U.S. v. King

• Decision Date: 01 August 1995
• Docket Number: No. 95-1068,95-1068
• Citation: 62 F.3d 891
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leon A. KING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 891

62 F.3d 891

UNITED STATES of America, Plaintiff-Appellee, v. Leon A. KING, Defendant-Appellant.

No. 95-1068.

United States Court of Appeals, Seventh Circuit.

Argued June 14, 1995.

Decided Aug. 1, 1995.

James E. Beckman, Frances Hulin (argued), Office of the U.S. Atty., Springfield, IL, for plaintiff-appellee.

Carol J. Reid (argued), Springfield, IL, for defendant-appellant.

Before COFFEY, MANION and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Leon A. King pled guilty to possession of a firearm by a felon, in violation of 18 U.S.C. Sec. 922(g). The district court held that King's three prior convictions for burglary made him an armed career criminal under 18 U.S.C. Sec. 924(e)(1) and U.S.S.G. Sec. 4B1.4 and imposed the statutory minimum sentence of 180 months of imprisonment and 5 years of supervised release. On appeal, King argues that the government breached his plea agreement by failing to move for a downward departure based on his assistance to authorities. In addition, he contends that he should not have been sentenced as an armed career criminal. We affirm.

I. Standard of Review

King did not present any of his appellate arguments to the district court. Thus, we review his claims for plain error. United States v. Brassell, 49 F.3d 274, 277 (7th Cir.1995); United States v. Maggi, 44 F.3d 478, 484 (7th Cir.1995). Under the plain error standard, we will grant relief only if we are convinced that any error committed affected the outcome of King's sentencing hearing. See United States v. D'Iguillont, 979 F.2d 612, 614 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1873, 123 L.Ed.2d 492 (1993).

II. Sentencing Recommendation

King contends that the government breached its promise to recommend a sentence no higher than "the middle of the final applicable sentencing guideline range." At first blush this allegation seems plainly untrue: the government recommended the lowest possible sentence (absent a departure)--the statutory minimum of 180 months. ¹ King argues, however, that the interplay between the guidelines and the statutory minimum turn the government's recommendation into a breach. His sentencing range, based on an adjusted offense level of 30 and a criminal history category of VI, was 168 to 210 months. The middle of this range is 189 months. Still it appears that the government fulfilled its bargain, because it recommended a sentence of 180 months. But King's argument takes one additional step.

At sentencing, the government stated that the middle of the range was 195 months. This number came from substituting the statutory minimum of 180 months as the bottom of the range, yielding a range of 180-210 months. King asserts that the words "final applicable sentencing guideline range" in the plea agreement refer to the guideline range before any statutory minimum is factored in, so the government's calculation of the middle of the range was incorrect. Again, we may ask why this dispute is material: the actual recommendation of 180 months was below the middle of the range regardless of who prevails on this point. King supplies an answer, or at least an argument. The government stated that it was recommending the statutory minimum because of King's assistance to authorities. According to King, by recommending a 180-month sentence when it thought the middle of the range was 195 months, the government implied that he deserved fifteen months' credit for his assistance. If the middle of the range was 189 months, fifteen months' credit would be 174 months, which is below the statutory minimum and would require a government motion for a departure under 18 U.S.C. Sec. 3553(e). King argues that, because (1) the middle of the range is 189 months and (2) the government determined that he deserved fifteen months' credit for his assistance, the government breached the plea agreement by not moving for a departure.

First, we do not agree with King that the middle of range was 189 months rather than 195. Section 5G1.1 of the guidelines provides that the sentencing range shall be adjusted to take statutory minima and maxima into account. Under U.S.S.G. Sec. 5G1.1(c)(2), King's final applicable sentencing range becomes 180-210 months. Cf. United States v. Padilla, 23 F.3d 1220, 1222 n. 3 (7th Cir.1994) (when guideline range falls below statutory minimum, statutory minimum becomes guideline range under Sec. 5G1.1(b)); United States v. Hayes, 939 F.2d 509, 512 (7th Cir.1991) (statutory minimum of five years was guideline sentence under Sec. 5G1.1(b) despite original range of 21-27 months), cert. denied, 502 U.S. 1042, 112 S.Ct. 896, 116 L.Ed.2d 798 (1992). Thus, the middle of his final applicable range was 195 months.

More fundamentally, even if the middle of range was 189 months, we do not see how the government's actions translate into a breach of the plea agreement. The prosecutor fulfilled his duty by recommending a sentence no higher than the middle of the range; whether the middle was 189 or 195 months is irrelevant. In addition, the plea agreement specifically states that the decision of whether to move for a downward departure rests in the "sole discretion" of the government. Even if the prosecutor felt that King deserved fifteen months' credit but recommended that he be given only nine months less than the middle of the range (which, essentially, is the argument here), we are powerless to review that decision unless the prosecution acted based on an unconstitutional motive, such as King's race or religion. See Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 1843-44, 118 L.Ed.2d 524 (1992). ² King does not allege an unconstitutional motive, much less make the "substantial threshold showing" necessary to entitle him to an evidentiary hearing. See id. at 186, 112 S.Ct. at 1843. Of course, if the government promises during the plea negotiations to move for a downward departure, that promise may be specifically enforced. See United States v. Lewis, 896 F.2d 246, 249 (7th Cir.1990). But that was not the case here. ³ Thus, we may not review the government's decision to recommend the statutory minimum rather than move for a downward departure.

III. Incarcerated Status

Next, King argues that the government violated his due process and equal protection rights by refusing to make the substantial assistance motion because he was incarcerated. In the plea agreement, the government promised to evaluate King's assistance and determine whether to move for a departure depending on its "evaluation of the nature, extent, and value of the defendant's assistance, including his truthfulness." King contends that the government based its decision solely on the fact that he was incarcerated and thus breached its agreement to decide based on the "nature, extent, value ... [and] truthfulness" of the cooperation rendered.

The government states that its decision not to make the substantial assistance motion was based on an evaluation of King's overall assistance and ability to cooperate--his incarceration was simply one factor. King counters that the prosecutor's statements at sentencing reveal that the government based its decision on the fact that he was incarcerated. ⁴ While the government's statements imply that King's incarceration was a factor in the decision not to grant him a departure, they do not conclusively establish that it was the only factor. Even assuming, however, that the government declined to move for a departure because he was incarcerated, King may not claim a denial of equal protection. Prisoners are not a suspect class, Wilson v. Giesen, 956 F.2d 738, 744 (7th Cir.1992); Pryor v. Brennan, 914 F.2d 921, 923 (7th Cir.1990), so the government may treat incarcerated defendants differently as long as its decisions are "rationally related to a legitimate ... [government] interest." City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Incarcerated defendants cannot, on balance, provide as much assistance as defendants who are free pending trial. The government could rationally decide not to request departures for incarcerated defendants because they often are not in a position to provide substantial assistance. King's equal protection rights were not violated. ⁵

King's due process argument is more substantial. He alleges that, when he entered the plea agreement, the government did not inform him that his incarceration would affect his chances of receiving a departure for substantial assistance. While the plea agreement leaves the ultimate decision of whether to make a substantial assistance motion to the "sole discretion" of the government, King argues that the prosecutor possessed a duty to inform him that his incarceration would significantly reduce his chances of receiving a substantial assistance departure. See Santobello v. New York, 404 U.S. 257, 261-62, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971) (when a guilty plea is induced by promises, "the essence of those promises must in some way be made known").

If King was not fairly informed of the consequences of his decision to plead guilty, a due process violation has occurred. Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984). The remedy for this violation would be the withdrawal of his plea. King, however, disclaims any desire to revoke his plea agreement. Instead, he requests that we allow the district court to depart without the benefit of a substantial assistance motion as specific performance of the plea agreement. But King has no right to this remedy, because the government did not make a promise that can be specifically enforced. The language of the plea agreement leaves the decision of whether to move for a departure to the discretion of the prosecutor. Plea agreements are interpreted according to the reasonable expectations of the parties. United States v. Sophie, 900 F.2d 1064, 1071 (7th Cir.1990), cert. denied, 498 U.S. 843,...