U.S. v. Lockwood, 04-2511.

• Decision Date: 26 July 2005
• Docket Number: No. 04-2511.,04-2511.
• Citation: 416 F.3d 604
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. T'Angelo L. LOCKWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 604

416 F.3d 604

UNITED STATES of America, Plaintiff-Appellee, v. T'Angelo L. LOCKWOOD, Defendant-Appellant.

No. 04-2511.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 2005.

Decided July 26, 2005.

David E. Hollar (argued), Nicholas J. Padilla, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Robert D. Truitt (argued), Indiana Federal Community Defenders, Inc., South Bend, IN, for Defendant-Appellant.

Before FLAUM, Chief Judge, and POSNER and KANNE, Circuit Judges.

KANNE, Circuit Judge.

In November 2003, a grand jury returned an indictment charging T'Angelo Lockwood with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Lockwood pleaded guilty pursuant to a written plea agreement. Under the terms of the agreement, Lockwood admitted that on or about December 10, 2002, he knowingly possessed a firearm after having previously been convicted of a felony in 1999. Lockwood acknowledged that the statutory maximum penalty he faced was ten years' imprisonment and that the district court would determine his sentence after making findings pursuant to the Sentencing Guidelines. Finally, Lockwood agreed to waive his right to appeal his sentence or the manner in which it was determined in any post-conviction proceeding.¹

The government agreed that a sentence equal to the minimum term of imprisonment under the applicable sentencing guideline range would be appropriate. The government also agreed that in recognition of Lockwood's acceptance of responsibility for his criminal conduct, he should be entitled to the maximum reduction in the offense level under the Guidelines.

After Lockwood's guilty plea, the probation office prepared its presentence report. The report determined that Lockwood's prior conviction in 1999 was for a crime of violence. Pursuant to the terms of the plea agreement, Lockwood qualified for a two-level decrease under U.S.S.G. § 3E1.1(a), and the government moved for an additional one-level decrease in accordance with § 3E1.1(b). Overall, the report determined that Lockwood's base offense level should be 20.

It was not long before Lockwood had second thoughts about the plea agreement. The government objected to the presentence report and asserted that a four-level enhancement would be appropriate pursuant to U.S.S.G. § 2K2.1(b)(5), because Lockwood possessed the weapon in connection with another felony offense—possession with intent to distribute crack cocaine, to be precise. The probation officer believed, however, that the facts did not support the enhancement. And Lockwood objected to the government's proposed enhancement because the government never mentioned during the plea negotiations that it was considering that enhancement. The government responded that the facts supporting the enhancement were submitted to Lockwood and his attorney prior to plea negotiations, so the enhancement was fair game.

On May 28, 2004, at the sentencing hearing, the district judge unambiguously expressed his reluctance to sentence Lockwood in accordance with the plea agreement and the calculated guideline range. The judge declared the factual support for the government's proposed enhancement to be a "close call," but grudgingly agreed that it was more likely than not that Lockwood possessed the firearm in connection with drug dealing, qualifying Lockwood (as the government argued) for the four-level enhancement and making his subtotal offense a 24.

The judge also expressed concern with the federal sentencing "process," but summarized the various factors present in Lockwood's case and determined his final offense level to be 21 and criminal history category IV. This made Lockwood's applicable range of imprisonment 57-71 months under the guidelines. The judge noted that, pursuant to the agreement, the government recommended a reduction for acceptance of responsibility and a sentence at the low end of the guideline range. The judge acknowledged that he would follow the recommendations.

The judge then invited Lockwood to address the court. Among other things, Lockwood denied that he possessed the cocaine and reiterated that the government "took [him] by surprise" by not mentioning the drug allegation until after he pleaded guilty. The judge reiterated his concerns with the sentence facing Lockwood and with the sentencing guidelines, stating:

I am seriously considering granting [Lockwood] a special leave to appeal this case. I would love to see this issue presented to the Court of Appeals, frankly. I know the government—I know what [Lockwood] agreed to; I know what [Lockwood] waived, but in this case it just—I'm not mad at anybody . . . and I'm thinking about that. I am not doing it yet, but I am thinking about it.

Lockwood's attorney renewed his objection to the drugs enhancement and expressed the hope that the judge grant a "dispensation" to appeal. The judge responded:

I don't know that I can [grant special leave to appeal]. I don't want to incur the wrath of the U.S. attorney. It just feels like the right thing to do here, to tell you the truth. * * * It wouldn't be the first or last time that I have been reversed, but this one is just troublesome to me. * * * I do believe very strongly that I have the authority to grant a special leave to appeal here. . . .

The judge allowed the prosecutor to respond regarding the enhancement, after which the judge announced Lockwood's sentence: 57 months' confinement, two years of supervised release, and a $100 special assessment. The judge also granted Lockwood special leave to appeal, despite Lockwood's affirmative waiver of that right.

Lockwood took up the district judge's offer and now argues on appeal that he is entitled to resentencing because the judge sentenced him on the basis of judge-found facts in violation of the Sixth Amendment. This argument, of course, rests on the Supreme Court's pronouncements in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), decided after Lockwood was sentenced. At argument, Lockwood requested a Paladino limited remand so that the district judge could answer whether he would have given Lockwood the same sentence had he known the sentencing guidelines were advisory rather than mandatory. United States v. Paladino, 401 F.3d 471 (7th Cir.2005). Much of the parties' arguments concerned whether the district judge rejected Lockwood's plea agreement in whole or in part, so Lockwood may also be seeking to have his sentence vacated and his case remanded for full resentencing. This distinction is irrelevant to the outcome of this case, for the reasons discussed below.

The government argues that we need not reach Lockwood's Booker arguments and should simply dismiss his appeal. As the government sees it, Lockwood knowingly and intentionally waived his right to appeal his sentence or the manner in which it was imposed pursuant to the plea agreement, which Lockwood concedes was valid and binding. Under simple contract principles and related caselaw, Lockwood cannot renege on his plea deal and therefore has no right to appeal his sentence. The government also takes issue with the fact that the district judge seemingly accepted the plea agreement, and sentenced Lockwood according to its terms, which meant that the entire agreement was binding and the judge could not pick and choose certain portions (e.g., the appellate waiver) to set aside.

We will first consider the actions of the district court. There is no question that the district court expressed reluctance to enhance Lockwood's sentence and to sentence him in accordance with the plea agreement and the guidelines. There is some debate, however, whether the district judge may have rejected the entire plea agreement or the portion containing Lockwood's appeal waiver. The Federal Rules of Criminal Procedure allow a district judge to reject plea agreements in their entirety. Fed.R.Crim.P. 11(c)(5). If a judge does so, Rule 11 requires that the judge make clear the rejection and openly advise the defendant that he may withdraw his guilty plea. Id. The judge did not do either in this case. As dissatisfied as the judge may have been with the plea agreement, we conclude that the judge accepted the plea agreement when he sentenced Lockwood in accordance with its provisions (albeit reluctantly).

We agree with Lockwood that the district judge's statements and actions could fairly be interpreted as a rejection of a portion of the plea agreement—specifically, paragraph 9(j), the provision containing Lockwood's appeal waiver. Rule 11 does not, however, allow for piecemeal acceptance of some portions of the plea agreement, but not others. For example, Rule 11(c)(1)(C) indicates types of agreed recommendations that do or do not bind the court once the agreement is accepted. In this case, ...