U.S. v. Barron

Decision Date16 April 1999
Docket NumberNo. 96-36058,96-36058
Citation172 F.3d 1153
Parties99 Cal. Daily Op. Serv. 2765, 1999 Daily Journal D.A.R. 3598 UNITED STATES of America, Plaintiff-Appellee, v. William Scott BARRON, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

David M. Porter, Assistant Federal Public Defender, Sacramento, California, for the defendant-appellant.

Thomas M. Gannon, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, District Judge, Presiding. D.C. No. CV-96-00096-JKS.

Before: HUG, Chief Judge, BROWNING, FLETCHER, REINHARDT, NOONAN, O'SCANNLAIN, TROTT, T.G. NELSON, HAWKINS, SILVERMAN, and GRABER, Circuit Judges.

Opinion by Judge NOONAN; Dissent by Judge GRABER; Partial Dissent and Partial Concurrence in the Dissent by Judge TROTT.

NOONAN, Circuit Judge:

When a defendant moves under 28 U.S.C. § 2255 to set aside an illegal conviction and a sentence once imposed as part of a plea agreement, should the district court set aside the entire plea agreement, returning the parties to their pre-plea agreement position, or are other remedies provided by § 2255? Our answer to the first alternative is No and to the second, Yes.

PROCEEDINGS

On December 17, 1991 William Scott Barron, Jr. of North Pole, Alaska was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), one count of possession of 21 ounces of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). The maximum punishment under the first count was ten years, while the mandatory minimum sentence if the defendant had been convicted of a violent felony or serious drug offense on three previous occasions was 15 years. 18 U.S.C. § 924(a)(2) and (e). The maximum under the second count was life imprisonment and the mandatory minimum was ten years. 21 U.S.C. § 841(b)(1)(A). The sentence under the third count was five years consecutive to any term of imprisonment imposed. 18 U.S.C. § 924(c)(1).

On April 20, 1992 Barron entered into a plea agreement with the United States. The parties acknowledged that the agreement was under, and controlled by, Federal Rule of Criminal Procedure 11(e)(1)(A) and (C). 1 Barron agreed to plead guilty to all three counts. The United States agreed to "not seek further prosecution arising out of the facts underlying the present indictment"; to acknowledge that Barron had accepted responsibility; to not seek an enhanced penalty under 18 U.S.C. § 924(e); and to acknowledge that Barron reserved his right to appeal the ruling on his motion to suppress. The parties agreed that Counts one and two should be grouped pursuant to U.S. Sentencing Guidelines Manual § 3D1.2 (1992) in making the sentencing calculation.

On the same date as the agreement was made the district court conducted a hearing at which the government stated that there were "other evidence and other charges that could be brought. We are promising to refrain from bringing those charges, as part of the consideration, and, again, we construe that as part of 11(e)(1)(A), whenever the government is agreeing not to pursue certain charges." The court referred to Rule 11(e)(1)(C) and inquired what was "the specific sentence that you've agreed on as appropriate" under that rule. The government replied that there was no agreement as to a specific sentence but that "we have agreed that the defendant would not be sentenced pursuant to 924(e) [the armed career criminal statute], which provides a penalty of fifteen years to life." Defense counsel noted that, otherwise, there was "at least a possibility that the career offender statute could apply." The prosecutor added that "the relevant conduct in this case, we do believe could potentially bring the case into the 10-to-life provisions of 841(b)."

The court carefully interrogated the defendant as to whether he knew what he Three years later the Supreme Court held that to use a gun for purposes of § 924(c)(1) means "active employment" of the firearm in relation to the drug offense. Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Barron then moved under 28 U.S.C. § 2255 to set aside his conviction and sentence imposed under 18 U.S.C. § 924(c)(1). The basis for the motion was as follows: "Ground One: Recent Supreme Court decision in Bailey v. United States makes the Petitioner's conviction under 18 U.S.C. § 924(c) invalid and it should therefore be vacated and dismissed." Ground One was the sole basis for Barron's motion.

was pleading to and the numerous constitutional rights such as trial by jury and the right to appeal that he was giving up. The court then formally accepted Barron's plea. Sentencing was postponed until receipt of the presentencing report. On June 25, 1992 a sentencing hearing was held. Barron's objections to the presentence report were explored. The court sentenced Barron to ten years on the first two counts to run concurrently and to a consecutive term of five years on the gun count.

In argument to the court Barron noted that he had admitted concealing a gun in a safe merely accessible to him, but not to using the gun in the sense required by Bailey. The government conceded that the facts did not justify his conviction on the gun count.

The magistrate judge recommended that Barron's motion under 28 U.S.C. § 2255 be granted but that at the same time the plea agreement should be rescinded. The district court agreed with those recommendations. According to the district court, Barron by the plea agreement had forfeited "any non-jurisdictional defenses including any defense based upon a favorable intervening change in the law." The district court, however, went on to hold that Barron could have the plea agreement set aside on the ground that it was not knowing and voluntary because of ignorance of the law declared by Bailey. On motion for reconsideration the district court explained its reasoning:

This Court reasoned that a guilty plea waives, or more accurately forfeits, any right to bring a post-conviction relief petition except one challenging the voluntariness of the plea.... The Court would therefore have rejected Barron's § 2255 petition but for the Court's conclusion that Bailey undermined the prior finding of voluntariness. The Court was, and is, prepared to give Barron relief, but solely on the basis that his prior plea was involuntary. The proper relief is to withdraw his plea and return the parties to the status quo ante.

The court concluded its original order: "Barron's motion for § 2255 relief should be conditioned on his timely withdrawal of his plea."

Barron appealed. A panel of this court unanimously affirmed. 127 F.3d 890 (9th Cir.1997). On petition for rehearing, the court divided. 136 F.3d 675 (9th Cir.1998). The full court granted rehearing en banc. 138 F.3d 809 (9th Cir.1998).

ANALYSIS

At the outset it is suggested that Barron must show cause and prejudice in order to be in a position to raise the issue he now presents in his § 2255 motion. Bousley v. United States, 523 U.S. 614, ----, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). The government did not raise this objection in the district court or in its briefs on appeal. Ordinarily, the government's failure to raise the petitioner's procedural default at the appropriate time waives the defense. See Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992). We therefore will usually not allow the government to raise a petitioner's default for the first time on appeal, when it did not take the opportunity to do so before the district court. See Turner v. Duncan, 158 F.3d 449, 454-55 (9th Cir.1998); Francis v. Rison, 894 F.2d 353, 355 (9th Cir.1990). Because there are no extraordinary circumstances present in this case which would suggest that justice would be served by overlooking the government's omission, we treat the procedural default as waived. See Gonzalez v. United States, 33 F.3d 1047, 1049 (9th Cir.1994); cf. Paradis v. Arave, 130 F.3d 385, 390 (9th Cir.1997).

The government argues that Bousley 's clarification of the applicability of procedural default rules in this context represented a new development in the law, which excuses its procedural default. But the government acknowledges that the issue resolved by Bousley was not "so novel that its legal basis [was] not reasonably available to counsel." Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). At the time the Supreme Court granted certiorari in Bousley, the government was litigating the applicability of procedural default rules to challenges based on Bailey in several circuits. See In re Hanserd, 123 F.3d 922 (6th Cir.1997); Lee v. United States, 113 F.3d 73 (7th Cir.1997); United States v. Barnhardt, 93 F.3d 706 (10th Cir.1996). In Bousley itself, the government had raised the procedural default issue at both the district court and the circuit court level. See Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir.1996), rev'd sub nom. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Bousley was issued five months before the government's appellate brief was due in this case, yet the government did not raise the procedural default issue here.

Section 2255 grants a prisoner in custody the right "at any time" to bring a motion "to vacate, set aside or correct the sentence" upon the ground that the "sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Of these several grounds, Barron chose one, viz., that the sentence was...

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