U.S. v. Aguilera, 80-5762
| Decision Date | 27 August 1981 |
| Docket Number | No. 80-5762,80-5762 |
| Citation | 654 F.2d 352 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leonel AGUILERA, Defendant-Appellant. Summary Calendar. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Humberto J. Aguilar, Sp. Asst. Public Defender, Miami, Fla., for defendant-appellant.
Kenneth W. Lipman, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before RONEY, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.
Appellant Leonel Aguilera and two others were indicted in the United States District Court for the Southern District of Florida with: conspiracy to possess methaqualone with intent to distribute; possession of methaqualone with intent to distribute; and distribution of methaqualone, in violation of 21 U.S.C.A. §§ 846, 841(a)(1) and 18 U.S.C.A. § 2. Counsel was appointed for Aguilera and filed his notice of appearance with the court on April 7, 1980. On July 30, 1980, after a trial of approximately one and one-half days, Aguilera was found guilty by a jury on all counts and was sentenced to thirty-six months on each count, the sentences to run concurrently, and twenty-four months' special parole on Counts II and III, these special parole terms also to run concurrently.
Preliminary plea negotiations between Aguilera's counsel and counsel for the United States resulted in an offer by the Government's counsel to drop Counts II and III and to make no sentence recommendations if Aguilera pleaded guilty to Count I. However, this offer had a specific time limit upon which it had to be accepted by Aguilera. 1
The offer was not accepted by Aguilera in a timely fashion and no proceedings were ever scheduled or conducted under Fed.R.Crim.P. 11(e)(2).
When the case was called for trial on July 28, 1980, counsel for Aguilera made an oral motion asking the trial judge either to enforce the plea offer that Aguilera had then decided to accept or to grant a continuance of the trial. Both motions were denied.
The record in this case reflects that the offer of Government's counsel to drop Counts II and III in exchange for a plea of guilty on Count I was never accepted by Aguilera and no indication was ever given by counsel for Aguilera until June 21, 1980, that the offer would be accepted; shortly thereafter Government's counsel advised that since the time for accepting the offer had expired the offer had been withdrawn.
Clearly the trial judge was correct in refusing to order "specific performance" of the plea offer which had neither been accepted nor relied upon by appellant. Even if there had been an agreement between the defendant Aguilera and the Government, under Rule 11(e)(2) the trial judge retains the discretion to accept or reject plea bargains, see United States v. Bean, 564 F.2d 700, 702 (5th Cir. 1977), and the defendant would not have been justified in relying on the bargain until the trial judge approved it:
Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court.
United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980).
Certainly, when the prosecution makes an agreement within its authority and the defendant relies on it in good faith, the court will not let the defendant be prejudiced as a result of that reliance. United States v. Goodrich, 493 F.2d 390, 393 (9th Cir. 1974)....
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