U.S. v. Carroll, 04-1485.

• Decision Date: 21 June 2005
• Docket Number: No. 04-1485.,04-1485.
• Citation: 412 F.3d 787
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Virgil D. CARROLL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

412 F.3d 787

UNITED STATES of America, Plaintiff-Appellee, v. Virgil D. CARROLL, Defendant-Appellant.

No. 04-1485.

United States Court of Appeals, Seventh Circuit.

Argued April 20, 2005.

Decided June 21, 2005.

COPYRIGHT MATERIAL OMITTED

Paul W. Connell (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Alan G. Habermehl (argued), Kelly & Habermehl, Madison, WI, for Defendant-Appellant.

Before COFFEY, MANION, and WOOD, Circuit Judges.

PER CURIAM.

Virgil Carroll, a resident of Missouri, was arrested on June 20, 2003, at Fort McCoy, Wisconsin, where he was undergoing annual Army Reserves training. A search of his quarters revealed 35 grams of methamphetamine, related paraphernalia, more than 100 pills containing the methamphetamine precursor pseudoephedrine, and a .22 caliber derringer. The government alleged that Carroll had distributed methamphetamine on several occasions to other parties, including two minors. Carroll was charged in a superseding indictment with five counts of possession with intent to distribute and distribution of methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime.

After rejecting the government's first offer, Carroll eventually entered into a plea agreement. Although the agreement originally provided that he would plead to Counts One and Five of the superseding indictment, which charged him with distributing methamphetamine in December 2002 and possessing the derringer in connection with a drug offense, the parties altered the agreement at the last minute. Instead of pleading guilty to the December 2002 distribution charge, Carroll pleaded guilty to Count Four, which charged that he possessed with intent to distribute the methamphetamine found in his quarters in June 2003. Carroll also pleaded guilty to Count Five, the gun charge, as originally provided for in the plea agreement. During the plea colloquy, Carroll confirmed under oath that he was satisfied with the performance of his attorney, Brown, with whom he had discussed the plea agreement. He further acknowledged that he had signed the agreement and was pleading voluntarily. Carroll admitted intentionally possessing for distribution the methamphetamine found in his quarters on June 20, 2003, and possessing the .22 caliber derringer on that same date in furtherance of that drug trafficking crime. He acknowledged that the search of his quarters uncovered a variety of items indicative of methamphetamine distribution, such as a scale and towels covered with methamphetamine residue. He admitted that the items were his and that he possessed them in furtherance of his distribution activities. The court accepted Carroll's guilty pleas.

On December 15, 2003, several weeks after Carroll pleaded guilty, the probation officer released the presentence investigation report. The probation officer calculated a guideline range of 46 to 57 months on Count Four, and five years, or the statutory minimum, for Count Five, the two sentences to be served consecutively. (The probation officer later offered an amended calculation of 33 to 41 months on Count Four, to be used if the court declined to include drug quantities from incidents not encompassed by Carroll's guilty pleas; the court adopted the lower calculation at sentencing.) The presentence report cited the fact that Carroll distributed methamphetamine to minors as an aggravating circumstance that could warrant an upward departure under U.S.S.G. § 5K2.0. Brown filed, on Carroll's behalf, objections to the report on December 29, 2003, and a motion to withdraw his guilty pleas on January 5, 2004.

In an affidavit supporting the motion to withdraw, attorney Brown related that Carroll now insisted that he was innocent of the crimes to which he pleaded guilty, and that he pleaded only because Brown pressed him to do so on a short deadline. According to Carroll's chronology, as related by Brown, the lawyer received unspecified "information and additional discovery" on November 4, 2003, two days before a deadline set by the government for Carroll to accept a proposed plea agreement. Carroll discussed this new information with Brown over the telephone, since he was at home in Missouri at the time and did not arrive in Wisconsin until the day of the plea hearing. Brown summarized Carroll's asserted grounds for withdrawing his pleas as (1) Carroll never had enough time to review the new discovery before the government's deadline; and (2) Brown rendered ineffective assistance of counsel by overstating the amount of time Carroll would face if he went to trial and by "strong-arming" him to accept the agreement.

On February 12, 2004, Carroll supplemented his motion to withdraw through new counsel. Carroll reiterated his claim of actual innocence, specifying that the basis of this defense was that he had not been in Wisconsin at all during December 2002, when the actions giving rise to Counts One and Two of the superseding indictment allegedly occurred. This, according to Carroll, not only made it impossible that he was guilty on those counts, but also Counts Three, Four, and Five, although he admitted that he was in Wisconsin on the dates when those offenses allegedly occurred. Carroll also elaborated on his claim of ineffective assistance of counsel, alleging that he was able to contact Brown only indirectly, through his assistant, from the time of the superseding indictment in mid-September 2003 until early November, when Brown called him in Missouri to say that he "had received new discovery which was `bad.'" Again, Carroll did not elaborate on the nature of this discovery, or its perceived impact. Brown, according to Carroll, advised that he accept the plea agreement because a guilty verdict at trial could result in a sentence as high as 85 years' imprisonment. Carroll indicated that Brown held out the plea agreement as an alternative that would result in "a sentence of six years, of which he would actually serve as little as four years." Carroll then protested his innocence to Brown, as he maintains that he had done all along, to which Brown replied that he had not subpoenaed any witnesses or prepared any defense, and that if Carroll went to trial, "he would be surely convicted and face 85 years in prison." Carroll said that, having not seen the discovery, he then agreed to plead guilty to Counts One and Five, so Brown faxed him the plea agreement, which he signed.

Carroll's supplement also details his version of the events of the plea colloquy. According to Carroll, just before the plea hearing he met with Brown and an FBI agent who was there to return personal property seized from his barracks quarters during the June 2003 search. Carroll alleged that while he was distracted by the return of his personal property, attorney Brown had him sign a piece of paper without reading it. The document changed Carroll's plea agreement to Counts Four and Five (the June 2003 methamphetamine possession stemming from the search of his quarters and the firearm charge) rather than Counts One and Five (the distribution charge from December 2002 when, Carroll alleges, he was not in Wisconsin). When he heard the charges read in court he asked Brown about the change; Brown "simply said not to worry and to just get through the plea without doing anything to upset the judge." Carroll explained that he repeatedly expressed to Brown "his unease and distress at pleading guilty to something he did not do," but Brown replied that he should "simply do the plea, and any problems could be resolved later on appeal in the court of appeals." Shortly thereafter, Carroll continued, he received the presentence report, at which point he "realized for the first time the actual sentence he was likely to receive, and the nature and importance of the way sentencing guidelines calculations worked in determining that sentence." Carroll then moved to withdraw his pleas.

The district court conducted a hearing on the motion just prior to sentencing, where Carroll testified that he had lied at the plea colloquy. Carroll elaborated that he falsely admitted guilt because attorney Brown had told him that "if I didn't do it they wouldn't accept the plea and if they didn't accept the plea I would be found guilty and have to do eighty-five years." Brown also testified and denied the allegation, especially the figure of 85 years. After Carroll, Brown, members of Carroll's family, and one of the minors to whom Carroll allegedly distributed methamphetamines testified and were cross-examined, the district court rejected the motion. The judge explained that Carroll, during his plea hearing, had been "one of the more credible witnesses" that he had seen, and that his demeanor was "direct, nonequivocating, [and] not coached." The court found that Carroll's explanation of the events culminating in his guilty pleas was unsatisfactory and not credible, citing in particular the dispute over whether his attorney raised the specter of an 85-year sentence, which the court found dubious. Finding that the Brown's performance...