U.S. v. Greatwalker, 01-3005.

• Decision Date: 08 April 2002
• Docket Number: No. 01-3005.,01-3005.
• Citation: 285 F.3d 727
• Parties: UNITED STATES of America, Appellee, v. Daniel GREATWALKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F.3d 727

UNITED STATES of America, Appellee, v. Daniel GREATWALKER, Appellant.

No. 01-3005.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2002.

Filed: April 8, 2002.

Lynn M. Boughey, argued, Minot, ND, for appellant.

David L. Peterson, Assist. U.S. Atty., argued, Bismarck, ND, for appellee.

BEFORE: McMILLIAN, FAGG, and RILEY, Circuit Judges.

FAGG, Circuit Judge.

During a night of drinking, Daniel Greatwalker killed Linus Wallette with a knife, pick axe, and hammer. There were many witnesses against Greatwalker. Greatwalker stated he was going to kill Wallette because of a comment he had made. Greatwalker was seen attacking Wallette repeatedly, wielding the bloody murder weapons, and wearing blood-soaked clothing. Greatwalker showed several people Wallette's body and asked for help disposing of it.

A grand jury charged Greatwalker, a Chippewa Indian, with committing premeditated murder on the Turtle Mountain Indian Reservation in violation of 18 U.S.C. § 1111(a) and 1153. Section 1111 defines first-degree murder as a premeditated killing and dictates a sentence of death or life imprisonment for that offense. See also U.S.S.G. § 2A1.1 (setting base offense level of 43 corresponding to life sentence for first-degree murder). Nevertheless, on the day of trial, the Government offered to recommend a thirty-five-year sentence in exchange for Greatwalker's guilty plea. With the jury waiting in the next courtroom, the following discussion occurred in open court:

THE COURT: I have been advised by Mr. Cresap, the attorney for Mr. Greatwalker, that the give and take in plea negotiation may have reached a point where a plea agreement is possible between Mr. Greatwalker and the government.... What's going on?

MR. CRESAP [defense counsel]: Well, Your Honor, right now the concern that we have ... is that the deal would envision Mr. Greatwalker pleading to first degree murder. Now, under the Guidelines and under the statute, that's a mandatory life sentence. The agreement that we've reached with the U.S. Attorney's office is that Mr. Greatwalker would be given a sentence of 35 years,... and Mr. Greatwalker wanted to meet with the Court so the Court could... give Mr. Greatwalker some assurance that if he does agree to this deal, that he's got a reasonable degree of assurance that that's the sentence he will, in fact, get.

THE COURT: All right. And, Mr. Peterson [the prosecutor], is that an accurate description of the offer that you have placed on the table and that the defendant is considering accepting?

MR. PETERSON: I believe that it is, Your Honor.... Mr. Greatwalker would plead guilty to first degree murder, and we have been negotiating, quite frankly, the term of years that the parties could agree upon that we would request jointly that the Court depart downward to. Mr. Cresap has expressed concern, as he just indicated, as to whether or not the Court could or would be so inclined, and as I had indicated to him, there have been other instances where the Court has departed downward; and in this situation, of course, if that happened, the government would not intend to appeal anything, and I trust Mr. Greatwalker and his attorney would not appeal. So that is, in essence, the proposal that has been made, Your Honor.

THE COURT: And both of you are, in fact, urging [me to] accept this as a plea agreement binding on the Court and assure Mr. Greatwalker that the sentence which I will ultimately impose will be that of 35 years, ... regardless of what statutory requirements may be present. Is that, in substance, ... what you're asking me to do?

MR. CRESAP: Yes, Your Honor.

MR. PETERSON: Yes.

. . . .

THE COURT: I have no problem agreeing with it. I will agree, if a plea of guilty is put in to first degree murder, that I will impose a sentence of 35 years....

(Trans. of Change of Plea Proceeding, at 3-6.) Having received the district court's commitment to impose the agreed-on illegal sentence, Greatwalker pleaded guilty to first-degree murder, and assault charges against Greatwalker were dropped. Later the same day, Greatwalker called his attorney and asked to withdraw the plea, suggesting the attorney had forced him to take the deal. The attorney contacted the district court about withdrawing Greatwalker's plea and asked the court to appoint new counsel for Greatwalker. The district court appointed a new lawyer, who filed a motion claiming Greatwalker's trial attorney coerced him into pleading guilty by threatening to withdraw from the case. The district court conducted an evidentiary hearing and denied Greatwalker's motion, finding Greatwalker's trial attorney did not threaten to withdraw, the attorney was ready to go to trial, and Greatwalker's plea was knowing and voluntary. The district court then imposed the agreed-on sentence of thirty-five years. Greatwalker now appeals the denial of his motion to withdraw his guilty plea. See Fed.R.Crim.P. 32(e). The Government does not cross-appeal. We vacate Greatwalker's illegal sentence and his conviction on the corresponding plea agreement, and remand for further proceedings.

Greatwalker asserts he should be allowed to withdraw his plea because his thirty-five-year sentence is illegal. A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or less than the permissible statutory penalty for the crime. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999). Because the Government has not sought the death penalty, life imprisonment is the applicable mandatory sentence for Greatwalker's plea to first-degree murder. 18 U.S.C. § 1111 (1994). Congress has provided two limited mechanisms for departing below a statutorily prescribed penalty: departure for substantial assistance under 18 U.S.C. § 3553(e), and the safety valve departure for nonviolent defendants with limited criminal histories under 18 U.S.C. § 3553(f). Neither departure provision applies here. We agree with Greatwalker that his sentence is...