U.S. v. Davis

• Citation: 900 F.2d 1524
• Decision Date: 16 April 1990
• Docket Number: No. 89-1086,89-1086
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Duvalier Antonio DAVIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1524

900 F.2d 1524

UNITED STATES of America, Plaintiff-Appellee, v. Duvalier Antonio DAVIS, Defendant-Appellant.

No. 89-1086.

United States Court of Appeals Tenth Circuit.

April 16, 1990.

Rehearing Denied May 23, 1990.

William D. Welch, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty. and Kathryn Meyer, Asst. U.S. Atty., with him on the brief), Denver, Colo., for plaintiff-appellee.

Philip A. Cherner of Stayton & Brennan, Denver, Colo., for defendant-appellant.

Before McKAY, ANDERSON, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Duvalier Antonio Davis appeals the judgment and sentence entered against him following his plea of guilty to possession with intent to distribute a schedule II controlled substance, crack cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(A). Vol. I tab 28. On appeal, Davis argues: (1) the trial court abused its discretion in refusing to permit a conditional plea; (2) the trial court erred in denying the defendant's motion to suppress evidence; and (3) the trial court abused its discretion by refusing to depart from the sentencing guidelines. Appellant's Brief at i. We affirm.

BACKGROUND

On November 18, 1988 a federal grand jury in Denver, Colorado indicted Davis on three counts: (I) possession with intent to distribute more than 50 grams of crack (a mixture or substance containing cocaine base) in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(iii); (II) employing or using a person under the age of 18 years of age to aid and abet the possession with intent to distribute more than 50 grams of crack in violation of 21 U.S.C. Secs. 845b(a)(1) and 845b(b); and (III) distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Vol. I, tab 1. Davis initially pleaded not guilty to the charges, Vol. I tab 2 and filed three motions to suppress evidence. Vol. I tabs 5, 8, and 9. After an evidentiary hearing, the trial court denied those motions. Vol. II at 59.

Thereafter, Davis negotiated a plea agreement with the government. Under the agreement, Davis agreed to enter a conditional guilty plea to Count I of the indictment, reserving his right to appeal the court's pretrial orders pursuant to Fed.R.Crim.P. 11(a)(2). In exchange for the guilty plea, the government agreed to dismiss Counts II and III of the indictment. Vol. I tab, 14. The trial court, however, refused to accept Davis' conditional guilty plea. Vol. IV at 6. On February 1, 1989, Davis pleaded guilty to Count I of the indictment without any qualifications, and the government dismissed the remaining two counts of the indictment. Vol. IV at 8, 13. The court subsequently imposed a sentence of 135 months of incarceration, a five year supervised release, and a fifty-dollar assessment. Vol. I, tab 28, Vol. VI at 38. The sentence was within the applicable guideline range.

EFFECT OF THE GUILTY PLEA

Davis argues the trial court erred in denying two of the three motions to suppress evidence. Appellant's Brief at 10. In response, the government argues that because Davis pleaded guilty, the trial court's rulings on the suppression motions are nonreviewable. Appellee's Brief at 7. Further, the government argues that Davis' guilty plea precludes appellate review of the trial court's refusal to accept the conditional plea. We agree with the government.

By entering a voluntary ¹ plea of guilty, Davis waived all nonjurisdictional defenses. United States v. Nooner, 565 F.2d 633, 634 (10th Cir.1977). The plea of guilty in Nooner foreclosed from review the trial court's earlier order denying the motion to suppress. Id. Nooner applied Supreme Court precedent as follows:

In Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), the Supreme Court, reaffirming the trilogy of cases Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), declared as follows:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [supra ].

Id.; See also, United States v. Huff, 873 F.2d 709, 712 (3rd Cir.1989) (challenge to voluntariness of statements barred after entry of guilty plea); United States v. Montilla, 870 F.2d 549, 552 (9th Cir.1989) ("as a general rule, a guilty plea erases claims of constitutional violation arising before the plea"). Because the effect of the guilty plea was to waive all nonjurisdictional defenses, we need not and do not review the trial court's denial of Davis' suppression motions.

Further, Davis' entry of an unconditional and voluntary guilty plea forecloses review of the court's refusal of the conditional plea. The law affords Davis neither a right to enter a conditional plea nor a right to enter a plea bargain. See Mabry v. Johnson, 467 U.S. 504, 510, 104 S.Ct. 2543, 2548, 81 L.Ed.2d 437 (1984) (defendant's "inability to enforce the prosecutor's offer is without constitutional significance"); Montilla, 870 F.2d at 553 ("Montilla had no constitutional right to a plea bargain") (citing United States v. Osif, 789 F.2d 1404, 1405 (9th Cir.1986)); Martinez v. Romero, 626 F.2d 807, 809 (10th Cir.), cert. denied, 449 U.S. 1019, 101 S.Ct. 585, 66 L.Ed.2d 481 (1980) (petitioner has "no constitutional right to a plea bargain on his own terms"). We agree with the observation of the Ninth Circuit in Montilla: "A forced choice between asserting a constitutional right at trial and accepting the government's offer, while undoubtedly difficult, is not unconstitutional." 870 F.2d at 553 (citation omitted). While some may find this forced choice harsh, we find it to be lawful and hold that by pleading guilty to Count I of the indictment, Davis foreclosed appellate review of the suppression rulings and also the trial court's refusal to accept the conditional plea.

CONDITIONAL PLEA

Presuming he is entitled to appellate review of the issue, Davis argues the trial court abused its discretion by refusing to permit him to enter a conditional plea. Appellant's Brief at 6. ² We do not agree. Fed.R.Crim.P. 11(a)(2) provides:

Conditional Pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pre-trial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.

Rule 11 "creates no enforceable 'right' to enter a conditional plea." United States v. Daniel, 866 F.2d 749, 751 (5th Cir.1989) (quoting United States v. Fisher, 772 F.2d 371, 374 (7th Cir.1985)). Rather, the rule vests the trial court with discretion to permit entry of the conditional plea. Neither legislative history ³ nor case law indicates that a criminal defendant is entitled to enter a conditional plea.

Davis contends that by adopting Fed.R.Crim.P. 11(a)(2), Congress rejected certain challenges ⁴ to the rule, and that "it would not be proper for a trial court to reject a conditional plea for any of those reasons alone." Appellant's Brief at 8. Davis further argues that the court's rationale for rejecting the conditional plea "amounted to a blanket prohibition on all conditional pleas" and that "failure to exercise discretion is itself an abuse of discretion." Appellant's Brief at 10.

Davis' argument is flawed in at least two respects. First, the fact that Congress rejected arguments disapproving of conditional pleas does not mean that Congress implicitly required a court to make findings before refusing or accepting a conditional plea or that Congress thereby restricted the bases by which a district court can deny a conditional plea. Davis is correct in observing that Rule 11(a)(2) does not "state what factors are to be considered by the court in guiding its discretion." Appellant's Brief at 8. The trial court has absolute discretion with regard to accepting or rejecting the conditional plea. The court can refuse to accept a conditional plea for any reason or for no reason. ⁵

Second, the trial court's refusal of the conditional plea in this case was not a "blanket prohibition" of the plea. Even though the law does not require an explanation, the trial court stated his reasons for refusing the plea in this case:

... I am not going to go ahead and impose a penalty in this case after a presentence report and the Defendant can shop and see what he wants to do, and then take an appeal on the pretrial orders.

The Defendant would have to withdraw unequivocally all motions before the Court accepts the plea. Considering the nature of what was inherent in those motions, I will not entertain a Rule 11 matter, so an interlocutory appeal can be taken up while the Defendant is serving his time....

Vol. IV at 6. Consequently, Davis' argument is not based entirely on fact. Even if the trial court's ruling amounted to a blanket prohibition of all conditional pleas, we are not persuaded that such a judicial outlook would constitute error in any given case. Rule 11(a)(2) provides the court a procedural option to accept a conditional plea. We know of no requirement placed on the court to make findings when accepting or refusing a conditional plea.

SENTENCING GUIDELINES

Finally, Davis argues the court abused its discretion in refusing to depart downward from the guidelines. He contends that because he made an offer of cooperation to the...