U.S. v. Fitzmorris, No. 08-4140/09-3207
| Decision Date | 05 May 2011 |
| Docket Number | No. 08-4140/09-3207 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BILLY JACK FITZMORRIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
Before: MOORE and WHITE, Circuit Judges; VARLAN, District Judge.*
HELENE N. WHITE, Circuit Judge. Pursuant to a Plea Agreement, Defendant Billy Jack Fitzmorris pleaded guilty of conspiracy to possess with intent to distribute narcotics, and possession of a firearm in furtherance of a drug-trafficking offense. Before Fitzmorris was sentenced on these charges, he escaped from custody and committed a series of other crimes, including bank robbery and hostage taking. In this consolidated appeal, Fitzmorris challenges the district court's denial of his motion to withdraw his guilty pleas in the first case, and the procedural reasonableness of the sentences imposed in both cases. We AFFIRM.
On April 21, 2005, while on parole from a state sentence, Fitzmorris was apprehended in possession of marijuana, cocaine powder and a stolen firearm. A search of Fitzmorris's residence yielded more drugs and another stolen gun. On July 6, 2006, Fitzmorris was charged with: (I) conspiracy to possess with intent to distribute over 500 grams of cocaine and over 5 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii)-(iii) and 846; (II, VIII) possession of firearms in furtherance of a drug-trafficking crime, pursuant to 18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(C)(i); (III, IX-X) felon in possession of firearms and ammunition under 18 U.S.C. §§ 922(g)(1), 924(a)(2); (IV-VII) possession with intent to distribute cocaine, marijuana, and cocaine base, all in violation of 18 U.S.C. §§ 841(a)(1), (b)(1); (XI) possession of cocaine, pursuant to 21 U.S.C. § 844(a); and (XII) criminal forfeiture under 18 U.S.C. § 924(d)(1).
On January 29, 2007, Fitzmorris signed a written Plea Agreement pursuant to which he pleaded guilty to Counts I and II. On February 16, 2007, he met with his probation officer and signed the following written statement: (Presentence Investigation Report for Drug Offense [hereinafter 2006 PSR] at 51-52.)
On April 2, 2007, Fitzmorris escaped from custody and engaged in a day-long crime spree, the details of which are discussed below. Then, on May 30, 2007, the day before he was scheduled to be sentenced in his drug case, Fitzmorris moved to withdraw his pleas, claiming that they resulted from coercion, that he was misled by his attorney and that the Government had breached the termsof the Plea Agreement. The district court took the motion under advisement and granted Fitzmorris's attorney's motion to withdraw from the case. Fitzmorris renewed his motion through substitute counsel. On June 5, 2008, after an evidentiary hearing, the district court denied Fitzmorris's motion to withdraw his pleas.
Fitzmorris's Presentence Investigation Report ("PSR") determined that, due to prior convictions of burglary and burglary/robbery, Fitzmorris was a career offender under the U.S. Sentencing Commission Guidelines ("the Guidelines"). As a career offender, Fitzmorris's Guidelines sentencing range for Count I was 360 months to life, with 60 additional months to be served consecutively on Count II, pursuant to 18 U.S.C. § 924(c)(1)(A)(i). On August 14, 2008, the district court sentenced Fitzmorris to 360 months on Count I, the bottom of the Guidelines range, and 60 months on Count II, to be served consecutively.
On the morning of April 2, 2007, while awaiting sentencing in his drug and firearms cases, Fitzmorris was taken to St. Elizabeth Hospital in Youngstown, Ohio, to receive medical attention. Using a pair of toenail clippers he smuggled into the hospital, Fitzmorris cut through the plastic cuffs that restrained his wrists, overpowered a corrections officer and grabbed his service revolver. Now armed, Fitzmorris exchanged uniforms with the officer, threatened two hospital employees and three other officers into submission, and escaped from the hospital. Once outside, Fitzmorris hijacked a car and its occupant, and headed for Columbus on the interstate (the owner of the car escaped during a short stop). Later that day, in the Colombus suburbs, Fitzmorris robbed two separate banks at gunpoint, collecting over $50,000. When located by police, Fitzmorris led them on a high-speedchase that ended when his vehicle crashed into a parked van. Unhurt and undeterred, Fitzmorris abandoned the stolen money and gun, and fled on foot to a nearby house occupied by an accounting office. After kicking down the door, Fitzmorris dragged a female employee to the top floor and kept her hostage for most of the afternoon, until he willingly surrendered.
In an indictment filed June 23, 2008, Fitzmorris was charged with seven additional counts: (I) escape under 18 U.S.C. § 751(a); (II, IV) armed bank robbery pursuant to 18 U.S.C. §§ 2113(a), (d); (III, V) possession of a firearm during crimes of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(C)(i); (VI) felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (VII) hostage taking, in violation of 18 U.S.C. § 1203. On September 17, 2008, a jury convicted Fitzmorris of all counts.
The PSR again classified Fitzmorris as a career offender, resulting in a presumptive Guidelines range of 360 months to life for his escape, robbery, felon-in-possession and hostage-taking convictions. However, only the hostage-taking offense actually qualified for such a sentence; the escape, felon-in-possession and bank-robbery convictions were statutorily limited to 60, 120 and 300 months, respectively. Fitzmorris's firearm offenses each carried consecutive, mandatory sentences of at least 300 months.
On February 23, 2009, the district court imposed concurrent sentences of 60 months on Count I (escape), 300 months on Counts II and IV (bank robbery), 120 months on Count VI (felon in possession of a firearm) and 360 months on Count VII (hostage taking). The court imposed the statutory maximum for each conviction except the hostage-taking offense, for which it sentenced Fitzmorris to the lower end of the Guidelines range. Fitzmorris also received the statutory minimumof 300 months each for Counts III and V (firearms offenses), to be served consecutively to the other counts. Fitzmorris's overall sentence was 80 years, in addition to the 35 years he received in his drug and firearms cases.
Fitzmorris raises two issues on appeal. First, he claims that the district court abused its discretion by denying his motion to withdraw his guilty pleas in the drug and firearms cases. Second, he argues that the court treated the Guidelines as mandatory when sentencing him in both cases.
Federal Rule of Criminal Procedure 11(d)(2)(B) allows a defendant to withdraw a guilty plea after its acceptance by the trial court and before sentencing if he "can show a fair and just reason for requesting the withdrawal." The purpose of this Rule is "to allow a hastily entered plea made with unsure heart and confused mind to be undone, not to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes he made a bad choice in pleading guilty." United States v. Walden, 625 F.3d 961, 965 (6th Cir. 2010) (quoting United States v. Ellis, 470 F.3d 275, 280-81 (6th Cir. 2006)) (other citation omitted). The burden is on the defendant to present proper grounds for granting the motion. United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996).
This Court has held that when determining whether to grant a defendant's motion to withdraw a guilty plea, district courts must consider:
(1) the amount of time that elapsed between the plea and the motion to withdraw it;(2) the presence (or absence) of a valid reason for the failure to move for withdrawal earlier in the proceedings; (3) whether the defendant has asserted or maintained his innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the defendant's nature and background; (6) the degree to which the defendant has had prior experience with the criminal justice system; and (7) potential prejudice to the government if the motion to withdraw is granted.
United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008) (quoting United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994), abrogated in part by statute on other grounds as stated in United States v. Caseslorente, 220 F.3d 727, 734 (6th Cir. 2000)). This list is not exhaustive, and the relative importance of each factor is dependent upon the circumstances of each particular case. Id. (citing United States v. Triplett, 828 F.2d 1195, 1197 (6th Cir. 1987)).
This Court reviews the denial of a motion to withdraw a guilty plea for abuse of discretion. Id. "A district court abuses its discretion where 'it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.'" Id. (quoting United States v. Spikes, 158 F.3d 913, 927 (6th Cir. 1998)).
The district court held an evidentiary hearing at which Fitzmorris testified and called two witnesses. Based on these testimonies, the court concluded that every Bashara factor but one, prejudice to the Government, weighed against allowing Fitzmorris to withdraw his pleas. Fitzmorris claims that all seven elements of the Bashara test weigh in his favor, but his arguments are unconvincing.
Fitzmorris pleaded guilty on January...
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