U.S.A. v. Gilliam, 00-2887

• Decision Date: 28 June 2001
• Docket Number: No. 00-2887,00-2887
• Citation: 255 F.3d 428
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Darin D. Gilliam, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 428

255 F.3d 428 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Darin D. Gilliam, Defendant-Appellant.

No. 00-2887

In the United States Court of Appeals For the Seventh Circuit

Argued April 19, 2001

Decided June 28, 2001

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 99-153-CR-01-B/F--Sarah Evans Barker, Judge. [Copyrighted Material Omitted] Before Flaum, Chief Judge, and Harlington Wood, Jr., and Rovner, Circuit Judges.

Flaum, Chief Judge.

After being indicted on drug conspiracy and possession charges, Darin Gilliam decided to enter into a plea agreement with the government. Gilliam's attorney informed his client that, pursuant to the agreement, Gilliam's sentence likely would be in the range of eight years. However, Gilliam was advised that his prior criminal record could cause his sentence to be lengthened. Unbeknownst to the government and defense counsel at the time the agreement was drafted, Gilliam did have an extensive criminal record-- one, in fact, that qualified him for career offender status. When that information was revealed, Gilliam was informed that, as a career offender, his sentence would be in the range of twenty two years. Nevertheless, Gilliam stated his desire to be held to the terms of the agreement, and entered his plea of guilty. Gilliam was sentenced to 262 months incarceration and now appeals, arguing that his plea was involuntary and that the indictment upon which he was charged was deficient. For the reasons stated herein, we affirm the conviction and sentence imposed by district court.

I. BACKGROUND

Darin Gilliam first came to the attention of Indianapolis, Indiana, drug enforcement agents when a client of his, Maceo Wells, was arrested on drug conspiracy charges. Wells, who decided to cooperate with the authorities in hopes of reducing his sentence, named Gilliam as his cocaine supplier, and agreed to set up a controlled purchase from Gilliam. Arrangements were made for Gilliam, along with his accomplice, Arthur Brown, to transport one and one- half kilograms of cocaine from Los Angeles, California, to Indianapolis for sale to Wells and another individual. Shortly after Gilliam and Brown's arrival in Indianapolis, a search warrant was executed for Gilliam's hotel room. Agents conducting the search recovered the one and one-half kilograms of cocaine, as well as various incriminating documents. Gilliam and Brown were subsequently arrested.

On December 7, 1999, a grand jury in the Southern District of Indiana charged Gilliam with a two-count indictment. Count One stated that from October 25, 1999 through November 9, 1999, Gilliam conspired to possess with intent to distribute, and to distribute, cocaine, in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846. Count Two alleged that on November 9, 1999, Gilliam knowingly possessed with the intent to distribute approximately one and one-half kilograms of cocaine, in violation of 21 U.S.C. sec. 841(a)(1) and 18 U.S.C. sec. 2.

Rather than face trial, Gilliam decided to cooperate with the government. On February 23, 2000, a petition to enter a plea of guilty was filed. According to the attached plea agreement, the defendant would plead guilty to Count One of the indictment. Gilliam acknowledged in the agreement that the applicable statutory penalty was a minimum sentence of ten years, and a maximum of life imprisonment. Gilliam further noted that "the final determination concerning the applicable guideline calculation, criminal history category, and sentencing guideline range [would] be made by the Court." Gilliam also understood that if the court decided to impose a sentence higher or lower than any recommendation of either party, or determined that a different sentencing guideline range applied in this case, or decided to depart from the otherwise applicable sentencing guideline range pursuant to 18 U.S.C. sec. 3553(b), then Gilliam would not be permitted to withdraw his plea of guilty. In exchange for Gilliam's plea and agreement to cooperate with the government concerning Wells' case, the government agreed to move to dismiss Count Two of the indictment, and to request a reduction of up to three levels for sentencing purposes for Gilliam's future cooperation.¹

According to the agreement, the base offense level for Gilliam's drug conspiracy was set at 32. Two points were to be added because Gilliam supervised Brown, and three points deducted for Gilliam's acceptance of responsibility. Additionally, assuming Gilliam continued to provide the government with substantial assistance, the government would request the aforementioned three level reduction. Thus, assuming, as Gilliam's attorney had done at the time of the negotiations, that Gilliam's criminal history category was IV, Gilliam could have qualified for a sentencing range of 110 to 137 months. Gilliam's attorney had explained to his client that, in his best judgment, Gilliam would receive a sentence of approximately eight years. However, counsel cautioned his client that Gilliam's past criminal history could enhance that sentence. At the time that Gilliam filed his agreement, neither the government nor his attorney was aware of the extent of Gilliam's criminal history.

On April 20, 2000, Gilliam's criminal history, along with the ramifications of that history for sentencing purposes, were disclosed to him in his Presentence Investigation Report ("PSR"). The report noted that among the myriad of prior run- ins Gilliam had with the law were a 1988 conviction for assault with a deadly weapon with great bodily injury and a 1990 conviction for assault with a deadly weapon. Because Gilliam had been convicted of two prior felonies that were crimes of violence and because his present conviction was a controlled substance offense, the Sentencing Guidelines classified Gilliam as a career offender. See U.S.S.G. sec. 4B1.1. The PSR noted that, as a career offender, Gilliam's criminal history category should be set at VI. Furthermore, because Gilliam's present offense carried astatutory maximum penalty of life imprisonment, his offense level was to be set at 37. See id. Thus, deducting three points for Gilliam's acceptance of responsibility, his Guidelines range was 262 to 327 months of imprisonment.

Almost two months later, on July 13, 2000, Gilliam appeared before the district court for his change of plea and sentencing hearing. At that hearing, Gilliam informed the court that while he could not read or write very well, his counsel had read to him all the relevant documents in his matter, including the indictment, the plea agreement and the PSR. When the district court questioned Gilliam, he showed unease regarding the possible length of his sentence. He informed the court that at the time he entered into the written agreement, he was under the impression from his attorney that his sentence would be in the range of eight years. The court, after questioning Gilliam's attorney, explained to the defendant that his counsel's estimate of an eight year sentence was "a good judgment" in light of the facts known to him at that time the agreement was entered into. However, the court stated that with the additional information of Gilliam's past criminal record, his sentencing range was closer to 21 years. Additionally, the court explained to Gilliam that if he wished not to enter his guilty plea, he could proceed to trial and force the government to prove his guilt beyond a reasonable doubt. Gilliam acknowledged that his attorney had provided him with similar information, and stated that he did not wish for the court to read the PSR aloud to him. Thereafter, Gilliam informed the court that he still wished to enter his plea of guilty. After hearing testimony regarding the facts surrounding Gilliam's arrest from drug enforcement agent Baker, the court asked Gilliam for his plea. The defendant plead guilty and was sentenced to 262 months imprisonment, followed by five years of supervised release.

Gilliam now appeals his sentence, arguing primarily that his plea was not knowingly and voluntarily entered into. Additionally, Gilliam asserts that his plea of guilty was entered under a defective indictment and that the Sentencing Guidelines mandate that he receive a lesser sentence.

II. DISCUSSION

A. Knowing and Voluntary Nature of Gilliam's Plea

Gilliam's initial assertion on appeal is that, as a result of the government and defense counsel's failure to evaluate his criminal record prior to entering into a plea agreement, Gilliam's plea was not knowingly and intelligently made. According to the defendant, "the [g]overnment's negligence, and that of defense counsel in not pursuing this information, put the [d]efendant into a position of accepting a plea on one set of guidelines and being sentenced on something greater." Gilliam further contends that the district court's decision to have the plea hearing and the sentencing on the same day subjected him to a conflict that he could not overcome in the time frame given.

As the Supreme Court long ago noted "[a] defendant who enters [a guilty] plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be an intentional relinquishment or abandonment of a known right or privilege." McCarthy v. United States, 394 U.S. 459, 466 (1969) (internal citation omitted). If the plea is not voluntary and knowing, then it violates due process, and is thus void. "Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." Id.

We have stated that when a defendant does not move, while still before the district court, to withdraw...