U.S. v. Dees

• Decision Date: 01 October 1997
• Docket Number: No. 96-50956,96-50956
• Citation: 125 F.3d 261
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Janet DEES, Defendant-Appellant. Conference Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 261

125 F.3d 261

UNITED STATES of America, Plaintiff-Appellee, v. Janet DEES, Defendant-Appellant.

No. 96-50956

Conference Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 1, 1997.

Richard L. Durbin, Jr., Joseph H. Gay, Jr., Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.

J. Michael Cunningham, Midland, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before KING, HIGGINBOTHAM and DUHE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Janet Dees pled guilty to a bank fraud charge and now appeals her sentence. By our own motion, we raise but ultimately reject a jurisdictional challenge to Dees's conviction based on the fact that a magistrate judge conducted her plea proceeding. We dismiss Dees's appeal on the issue that she does press, a miscalculation of her sentence because Dees in her plea agreement waived her right to an appeal.

I.

Dees participated in a scheme to fraudulently obtain bank loans for the financing of mobile-home sales. The government filed a single count information against Dees, charging her with conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1344.

Dees decided to plead guilty. She entered into a plea agreement on August 19, 1994, in which she agreed to waive her right to appeal whatever sentence the district court imposed on her. She also consented to have a magistrate judge take her plea. On August 22, 1994, a federal magistrate judge conducted a plea proceeding pursuant to Rule 11 of the Federal Rules of Criminal Procedure. The magistrate judge performed the standard allocution, probing Dees to ascertain whether her plea was knowing and voluntary. Dees confirmed to the magistrate judge that she understood the plea agreement and appreciated its consequences, particularly the waiver of appeal. Satisfied with Dees's responses, the magistrate judge recommended to the district court that it accept her plea. After doing so, the district court sentenced Dees to fifteen months in prison.

Dees then brought this appeal, arguing that the district court erred in sentencing her on the basis of the entire loss attributable to the four-year-long conspiracy. She contends instead that she should be sentenced only for the losses that accrued during the eighteen-month period in which she actively participated in the scheme.

II.

Dees does not challenge the magistrate judge's authority to conduct her plea allocution. Because our court has the independent duty to determine whether jurisdiction lies in a case, however, we may consider jurisdictional issues by our own motion. See United States v. Mendoza, 491 F.2d 534, 536 (5th Cir.1974). If the magistrate judge did not have the authority to entertain Dees's plea, then neither her plea, her waiver of appeal, nor her sentence is valid.

Case law on the issue of magistrate judges' taking of guilty pleas is not well-developed. Only the Second, see United States v. Williams, 23 F.3d 629 (2d Cir.), cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 547 (1994), and Tenth Circuits, see United States v. Ciapponi, 77 F.3d 1247 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 1839, 134 L.Ed.2d 942 (1996), have addressed the problem directly. ¹ Yet judges have long expressed reservations about the practice. In 1991, the Judicial Conference's Committee on the Administration of the Magistrate Judges System rejected a proposal to endorse magistrate judges' taking of guilty pleas:

The Committee expressed a strong view that judicial duties in critical stages of a felony trial, particularly the acceptance of guilty pleas and conducting sentencing proceedings, as well as presiding over the felony trial itself, are fundamental elements of the authority of district judges under Article III of the Constitution. These duties thus should not be delegated to magistrate judges as a matter of policy, regardless of whether the parties consent to the delegation.

Magistrate Judges Division of the Administrative Office of the United States Courts, A Constitutional Analysis of Magistrate Judge Authority, 150 F.R.D. 247, 306 (1993). The Judicial Conference took the same position in a 1981 report to Congress, reasoning that "it is preferable for the judge who is later to pronounce judgment and determine the sentence to conduct the [plea] proceeding." Judicial Conference of the United States, The Federal Magistrate System: Report to the Congress by the Judicial Conference of the United States 52 (1981). The prevalence of this practice in our circuit and the serious constitutional questions that it raises warrant a discussion of its propriety from our court.

Determining whether a judicial duty is properly delegable to a magistrate requires a two-step analysis. First, we must ask whether Congress, in passing legislation governing magistrate judges, intended for them to perform the duty in question. Second, we must consider whether the delegation of the duty to a magistrate judge offends the principles of Article III of the Constitution. We turn first to the statutory question.

A.

The statutory authority of a magistrate judge is set out in 28 U.S.C. § 636 (The Magistrates Act). Among other things, the Act provides:

(b)(1) Notwithstanding any provision of law to the contrary--

(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion ... to dismiss or quash an indictment or information made by the defendant, [or] to suppress evidence in a criminal case.... A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.

(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A)....

28 U.S.C. § 636(b)(1)(A)-(B). Apart from this express assignment of duties, the Act further states that "[a] magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b)(3). ²

The Supreme Court construed the statutory bases of magisterial authority in criminal matters in two recent decisions, Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), and Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). In both cases, the Court considered whether Congress intended for magistrate judges to have the power to conduct voir dire. In Gomez, the Court held that the Magistrates Act did not confer upon magistrate judges the unlimited authority to oversee voir dire. Gomez, 490 U.S. at 873-76, 109 S.Ct. at 2247-48. Peretz, however, clarified and narrowed the Gomez holding by reading the Magistrates Act to permit magistrate judges to conduct voir dire with the parties' consent. Peretz, 501 U.S. at 927-28, 111 S.Ct. at 2664.

Although Peretz and Gomez did not consider the statutory authority of magistrate judges to take guilty pleas, the few lower courts that have examined this issue have looked to these two cases for guidance. Because the Magistrates Act does not expressly authorize magistrate judges to conduct plea proceedings, see 28 U.S.C. § 636(b)(1)(A)-(B), these courts have focused on the authority of magistrate judges to do so under the "additional duties" clause of the Act, see 26 U.S.C. § 6363(b)(3) ("A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States."). ³ As the Supreme Court noted in Peretz, a magisterial duty is a proper "additional duty" under the clause if it bears some relationship to the duties that the Act expressly assigns to magistrate judges. Peretz, 501 U.S. at 930-31, 111 S.Ct. at 2666; see also Gomez, 490 U.S. at 864, 109 S.Ct. at 2241.

Using the Peretz "additional duties" test, other courts have found that plea allocutions do not differ markedly from other duties performed by magistrate judges and hence are assignable to them under the Act. In United States v. Williams, the Second Circuit reasoned that

[a]n allocution is an ordinary garden variety type of ministerial function that magistrate judges commonly perform on a regular basis. The catechism administered to a defendant is now a standard one, dictated in large measure by the comprehensive provisions of Rule 11.... Further, administering an allocution is less complex than a number of duties the Magistrates Act specifically authorizes magistrates to perform.

Williams, 23 F.3d at 632. Even if the taking of guilty pleas goes beyond the typical range of duties assigned to magistrate judges by the Act, the Williams court held that a defendant's consent to the magistrate judge's actions makes the delegation permissible. Id. at 633. Finally, the court found nothing in the legislative history of the Magistrates Act to indicate that Congress did not wish magistrate judges to conduct plea proceedings; rather, this delegation advanced the congressional goal of relieving the heavy caseload pressures on district courts. See id. at 633, 634. Relying upon similar reasoning, the Tenth Circuit has also found statutory authority for magistrate judges to conduct plea proceedings. See Ciapponi, 77 F.3d 1247.

Our circuit has not previously addressed the precise issue of a magistrate judge's statutory power to take a guilty plea. In United States v. Rojas, 898 F.2d 40 (5th Cir.1990), however, we considered a closely analogous situation. On the morning of his trial, Rojas pled guilty to the district court on a drug charge. Later, however, at his sentencing, Rojas asked to withdraw his guilty plea, claiming that his attorney was not assisting him in his defense. The district court doubted this allegation, but nevertheless referred the matter to...