPAULDING, Defendant-Appellant.

No. 13-1376

United States Court of Appeals, Tenth Circuit

September 1, 2015


Anthony Viorst, The Viorst Law Offices, P.C., Denver, Colorado, for Defendant-Appellant.

James C. Murphy, Assistant United States Attorney (John F. Walsh, United States Attorney, and Stephanie N. Gaddy, Special Assistant United States Attorney, with him on the briefs), Denver, Colorado, for Plaintiff-Appellee.

Before GORSUCH, SENTELLE, [*] and MURPHY, Circuit Judges.



This case presents a significant jurisdictional question: Does 18 U.S.C. § 3231, which grants district courts original jurisdiction over federal criminal cases, allow a district court, absent government objection, to set aside a criminal judgment that contains a term of imprisonment at any time and for any reason? Or, instead, is a district court empowered to set aside such a judgment only in the situations listed in 18 U.S.C. § 3582(c)? This court concludes § 3231 does not, standing alone, confer upon a district court jurisdiction to set aside a previously imposed criminal judgment that contains a term of imprisonment. Instead, district courts have jurisdiction to alter such criminal judgments only to the extent "expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B).

Because it did not act pursuant to statutory authority or Federal Rule of Criminal Procedure 35, the district court acted without jurisdiction when it vacated Michael Spaulding's original judgment of conviction. Accordingly, all of the actions and proceedings taken in this case after that point are void. The matter is, therefore, remanded to the district court to (1) vacate the judgment it entered on August 27, 2013, and (2) reenter the judgment imposed on December 6, 2012.


A. Factual Background

In May 2011, Mark Feltz, an undercover agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, learned that A.J. Aldridge was willing to sell methamphetamine and firearms. Feltz arranged to purchase a gun and one ounce of methamphetamine. On May 18th, Feltz met with Aldridge and Aldridge's supplier, Robert Blankenship. Although Blankenship was concerned Feltz was an undercover officer, a methamphetamine transaction was consummated. Blankenship declined to sell Feltz a gun.

A short time later, Feltz contacted Blankenship and arranged to pay $2800 for two ounces of methamphetamine. They agreed to complete the transaction at a liquor store in Englewood, Colorado. Blankenship indicated he would send a relative to deliver the methamphetamine. After Feltz arrived at the liquor store, Michael Spaulding pulled into the parking lot in a GMC truck. Feltz entered the truck and completed the transaction. Spaulding was subsequently arrested and charged, along with Aldridge and Blankenship, with conspiracy to distribute methamphetamine and distribution of methamphetamine.

B. Procedural Background

1. The Original Judgment-Entered December 6, 2012

Spaulding and the government entered into a plea agreement. Spaulding agreed to plead guilty to distributing methamphetamine and to cooperate with the government in investigating and prosecuting crimes committed by him and his co-defendants. In exchange for his guilty plea and cooperation, the government agreed to (1) recommend a three-level decrease to Spaulding's offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1, and (2) move for a downward departure for substantial assistance, see id. § 5K1.1. With these sentencing recommendations, Spaulding's advisory sentencing range would be seventy-seven to ninety-six months' imprisonment.

Spaulding appeared before the district court on September 11, 2012, and pleaded guilty. The district court accepted the plea, ordered the production of a presentence report ("PSR"), and set the matter for sentencing. The PSR, which included the government's requested three-level downward adjustment to Spaulding's offense level for acceptance of responsibility, computed Spaulding's advisory guidelines range as 110 to 137 months' imprisonment. Spaulding moved for a downward variance and the government moved for a downward departure for substantial assistance.

At the sentencing hearing on December 6, 2012, the district court denied Spaulding a downward adjustment for acceptance of responsibility1 and Spaulding's motion for a downward variance. It nominally granted the government's motion for a § 5K1.1 downward departure. Rather than imposing a sentence in the seventy-seven to ninety-six month range recommended by the government, however, the district court imposed a sentence of 137 months, the top of the advisory guidelines range set out in the PSR.2 When the government asked the district court to reconcile its grant of the § 5K1.1 motion with a sentence at the top of the pre-departure advisory sentencing range, the district court stated it had accepted the motion, but was "not following [the government's] recommendation." R. Vol. 3 at 52. In support of its chosen sentence, the district court cited Spaulding's lengthy criminal history.3

The day after sentence was imposed, Spaulding filed a motion titled "Motion to Correct Sentence Pursuant to Federal Rule of Criminal Procedure 35(a), or in the Alternative to Permit Defendant to Withdraw Plea Pursuant to Federal Rule of Criminal Procedure 11(d)." He asserted the district court clearly erred in sentencing him without taking into account his acceptance of responsibility and substantial assistance to the government. Accordingly, Spaulding argued, the district court should exercise its discretion under Rule 35(a) to correct his sentence and impose a sentence of no more than ninety-six months' imprisonment. Alternatively, Spaulding requested that the district court permit him to "withdraw his plea, nunc pro tunc to December 6, 2012." He asserted such relief was authorized by Federal Rule of Criminal Procedure 11(d)(2)(b), which states a criminal defendant may withdraw his plea prior to the imposition of sentence for any "fair and just reason." Spaulding argued that if the district court,

prior to the imposition of sentence, had denied the Government's motion for a downward departure (thereby apprising him of its intention to impose a higher sentence than the one requested by the Government), he immediately would have sought leave to withdraw his prior guilty plea, and that the higher sentence would have constituted a 'fair and just reason' for the plea withdrawal.

But see Fed. R. Crim. P. 11(e) ("After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack."); United States v. Elias, 937 F.2d 1514, 1520 (10th Cir. 1991) (holding that a defendant's dissatisfaction with the length of his sentence is insufficient reason to allow withdrawal of a guilty plea). Spaulding's motion informed the district court that the government "has no objection to granting Mr. Spaulding a three-level decrease in his sentencing-guideline computation, based upon Mr. Spaulding's acceptance of responsibility, but . . . otherwise objects to the relief requested herein." The next business day, without awaiting a response from the government, the district court entered an order denying Spaulding's request to correct his sentence pursuant to Federal Rule of Criminal Procedure 35(a), but granting his request to be allowed to withdraw his guilty plea. The case was reset for a jury trial.

2. The Judgment on Appeal-Entered August 27, 2013

On March 8, 2013, Spaulding filed a "Notice of Disposition." In accord with that proposed disposition, the parties appeared for a change of plea hearing and submitted plea paperwork to the district court. Under the new plea deal, Spaulding agreed to plead guilty to a superceding information charging him with two counts of unlawfully using a communications facility in the commission of a drug transaction, in violation of 21 U.S.C. § 843. In exchange the government agreed to dismiss the pending indictment. The maximum sentence allowed for a § 843 conviction is four years, for a potential total of eight years' imprisonment if the sentences on the two counts were ordered to run consecutively. The plea agreement was not, however, conditioned on the district court imposing any particular sentence.

At the hearing, the government claimed the proposed plea was appropriate because Spaulding was similarly situated to Aldridge, who had received a sentence of 60 months' imprisonment. The government further stated that, in contrast with Aldridge, Spaulding met with the government for a full debriefing regarding this case. During that debriefing, Spaulding indicated his "remorse and embarrassment for engaging in the conduct that got him to this point." Regarding Spaulding's cooperation, the government stated:

He was prepared to testify in this case. He didn't have to. He also provided information about other drug traffickers. He didn't have to do that. And all of that was a benefit to the Government. And the [upper-guideline-range sentence] the Court [initially imposed] was not consistent with the 5K departures of other defendants in this district. . . . [I]t's not in the same ballpark, and wasn't a full acknowledgment of the risk the defendant took, and that's really what's behind this [revised plea agreement]. Is to figure out a sentence that may be appropriate, without giving him an unnecessarily heavy sentence.

The district court expressed its belief that, pursuant to United States v. Carrigan, 778 F.2d 1454 (10th Cir. 1985), it possessed discretion to accept or reject any plea bargain reached between the...

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