U.S. v. Barnett, CR 02-4099-MWB.
| Decision Date | 05 April 2006 |
| Docket Number | No. CR 02-4099-MWB.,CR 02-4099-MWB. |
| Citation | 426 F.Supp.2d 898 |
| Parties | UNITED STATES of America, Plaintiff, v. Lathan Matrell BARNETT, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Daniel W. Gillogly, John T. Ryan, Office of the US Attorney, Chicago, IL, Kevin C. Fletcher, US Attorney's Office, Sioux City, IA, for Plaintiff.
Can this court entertain a criminal defendant's motion to withdraw his guilty plea, which asserts that one count of the indictment against him fails to invoke the jurisdiction of the court or to state an offense, when the motion is made for the first time on remand for resentencing? If the court can consider such a motion at this juncture, is there any merit to the defendant's contention that he should be allowed to withdraw his guilty plea to a charge of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), on the ground that the predicate offenses alleged here, making, receiving, or possessing sawed-off and short-barreled shotguns, in violation of 26 U.S.C. §§ 5841, 5845, 5861, and 5871, are not "crimes of violence"? These intriguing questions are now before the court.
The Eighth Circuit Court of Appeals succinctly stated the factual background to the charges on which defendant Lathan Matrell Barnett currently faces resentencing:
On October 8, 2002, Barnett fatally shot 17-year-old Shelley Gonnerman in an apartment in Sheldon, Iowa. Barnett immediately left the apartment, but soon returned to retrieve the sawed-off shotgun that he had used to kill Gonnerman before fleeing the scene once again. Barnett later returned to the apartment a second time and led police officers to the site where he had abandoned the shotgun, which had a partially obliterated serial number. The officers then searched the apartment, finding two additional sawed-off shotguns (including one with a completely obliterated serial number). A separate search of Barnett's apartment produced miscellaneous drug paraphernalia.
United States v. Barnett, 410 F.3d 1048, 1049 (8th Cir.2005) (footnote omitted).
Barnett was convicted in Iowa state court of involuntary manslaughter for the killing of Ms. Gonnerman and was sentenced to five years in prison. In addition to the state manslaughter charge, Barnett was charged with several federal offenses pursuant to an initial indictment handed down on October 24, 2002.
After various motions to dismiss and various superseding indictments, a Grand Jury eventually returned a Third Superseding Indictment against Barnett on April 22, 2004, charging him with the following offenses: (1) in Count 1, using and carrying a short-barreled and shortened-length firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(A)(iii) and 924(c)(1)(B)(i), where the predicate "crime of violence" was one or more of the offenses charged in Counts 2 and 3; (2) in Count 2, making or aiding and abetting the making of one or more unregistered firearms, identified as short-barreled shotguns, in violation of 26 U.S.C. §§ 5841, 5845, 5861(f) and 5871; (3) in Count 3, receiving and possessing one or more unregistered firearms, identified as short-barreled shotguns, in violation of 26 U.S.C. §§ 5841, 5845, 5861(d) and 5871; and (4) in Count 4, possessing one or more firearms, identified as short-barreled shotguns, then being an unlawful user of controlled substances, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).
On May 13, 2004, defendant Barnett appeared before United States Magistrate Judge Paul A. Zoss and entered a plea of guilty to Counts 1, 2, 3 and 4 of the Third Superseding Indictment. On that same date, Judge Zoss filed a Report and Recommendation recommending that this court accept Barnett's guilty plea. The court accepted Barnett's plea of guilty to all four counts on May 28, 2004.
The court originally sentenced Barnett on August 4, 2004. After declaring the United States Sentencing Guidelines unconstitutional, the court sentenced Barnett to the mandatory minimum sentence of 120 months on the charge in Count 1 of "using and carrying a firearm during and in relation to a crime of violence." However, the court directed that the sentence on . Count 1 be served concurrently with Barnett's Iowa state sentence for involuntary manslaughter. The court further sentenced Barnett to 36 months on each of the charges in Counts 2, 3, and 4, but directed that these sentences be served concurrently with each other and consecutively to the sentence on Count 1.
The government appealed the sentences imposed on Barnett and the Eighth Circuit Court of Appeals reversed and remanded for resentencing. See United States v. Barnett, 410 F.3d 1048 (8th Cir.2005). More specifically, the appellate court held that this court had plainly erred by making the sentence on Count 1 run concurrently with the sentence on Barnett's state court conviction, because the appellate court found that doing so was contrary to 18 U.S.C. § 924(c), which "`forbids a federal district court to direct that a term of imprisonment under that statute run concurrently with any other term of imprisonment, whether state or federal.'" Barnett, 410 F.3d at 1050-51 (quoting United States v. Gonzales, 520 U.S. 1, 11, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997)). The appellate court also found that this error seriously affected substantial rights. Id. at 1051. The appellate court also held that this court had imposed sentences on Counts 2, 3, and 4, that were well below the Guidelines sentencing range for those offenses without a substantial assistance motion from the government and without stating reasons for doing so. Id. The appellate court also found that there was grave doubt that this court would have imposed such sentences had the court been aware of its duty to consult the Guidelines. Id. at 1051-52. Therefore, the appellate court reversed and remanded the case to this court "for resentencing in accordance with the views set forth in [the appellate court's] opinion and the holding in Booker." Id. at 1052.
Following remand, Barnett, who is now represented by different counsel, filed on October 7, 2005, a Motion To Withdraw Plea, of Guilty To Count 1 Of The Third Superseding Indictment, which is now before the court. The government filed a timely resistance to defendant Barnett's motion.
In his motion, Barnett seeks to withdraw his guilty plea to Count 1 on the following grounds: (1) that Count 1 fails to state a crime upon which a plea could be entered, because the offense charged did not involve Barnett in a "crime of violence"; (2) that violations of 26 U.S.C. §§ 5841, 5845, 5861, and 5871 cannot be classified as "crimes of violence" as required for such violations to be predicate offenses for Count 1; (3) that Count 1 does not meet the tests of what Barnett calls "active mens rea" for a "crime of violence" as required by Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); and (4) that the plea hearing did not set forth any basis for finding that Barnett "used and carried" the short-barreled shotgun in relation to the predicate offenses, but only that Barnett "possessed" that firearm at the same time that he "possessed" other illegal firearms. Barnett asserts that his first three grounds require dismissal of Count 1 as a matter of law, and if Count 1 charged a federal offense, that his fourth ground shows that his plea was factually invalid. Barnett contends that this court can hear his motion, on remand for resentencing, because "fair and just" reasons exist to allow withdrawal of his plea, citing Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure. In essence, Barnett contends that his motion is a challenge to the subject matter jurisdiction of the court, which can be raised at any time, even on resentencing after remand.
In response, the government contends that this court cannot hear Barnett's motion, because a defendant's guilty plea can only be set aside after sentencing on direct appeal or collateral attack, citing Rule 11(e). The government also argues that...
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