U.S. v. Barron

• Decision Date: 13 August 1996
• Docket Number: No. A91-0115 CR (JKS).,A91-0115 CR (JKS).
• Parties: UNITED STATES of America, Plaintiff, v. William Scott BARRON, Jr., Defendant.
• Court: U.S. District Court — District of Alaska

Page 1489

940 F.Supp. 1489

UNITED STATES of America, Plaintiff, v. William Scott BARRON, Jr., Defendant.

No. A91-0115 CR (JKS).

United States District Court, D. Alaska.

August 13, 1996.

Opinion Denying Reconsideration September 25, 1996.

Mark Rosenbaum, Assistant U.S. Attorney, and Robert Bundy, United States Attorney, Anchorage, AK, for Plaintiff, United States.

Mary Geddes, Assistant Federal Public Defender, and Richard Curtner, Federal Public Defender, Anchorage, AK, for Defendant, William Scott Barron, Jr.

ORDER

Motion to Vacate Sentence and Conviction

SINGLETON, Chief Judge.

Pursuant to 28 U.S.C. § 2255 and in reliance on Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), William Scott Barron, Jr., seeks post-conviction relief from his conviction and sentencing for various drug offenses. Docket No. 76. The United States Magistrate Judge, to whom this matter was initially referred, recommends that the motion be granted. Docket No. 85. This Court has reviewed the record de novo and has exercised its independent judgment. It concludes that Barron should be permitted to withdraw his plea and proceed to trial on all of the charges initially brought or that might have been initially brought.

In the indictment returned on December 17, 1991, Barron was charged with one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1); one count of possessing cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1); and one count of using or carrying a firearm in relation to drug trafficking, 18 U.S.C. § 924(c)(1). Barron entered into a negotiated plea with the government wherein he conceded, inter alia, that the government could prove beyond a reasonable doubt each of the offenses to which he pled. He pled guilty to all three counts and received a composite sentence of 180 months imprisonment.¹ See Docket No. 54 (plea agreement).

One of the offenses to which Barron pled was a violation of 18 U.S.C. § 924(c)(1). Consistent with then Ninth Circuit law, the evidentiary basis for the plea of guilt to the violation of 18 U.S.C. § 924(c)(1) was that Barron kept a firearm available, along with his cocaine and money, in a safe in his bedroom to protect his money and drugs.

Both sides agree that the facts upon which the plea agreement rested do not state an offense under 18 U.S.C. § 924(c) as subsequently interpreted in Bailey v. United States, ___ U.S. ___, ___, 116 S.Ct. 501, 505, 133 L.Ed.2d 472 (1995) (holding that "§ 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.") (emphasis in the original).

Where a criminal defendant enters a knowing, voluntary, and intelligent plea of guilty to an offense or offenses, he or she waives, or more accurately, forfeits any nonjurisdictional defenses including any defense based upon a favorable intervening change in the law. See United States v. Broce, 488 U.S. 563, 565, 572-75, 109 S.Ct. 757, 760, 763-65, 102 L.Ed.2d 927 (1989). To enter into a voluntary plea, the defendant must understand the law in relation to the facts. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Where the facts necessary to satisfy the elements of the offense are not adequately explained to the defendant, his plea is not voluntary. See, e.g., Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). In this case, Barron understood the facts upon which the charges rested, but he could not have intelligently understood the elements of the offense because the Ninth Circuit cases upon which explanation of those elements rested now appear to have been flawed. Bailey, ___ U.S. ___, 116 S.Ct. 501.

Therefore, both parties agree that Barron's plea for violation of 18 U.S.C. § 924(c) should be vacated. See Docket Nos. 76 (Barron's motion), 82A (government's opposition), and 84 (reply); see also United States v. Andrade, 83 F.3d 729 (5th Cir. 1996); United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir.1996); United States v. Abdul, 75 F.3d 327 (7th Cir.1996).² There is a dispute between the parties, however, as to 1) whether Barron's entire plea and the underlying agreement should be vacated and the parties restored to the status quo ante, i.e., whether the government can prosecute Barron under the original indictment; or 2) whether the § 924(c) conviction should be set aside and its sentence deducted from Barron's composite sentence with the remaining sentence left intact.³ Barron argues that his conviction and sentence for violation of § 924(c) should be vacated and that the government should be precluded from either a resentencing or proceeding to trial on the original indictment. The government agrees that Barron's conviction for violating 18 U.S.C. § 924(c) cannot stand under Bailey because its theory, at that time the plea was entered, was solely and exclusively concealment of the gun in the bedroom safe to be available for protection of the money and drugs. Docket No. 82A. At that time, the government did not intend to proceed on a theory that Barron was "carrying" the weapon in question. The government contends that the proper remedy is to allow Barron to plead anew and that if Barron decides not to plead anew, the government should be able to proceed to trial on the original charges.⁴ Id.

In partial reliance on this Court's order in United States v. Dickson, Case No. A92-0081 CR (JKS), the United States Magistrate Judge, to whom this matter was initially referred, has recommended that Barron's motion be construed as a motion to withdraw his plea, and on that basis, has recommended that the motion be granted with the assumption that the government would be free to proceed on the original charges.⁵ Docket No. 85 (report and recommendation). If Barron is retried on all charges that would have been available to the prosecution if he had not pled and he is convicted, he could receive a life sentence. Barron contests this proposed resolution of his application for post-conviction relief. He argues that the various aspects of his conviction should be separately considered, and only the conviction for a violation of § 924(c) and the sentence imposed for that offense should be vacated. This would leave intact the convictions and sentences for the two other offenses and result in a net decrease in Barrons's trial sentence.

Voiding his plea and plea agreement, Barron contends, would violate the rule of United States v. Partida-Parra, 859 F.2d 629 (9th Cir.1988). In Partida-Parra, the prosecution relied upon contract principles to show that a plea agreement had been based upon a mutual mistake of fact and sought to rescind the agreement on that basis. The Ninth Circuit disagreed, holding that in the absence of a breach of the agreement by the defendant, a plea agreement accepted by the court cannot be set aside over the defendant's objection. Partida-Parra, 859 F.2d at 634-35. Partida-Parra is distinguishable from the instant case. In Partida-Parra, the defendant was perfectly content with the entire agreement reached. Barron, on the other hand, wishes to set aside part of the plea and underlying agreement.

In Dickson, this Court faced a similar issue and concluded that the plea was only infirm on the theory that the parties, in negotiating it, operated under a mutual mistake of law. United States v. Dickson, Case No. A92-0081 CR (JKS) at Docket No. 613. As a result, the defendant, whose plea was in part arguably the product of ignorance, should have the option of withdrawing his plea and pleading anew. He should not be compelled to withdraw his plea if he is content with the total sentence he initially received including the defective § 924(c) increment. Trial on dismissed counts is not affected by the double jeopardy clause of the Fifth Amendment to the United States Constitution. See United States v. Vaughan, 715 F.2d 1373 (9th Cir.1983). Withdrawal of the plea only restores the parties to the status quo ante. See, e.g., United States v. Wells, 430 F.2d 225 (9th Cir.1970). Therefore, upon withdrawal of his plea pursuant to Bailey, a defendant is essentially conceding that the plea is void and that both parties should be returned to the position they were in before a plea was entered, i.e., before jeopardy attached. Because the plea agreement would then be void due to the mutual mistake of the law at the time the plea was entered, the government would have the opportunity to reinstate the original charges. See, e.g., United States v. Pollard, 72 F.3d 66, 67-69 (7th Cir.1995); United States v. Valle, 72 F.3d 210, 217-18 (1st Cir.1995).

Because Barron did not go to trial, the Bailey analysis, while piquant, is not material to Barron's quest to prevent the government from reinstating the original charges against him. This conclusion follows from the fact that this Court does not know for certain what the government would have proved had the case gone to trial. It is impossible to determine what a jury would have found had Barron refused to plead and forced the government to prove its case. It is equally impossible to predict what sentence Barron would have received had the government tried Barron on all charges upon which they could persuade a Grand Jury to indict.

Barron is not pleased with this analysis. He would prefer a windfall. Cf. United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (where one party is permitted to revoke the plea agreement, it may not nevertheless retain the benefits of the plea agreement as "unjust enrichment"). In support of this result, he cites: DiCesare v. United States, 646 F.Supp. 544 (C.D.Calif.1986); and United States v. Huffman, No. CR-88-0234 (N.D.Calif.1996) (unreported).⁶ The courts in each of these cases reason that when a defendant pleads to a non-existent crime in return for sentencing concessions, he has fully performed his...