U.S. v. Lewis

• Decision Date: 29 April 1997
• Docket Number: Criminal No. 94-40044-01-SAC.,Civil No. 97-3007-SAC.
• Citation: 964 F.Supp. 1513
• Parties: UNITED STATES of America, Plaintiff, v. James Mandell LEWIS, Defendant.
• Court: U.S. District Court — District of Kansas

964 F.Supp. 1513

UNITED STATES of America, Plaintiff, v. James Mandell LEWIS, Defendant.

Criminal No. 94-40044-01-SAC.

Civil No. 97-3007-SAC.

United States District Court, D. Kansas.

April 29, 1997.

James Mandell Lewis, Rochester, MN, pro se.

Richard L. Hathaway, Office of U.S. Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On September 7, 1994, the grand jury returned a ten count sealed indictment, charging the defendant, James Mandell Lewis with two counts of violating 21 U.S.C. § 843(b) (knowing use of a communication facility to cause or facilitate a felony under the Controlled Substances Act), one count of violating 21 U.S.C. § 841(a)(1) (distribution of cocaine base), two counts of violating 18 U.S.C. § 922(g)(1) (felon in possession of a firearm), three counts of violation of 18 U.S.C. § 922(j) (receipt or storage of a stolen firearm), one count of violating 21 U.S.C. § 856(a)(1) (maintaining a place for the purpose of manufacturing, distributing or using a controlled substance), and one count of violating 18 U.S.C. § 924(c)(1) (use of a firearm during and in relation to a drug trafficking crime). On October 19, 1994, the grand jury returned a second superseding indictment which added one additional count of violating 18 U.S.C. § 922(g)(1).

On November 14, 1994, pursuant to a plea agreement, Lewis entered a plea of guilty to count ten of the second superseding indictment, which charged a violation of § 924(c). In exchange, the government agreed "to dismiss the remaining counts of the indictment, and to bring no further criminal charges against the defendant resulting from the activities which form the basis of the indictment in this matter." On January 27, 1995, the court imposed a sentence which included, inter alia, a primary term of incarceration of five years.

On September 9, 1996, Lewis filed a pro se "Petition for Clarification" (Dk.48). In that motion, Lewis asked the court to enter "an ORDER clarifying whether ... or not the dismissed counts in the afore cited case number (USA v. Lewis, 94-40044-01) were dismissed with prejudice or without prejudice."

On September 20, 1996, the court entered a memorandum and order that explained in pertinent part:

"`[T]he common understanding is that in the absence of contrary expression, counts dismissed as a result of plea bargaining are "with prejudice."'" Robinson v. Hadden, 723 F.2d 59, 62 (10th Cir.1983) (quoting Goldberg v. Warden, Allenwood Federal Prison Camp, 622 F.2d 60, 65 (3d Cir.), cert. denied, 449 U.S. 871 [101 S.Ct. 210, 66 L.Ed.2d 91] (1980)), cert. denied, 466 U.S 906 [104 S.Ct. 1684, 80 L.Ed.2d 159] (1984). As the government's response suggests, this general rule is based upon the assumption that the defendant has abided by the terms of the plea bargain, the act which prompted the government to seek dismissal of the other counts in the first instance. The government's response primarily addresses a scenario in which Lewis would in some manner not fulfill his part of the bargain with the government, i.e., withdraw his plea, thereby relieving the government of its corresponding duty under the plea agreement not to prosecute Lewis on the previously dismissed charges and other crimes related to those crimes. Assuming, arguendo, that Lewis would successfully withdraw his plea, the government is correct in arguing that it would no longer be bound by the terms of the plea agreement, including the provision requiring dismissal of the remaining counts. The government could then prosecute Lewis on all of the counts in the indictment or other charges arising out of the activities which form the basis of the indictment. See United States v. Brooks, No. 95-3367 1996 WL 508419 (10th Cir. Sept.9, 1996) (on direct appeal record failed to include sufficient factual basis to meet either the "carry" or "use" prong of § 924(c) under Bailey v. United States [___ U.S. ___], 116 S.Ct. 501 (1995)); defendant's guilty plea vacated and case remanded to district court to ("set aside plea agreement unless the defendant chooses to plead anew, reciting facts sufficient under Bailey to establish that he `carried' or `used' the firearm in connection with a drug trafficking offense."); Franshaw [Fransaw] v. Lynaugh, 810 F.2d 518, 524 (5th Cir.1987) ("The cases hold with apparent unanimity that when defendant repudiates the plea bargain, either by withdrawing the plea or by successfully challenging his conviction on appeal, there is no double jeopardy (or other) obstacle to restoring the relationship between the defendant and state as it existed prior to the defunct bargain."), cert. denied, 483 U.S. 1008 [107 S.Ct. 3237, 97 L.Ed.2d 742] (1987).

IT IS THEREFORE ORDERED that Lewis' "Petition for Clarification" (Dk.48) is granted to the extent set forth in the body of this memorandum and order.

United States v. Lewis, No. 94-40044-01-SAC, 1996 WL 596739, *1-2 (D.Kan. Sept. 20, 1996).

This case comes before the court upon Lewis' pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (Dk.53). In that motion, Lewis contends that his § 924(c) conviction must be set aside in light of the Supreme Court's decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). See United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995), cert. denied, ___ U.S. ___, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996). In Bailey, the Supreme Court defined the word "use" found in § 924(c)(1) in a manner substantially more narrow than the Tenth Circuit had previously construed the term. In Bailey, the Supreme Court held that "`use' must connote more than mere possession of a firearm by a person who commits a drug offense." ___ U.S. at ___, 116 S.Ct. at 506. Based upon his contention that he did not "use" the firearms during and in relation to a drug trafficking crime within the meaning of Bailey, Lewis contends that the court should set aside his § 924(c) conviction and that he should be set free immediately.

In support of his contention that he should be set free, Lewis cites among other cases United States v. Gaither, 926 F.Supp. 50 (M.D.Pa.1996), United States v. Youngworth, 1989 WL 129262 (W.D.N.C. Oct.26, 1989), DiCesara v. United States, 646 F.Supp. 544 (C.D.Cal.1986). Throughout his brief, Lewis repeatedly indicates that he is not seeking to withdraw his plea. Instead, it is Lewis desire to only set aside the § 924(c) conviction and to not face the remaining charges that were dismissed by the terms of his plea agreement with the government.

The government responds, conceding that there is insufficient evidence to support Lewis' § 924(c) conviction. However, the government contends that Lewis "cannot request the court to set aside a portion of the plea agreement and expect the remainder to remain intact." As the court suggested in its September 20, 1996, memorandum and order, the government contends that if Lewis successfully challenges his § 924(c) conviction that it would no longer be bound by the terms of the plea agreement. The government's brief also states:

Should defendant continue to pursue the vacation of his conviction, an action which would clearly result in a complete voidance of the plea agreement, the government, as contemplated by this court's September 20, 1996, Memorandum and Order, would be free to resurrect the dismissed charges and institute further criminal proceedings against defendant, consistent with the remaining 10 charges in the Second Superseding Indictment. The choice is clearly defendant's. He can either accept the current plea agreement with its advantages and disadvantages, or he can continue with his attack, with the full knowledge that the government, after it has had an opportunity to review the evidence, may elect to further prosecute the ten outstanding charges.

In closing, the government requests that the defendant be informed of the full consequences of his decision to pursue his attack on his § 924(c) conviction.

In his reply brief, Lewis again argues that his § 924(c) conviction should be set aside and that he should be set free immediately.

Plea Agreements: General Principles

The court must "construe the plea agreement according to contract principles and what the defendant reasonably understood when he entered his plea." United States v. Veri, 108 F.3d 1311, 1313 (10th Cir.1997) (citing United States v. Hawley, 93 F.3d 682, 692 (10th Cir.1996)). "`Plea bargains, like contracts, cannot normally be unilaterally broken with impunity or without consequence.'" United States v. Stemm, 847 F.2d 636, 637 (10th Cir.1988) (quoting United States v. Reardon, 787 F.2d 512, 516 (10th Cir.1986) (citation omitted)).

The Supreme Court has stated that the Government may not breach any term of a plea agreement which induced a defendant to plead guilty. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). Accordingly, when a defendant has entered into a plea agreement with the Government, the court must ensure that he/she receives what is reasonably due him/her under the agreement. United States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987). Thus, if a defendant lives up to his/her end of the bargain, the Government is bound by its promises. Id. (citing United States v. Garcia, 698 F.2d 31, 37 (1st Cir.1983)). However, if a defendant fails to fulfill his/her promises, the Government is released from its obligations under the agreement and may indict and try the defendant regardless of whatever it may have promised earlier. Id. (citing United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985); Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1, (1987)).

United States v. Tilley, 964 F.2d 66, 70 (1st Cir.1992). "A unilateral breach by one party to the agreement may relieve the other party of obligations under the agreement."...