U.S. v. Kraus, 96-2645

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY, FLAUM, and ROVNER; ROVNER
Citation137 F.3d 447
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph A. KRAUS, Defendant-Appellant
Docket NumberNo. 96-2645,96-2645
Decision Date09 February 1998

Donna R. Eide (argued), Christina McKee, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

G. Murray Turner (argued), Mulhall, Turner, Hoffman & Coombs, Louisville, KY, for Defendant-Appellant.

Before CUDAHY, FLAUM, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

More than eight years ago, Joseph Kraus pled guilty to distributing cocaine and was sentenced to a prison term of 180 months. Six years later, we vacated that sentence pursuant to 28 U.S.C. § 2255 and returned the case to the district court for resentencing. On remand, the parties negotiated a new plea agreement pursuant to FED.R.CRIM.P. 11(e)(1)(C) providing for a period of incarceration not to exceed 121 months. The district court rejected that agreement. The parties subsequently revised the agreement to provide for a prison term not to exceed 151 months. The district court accepted that agreement, and ordered Kraus incarcerated for 151 months. Kraus appeals, contending that the district court violated Rule 11(e)(1) by effectively participating in the plea negotiations. Although the unusual facts in this case may not establish a literal violation of Rule 11, we reluctantly conclude that they do give rise to the appearance of a serious transgression, and we cannot say that the appearance of impropriety had no effect on the plea and sentence. In the exercise of our supervisory authority, we therefore vacate Kraus' plea, conviction, and sentence and remand for further proceedings.


In 1988, Kraus and several other defendants were indicted for cocaine distribution. Kraus elected to plead guilty to each of the eight counts of the indictment naming him as a defendant. The plea agreement approved by the court provided that Kraus would be sentenced to a prison term of fifteen years. Kraus was ultimately ordered to serve a term of 180 months in prison, to be followed by a six-year period of supervised release. Kraus appealed, contending that the district court had improperly deemed him an "organizer" of the narcotics activity underlying the indictment (see U.S.S.G. § 3B1.1(a)) and had incorrectly calculated his criminal history category. We overruled those objections and affirmed Kraus' sentence in an unpublished order. United States v. Lemons, 909 F.2d 1486, 1990 WL 111358 (7th Cir.1990), cert. denied sub nom. Kraus v. United States, 498 U.S. 985, 111 S.Ct. 519, 112 L.Ed.2d 531 (1990).

Kraus subsequently sought relief from his sentence pursuant to 28 U.S.C. § 2255. Kraus argued that when the district court imposed a six-year term of supervised release as part of his sentence, it violated the terms of the plea agreement. We agreed that the plea agreement as written did not contemplate anything more than a prison term of fifteen years. Once the court approved that agreement, we observed, Kraus reasonably expected that the specified prison term would be the sum total of the sentence he received. Because he was not fairly apprised that the court might also impose an additional period of supervised release, the sentence actually imposed ran afoul of due process. We noted that if the district court believed that a term of supervised release was statutorily required, then it was obligated to reject the plea agreement and allow him to withdraw his guilty plea and negotiate a new plea agreement. Kraus v. United States, 48 F.3d 1221, 1995 WL 84624 (7th Cir.1995) (unpublished).

On remand, the district court, acting on our suggestion, withdrew its approval of the plea agreement, permitted Kraus to withdraw his guilty plea, and gave the parties the opportunity to draft a new plea agreement. The parties came to a new agreement providing, pursuant to Rule 11(e)(1)(C), that Kraus' sentence would include a prison term of no more than 121 months, to be followed by a period of supervised release selected by the court. R. 13. Their agreement was filed with the court on July 17, 1995, and a new pre-sentence report was ordered.

On September 19, 1995, the parties appeared before the court for a change of plea hearing and sentencing. At the outset of that hearing, however, the court indicated that it was not inclined to accept the plea agreement. Tr. Sept. 19, 1995 at 4. Subsequent questioning revealed that the parties had agreed to the proposed sentencing cap of 121 months with an eye on a pending dispute as to whether Kraus played an aggravating role in the offense such that his offense level should be enhanced pursuant to section 3B1.1 of the Sentencing Guidelines. 1 A sentence of 121 months represented the low end of what the sentencing range would be (121 to 151 months) if Kraus's offense level were adjusted upward by three levels under that section of the Guidelines, as the government believed it should be. See U.S.S.G. § 3B1.1(b) (1994). 2 At that point the court, indulging the assumption that it would embrace the three-level aggravating-role enhancement that the government urged, indicated that a sentence of 121 months was not appropriate. "[M]y concern," the court explained, "is that the low end of the guideline range would never be sufficient punishment under the circumstances, for this[ ] judge." Tr. Sept. 19, 1995 at 7. In addition to unspecified "other aggravating circumstances" (id.), the court cited Kraus' "enhanced role" vis a vis several of his less culpable co-defendants--who had received sentences of 120 and 121 months (id. at 8)--as well as the possibility that his criminal history category underrepresented the gravity of his prior criminal conduct (id. at 10) as the justifications for its concern. The court then announced that "unless ... there is something I've overlooked ... that I ought to take into account, I will declare to you that the 11(e)(1)(C) agreement is unacceptable to the court." Id.

The court's decision to reject the proposed agreement prompted a series of questions from the Assistant United States Attorney. She first attempted to nail down exactly what the court found objectionable in the agreement.

AUSA: Is it the cap itself, the one hundred and twenty-one months, that's unacceptable, or is it the method, the 11(e)(1)(C) method that's unacceptable in this case?

THE COURT: Well, I mean the recommended cap--and then of course I've got discretion under [an] 11(e)(1)(B) agreement,[ 3] then I would have discretion. And so I would say that it's a combination. What I'm telling you is that a hundred and twenty-one months, under all these circumstances, is not likely to be my sentence because it's not high enough, not enough time.

Id. at 11. The prosecutor then inquired whether "there is any possibility of us reaching an agreement that the court would accept in this case." Id. at 11-12. That question elicited the following response:

THE COURT: Well, yes, I'm sure there is. I mean, I'll have to impose a sentence.

I guess your question is whether you can either divine what it is that I am going to do. I don't know precisely what I'm going to do, but I am telling you that it wouldn't be one hundred and twenty-one months. So you can either reach another 11(e)(1)(C) agreement, if you are able to, or you can open it up so that the court has some more play for some of these other considerations. I don't know; I will have to hear the parties on all of that. But it would be basically compelled by, if I accepted this agreement, to impose a sentence not greater than one hundred and twenty-one months is a control that I won't yield to.

So I don't think I ought to participate any further in your negotiations--

AUSA: Thank you.

THE COURT:--deliberations, so it's a matter that you have to hammer out with each other.

So let me just ask--I know that I have left you with a lot to do, but it might be that you can make headway on that while Mr. Kraus is on the premises and so forth. So I will recess the proceedings, and I don't have anything else on the court calendar this afternoon, so you can let me know in an hour or so if you want the court to resume and consider this matter, or if you think that we [had] better recess for another day. But go ahead and use the fact that Mr. Kraus is here and you are all here, and see what you can do. All right?

Id. at 12-13. The hearing was recessed, and no further proceedings were conducted that day.

The prosecutor subsequently reviewed the relevant provisions of the Sentencing Guidelines and decided that she would propose a second Rule 11(e)(1)(C) agreement with an incarceration cap of 151 months (the top of what the government believed the sentencing range should be). R. 67 Affidavit p 4. On September 20, 1995, not yet having conveyed that offer to the defense, the AUSA telephoned the district court's room clerk to apprise her of the status of the plea negotiations and disclosed to the clerk the revised cap she was contemplating. Id. p 5. The clerk remarked that the higher number appeared to have "credence," although she added that there was no guarantee as to what the court would do. Id. The district judge was not a party to this telephone call nor, so far as the record reveals, did the judge have any contemporaneous knowledge of the call. See id.

On September 21, 1995, the day after she spoke with the room clerk, the AUSA contacted Kraus' counsel and proposed the revised cap of 151 months. Id. p 6. The AUSA also revealed that she had spoken to the room clerk and conveyed the substance of the clerk's reaction to the new cap to Kraus' counsel. Id. Defense counsel subsequently relayed the offer to Kraus.

According to Kraus (we do not have the benefit of any affidavit from his counsel), when he heard that the prosecutor was proposing a cap of 151 months, he asked his counsel why he had not secured the government's agreement to a cap of 135 months (near...

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