In re United States

• Decision Date: 26 April 2022
• Docket Number: 21-1318
• Parties: IN RE: UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

32 F.4th 584

IN RE: UNITED STATES of America, Petitioner.

No. 21-1318

United States Court of Appeals, Sixth Circuit.

Argued: October 21, 2021

Decided and Filed: April 26, 2022

ARGUED: Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Petitioner. Gerald K. Evelyn, Detroit, Michigan, for Respondent Ashley Townsend. John Gleeson, DEBEVOISE & PLIMPTON LLP, New York, New York, for Respondent Hon. David M. Lawson. ON PETITION FOR WRIT OF MANDAMUS AND REPLY: Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Petitioner. ON RESPONSE: Gerald K. Evelyn, Robert E. Higbee, Detroit, Michigan, for Respondent Ashley Townsend. John Gleeson, Matthew Specht, Monisola Salaam, DEBEVOISE & PLIMPTON LLP, New York, New York, for Respondent Hon. David M. Lawson. Bradley R. Hall, CRIMINAL DEFENSE ATTORNEYS OF MICHIGAN, Lansing, Michigan, for Amicus Curiae.

Before: SUTTON, Chief Judge, BATCHELDER and LARSEN, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge.

Before us is a petition from the United States for a writ of mandamus directed to the United States District Court for the Eastern District of Michigan. The petition poses questions about a district court's authority to comment on pending plea-bargain agreements and to reject an agreement once it is finalized.

At a pretrial hearing, the district court informed the United States and the Defendant that it had a longstanding "practice" of rejecting plea agreements with certain plea-bargaining terms. The parties thereafter negotiated a plea agreement in private and decided to include the very terms that the court had stated that it disfavored. The court rejected the agreement, and the United States filed this petition, claiming that the court violated Rule 11 of the Federal Rules of Criminal Procedure and abused its discretion. We AGREE and GRANT the petition.

I.

In February 2020, the United States indicted Defendant Ashley Townsend on four counts: one count for being a felon in possession of a firearm (Count One), two counts of possession with intent to distribute controlled substances (Counts Two and Three), and one count of possessing firearms in furtherance of the crimes charged in Counts Two and Three (Count Four). If Townsend were convicted at trial on all charges, he would face a minimum aggregate prison term of 20 years and a maximum term of life in prison.

In August 2020, the district court held a pretrial hearing. During the hearing, the parties requested an adjournment of the final pretrial conference because they were engaged in plea discussions. In response, the district court expressed its belief that the U.S. Attorney's Office for the Eastern District of Michigan had recently adopted a policy of offering only plea deals that contain sentencing-appeal and collateral-review waivers (collectively, "appeal waivers"). The court then stated on the record its disapproval of these types of waivers and its intention to continue rejecting plea agreements that contain them:

My practice over the years has not—has been not to accept plea agreements that have waivers of rights to collateral review or the right to appeal a sentence determination or sentencing issue that is disputed, and I continue to—I intend to continue that practice.

So if it's the Government's position that the plea agreement must contain that language, I will not accept the plea agreement. I will reject it. So you may think about having to prepare for trial nonetheless. Just keep that in mind as you engage in your discussions.

Afterwards, the parties negotiated a plea agreement in private, and, on August 31, 2020, presented it to the court via email. In it, Townsend agreed to plead guilty to Counts Three and Four, and the United States agreed to dismiss Counts One and Two and withdraw its 21 U.S.C. § 851 prior-felony information. The agreement reduced Townsend's mandatory minimum sentence by half, to an aggregate of 10 years. It also contained a joint recommendation that Townsend be classified as a career offender within the meaning of U.S.S.G. § 4B1.1 and the United States's recommendation that the total sentence imposed should not exceed 300 months. Most importantly for purposes of this appeal, the agreement included two appeal waivers:

12. Appeal Waiver. The defendant waives any right he may have to appeal his conviction on any grounds. If the defendant's sentence of imprisonment does not exceed 300 months, the defendant also waives any right he may have to appeal his sentence on any grounds.

13. Collateral Review Waiver. The defendant retains the right to raise claims alleging ineffective assistance of counsel, as long as the defendant properly raises those claims by collateral review under 28 U.S.C. § 2255. The defendant also retains the right to pursue any relief permitted under 18 U.S.C. § 3582(c), as long as the defendant properly files a motion under that section. The defendant, however, waives any other right he may have to challenge his conviction or sentence by collateral review, including, but not limited to, any right he may have to challenge his conviction or sentence on any grounds under 28 U.S.C. § 2255, 28 U.S.C. § 2241, or Federal Rule of Civil Procedure 59 or 60.

These waivers do not preclude Townsend's appealing his sentence if it exceeds the United States's recommendation of 300 months, or seeking relief for ineffective assistance of counsel ( 28 U.S.C. § 2255 ), compassionate release ( 18 U.S.C. § 3582(c) ), or relief based upon prosecutorial misconduct by the United States.

Shortly after receiving the parties’ email, the court responded that it would not accept the plea agreement. The court's email stated: "[The court] has reviewed the Rule 11 Agreement and will not agree to its terms. If it doesn't get amended, we'll proceed with the pretrial conference on [September] 2nd." The following day, the United States and Townsend filed a joint motion asking the court to accept the plea agreement. The court then cancelled the plea hearing and appointed a retired United States District Judge for the Eastern District of New York to file a response as amicus curiae . Six months later, after full briefing from amicus curiae and the parties, the court issued a written opinion denying the parties’ joint motion and rejecting the proposed plea agreement.

The United States filed a petition for writ of mandamus in this court, seeking an order directing the district court to "accept or reject the [parties’] plea agreement without regard to [its] ‘practice’ against [appeal waivers]." In the petition, the United States describes on- and off-the-record statements by the district court in other cases expressing its policy against permitting appeal waivers. Townsend filed a brief agreeing with the United States that mandamus relief is appropriate. The district court responded in opposition.

II.

The United States asks us to issue a writ of mandamus directing the district court to reconsider the parties’ plea agreement and cease its "practice" of prohibiting all plea agreements containing appeal waivers. To issue that writ, we must first decide whether the district court participated in the parties’ plea negotiations and whether it improperly rejected the resulting plea agreement; and, if it did either, whether mandamus is the appropriate remedy.

Our jurisdiction to issue a writ of mandamus comes from the All Writs Act, 28 U.S.C. § 1651, which allows us to "restrain[ ] the[ ] excesses" of "judges of any inferior court." In re Univ. of Mich. , 936 F.3d 460, 466 (6th Cir. 2019) (quoting 3 William Blackstone, Commentaries on the Laws of England *110–11); see also In re Acker , 596 F.3d 370, 372 (6th Cir. 2010) ("The traditional use of the writ ... has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." (quotation omitted)). Mandamus, however, is an extraordinary remedy. In re Univ. of Mich. , 936 F.3d at 466. It is appropriate only where there is a clear abuse of discretion or a judicial usurpation of power. Cheney v. U.S. Dist. Ct. for D.C. , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). For us to issue a writ, the United States must "(1) have no other adequate means of obtaining relief, (2) demonstrate a right to issuance that is clear and indisputable, and (3) show that issuance of the writ is appropriate under the circumstances." In re Univ. of Mich. , 936 F.3d at 466.

This is one of those rare cases in which mandamus is warranted. First, the United States has no other adequate means of obtaining relief. The United States has only a limited right to direct appeal, see 18 U.S.C. § 3731, and that right does not extend to interlocutory appeal. Second, the need for mandamus is clear and indisputable. The district court violated Rule 11 ’s prohibition on judicial involvement in plea negotiations and abused its discretion by not offering case-specific reasons for rejecting the parties’ plea agreement. Third, mandamus is appropriate because the district court clearly overstepped its authority, and this writ presents important and likely reoccurring questions.

A. No Other Adequate Means of Obtaining Relief

The United States has no other adequate means of obtaining relief. "[A] mandamus lies, if there be no other adequate , specific , legal remedy." In re Univ. of Mich. , 936 F.3d at 466 (quoting Marbury v. Madison , 5 U.S. (1 Cranch) 137, 152, 2 L.Ed. 60 (1803) ). If we deny mandamus, the United States cannot file an interlocutory appeal under 18 U.S.C. § 3731, nor can it later file a direct appeal if Townsend pleads to the indictment, is convicted by a jury, or is acquitted after trial. See In re United States , 945 F.3d 616, 624 (2d Cir. 2019). Even if the United States could challenge the rejection of this plea agreement on direct appeal, the United States would "be damaged or prejudiced in a way not correctable on appeal." See John B. v. Goetz , 531 F.3d 448, 457 (6th Cir....