U.S. v. Miles

• Decision Date: 27 December 1993
• Docket Number: 92-9091,Nos. 92-9074,s. 92-9074
• Citation: 10 F.3d 1135
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Lynn MILES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gerald Jehoram GUSTUS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1135

10 F.3d 1135

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Lynn MILES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Jehoram GUSTUS, Defendant-Appellant.

Nos. 92-9074, 92-9091.

United States Court of Appeals Fifth Circuit.

Dec. 27, 1993.

Rehearing Denied Feb. 23, 1994.

Richard Alley, Fort Worth, TX (Court-appointed), for Gregory Lynn Miles.

Ira R. Kirkendoll, Federal Public Defender, Dallas, TX, for Gerald Jehoram Gustus.

Delonia A. Watson, Asst. U.S. Atty., Fort Worth, TX, for U.S. in No. 92-9074.

Joe C. Lockhart, Asst. U.S. Atty., Fort Worth, TX, for U.S. in No. 92-9091.

Paul E. Gartner, Jr., Asst. U.S. Atty., Richard H. Stephens, Fort Worth, TX, for U.S. in both cases.

Appeals from the United States District Court for the Northern District of Texas.

Before GOLDBERG, JOLLY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

These appeals turn on whether the district court reversibly erred by engaging in plea negotiations in contravention of Federal Rule of Criminal Procedure 11(e)(1). In asserting that it did, Gregory Lynn Miles and Gerald Jehoram Gustus challenge their convictions obtained through plea agreements. We REVERSE their convictions and VACATE their sentences. ¹

I.

Based upon five armed robberies over a two-month period in late 1991, Miles and Gustus were charged with conspiracy to commit robbery and four counts of robbery, all affecting interstate commerce, in violation of 18 U.S.C. Sec. 1951, and four counts of using a firearm in committing a crime of violence, in violation of 18 U.S.C. Sec. 924(c). And, Gustus was charged with an additional Sec. 924(c) count and robbery count.

Through plea agreements, Miles pled guilty to the conspiracy to commit robbery count, one Sec. 924(c) count, and a charge of possession of a firearm by a felon (violation of 18 U.S.C. Sec. 922(g)) ²; Gustus, to the conspiracy count and two Sec. 924(c) counts. The district court, however, rejected both agreements. Following the discussion at issue with the district court, Miles and Gustus entered into new agreements: Miles pled guilty to two additional Sec. 924(c) counts; Gustus, to one additional Sec. 924(c) count. The district court accepted their pleas, and imposed prison sentences on Miles and Gustus of approximately 58 and 63 years, respectively.

II.

Miles and Gustus contend that their convictions should be reversed because the district court participated in plea negotiations, in violation of Rule 11(e)(1). ³ Under the original plea agreements, Miles faced a sentence of approximately 17 years; Gustus, approximately 40. When the agreements were presented at the sentencing hearing in September 1992, ⁴ the district court, in addition to the indictment, had the following information, based on stipulated facts and presentence reports: Miles and Gustus employed handguns in the robbery of five restaurants within two months; both were on probation for aggravated robbery convictions from prior, joint conduct (the convictions had been obtained within two months of the first robbery at issue in this case); both had state charges pending against them for other robberies (in some of which they acted together); one of those other robberies in which both participated occurred after the robberies giving rise to the federal offenses (Gustus pled guilty and received a 35-year sentence; charges against Miles for that robbery were still pending); and, during one of the robberies at issue in the instant case, Gustus forced a female employee to perform oral sex on him.

Accordingly, the following colloquy, on which appellants base error, ensued:

THE COURT: Okay. One of the things that none of you have touched on is the statutory objective of 924(c) of Title 18. And Congress told me by that that I shall give a 20-year sentence on each one above the first one.

I think that's one of the things--though it doesn't specifically say so--I think that is one of the things that should be taken into account and might be a determinative factor under [U.S.S.G.] policy statement 6B1.2.

I am impressed that in Title 18 [Sec.] 924(c) Congress told me I shall not place on probation or suspend the sentence of any person convicted of a violation of that subsection, nor shall any term of imprisonment imposed under that subsection run concurrently with any other term of imprisonment, so on.

I don't think Congress could have made it any clearer to me what their intent is. Their intent is in crimes of this kind that that person be put in prison for five years the first time he commits an offense--is first convicted of one--and for 20 years each time he is convicted of one thereafter. That is what Congress told me they intended and expected of me.

Even if we did not let that control, I'm not satisfied that the sentences I can impose under the plea agreements in these cases adequately reflect the seriousness of the offenses.

I am not sure that they would adequately promote respect for the law, and I am not sure that they would provide just punishment. To the contrary, I believe they would do none of those things.

I don't believe the sentences in this case would provide adequate deterrence for the kind of conduct these defendants engaged in. And I would have some concern, if these defendants were to be released from prison, even with the sentences as long as they might be in this case, that the public would not be protected from the possibility of further crimes by these defendants.

And, therefore, I am not accepting either one of these plea agreements.

* * * * * *

[UNITED STATES ATTORNEY]: Can I ask a question? And I apologize, if it is an inappropriate question.

THE COURT: Yes.

[UNITED STATES ATTORNEY]: Is there anything short of a plea on all of the 924(c)s the court might consider?

THE COURT: I think your initial comment is correct--

[UNITED STATES ATTORNEY]: Thank you.

THE COURT: --that it would be inappropriate for me to say what I would or would not accept.

I will say this: If I was satisfied that these people likely would never get out of prison I would feel more comfortable.

[UNITED STATES ATTORNEY]: And the comment I had, Your Honor, is simply I don't want to continue wasting the court's time if we were to set a date for a plea next Friday with additional time, if we are just going to be wasting the court's time.

THE COURT: Well, it would just seem to me that in the Gustus case, if he had another 20 years to serve, and that in the Miles case, if he had another 40 years to serve beyond what is now contemplated--or that wasn't contemplated--that that could serve the objectives that I think were intended to be served.

Miles and Gustus contend that, through the quoted colloquy, the district court ran afoul of Rule 11(e)(1)'s admonition that "[t]he court shall not participate in ... [plea negotiation] discussions." A district court is free, of course, to reject a plea agreement, Fed.R.Crim.P. 11(e)(4), and may express its reasons for doing so. See United States v. Bean, 564 F.2d 700, 704 (5th Cir.1977) (reviewing reasons proffered by district court for rejecting plea agreement under abuse of discretion standard); cf. U.S.S.G. Sec. 6B1.2(a) (requiring that the court find, on the record, that a plea agreement adequately reflects the seriousness of offense conduct before accepting it). But, Rule 11(e)(1) prohibits absolutely a district court from "all forms of judicial participation in or interference with the plea negotiation process." United States v. Adams, 634 F.2d 830, 835 (5th Cir.1981); see also United States v. Corbitt, 996 F.2d 1132, 1134 (11th Cir.1993) (citing and quoting Adams for proposition that there is "an absolute prohibition on all forms of judicial participation" in plea negotiations); United States v. Barrett, 982 F.2d 193, 195 (6th Cir.1992) ("Courts ... have uniformly held that [Rule 11] means what it says: the court shall not participate in any plea agreement negotiations."); United States v. Bruce, 976 F.2d 552, 558 (9th Cir.1992) ("the unambiguous mandate of Rule 11 prohibits the participation of the judge in plea negotiations under any circumstances: it is a rule that ... admits of no exceptions.") (emphasis in original).

The reasons for the rule "admit[ting] of no exceptions", Bruce, 976 F.2d at 555, have been iterated by this and other circuits, but they merit brief reiteration. First and foremost, it serves to diminish the possibility of judicial coercion of a guilty plea, regardless of whether the coercion would cause an involuntary, unconstitutional plea. Adams, 634 F.2d at 838-39; see also Barrett, 982 F.2d at 194 ("The primary reason for Rule 11 is that a judge's participation in plea negotiation is inherently coercive"); Bruce, 976 F.2d at 556 ("judicial involvement in plea negotiations inevitably carries with it the high and unacceptable risk of coercing a defendant to accept the proposed agreement"). Second, such involvement "is likely to impair the trial court's impartiality. The judge who suggests or encourages a particular plea bargain may feel a personal stake in the agreement ... and may therefore resent the defendant who rejects his advice." Adams, 634 F.2d at 840; see also Barrett, 982 F.2d at 195 ("a judge's neutrality can be compromised"); Bruce, 976 F.2d at 557 ("Judicial involvement detracts from a judge's objectivity."). Third, "judicial participation in plea discussions creates a misleading impression of the judge's role in the proceedings. 'As a result of his participation, the judge is no longer a judicial officer or a neutral arbiter. Rather, he becomes or seems to become an advocate for the resolution he has suggested to the defendant.' " Adams, 634 F.2d at 841 (quoting and citing United States v. Werker, 535 F.2d 198, 203 (2d Cir.), cert. denied, 429 U.S. 926, 97 S.Ct. 330, 50 L.Ed.2d 296 (1976)); see also Bruce, 976 F.2d at 557 ("The loss of judicial integrity is particularly serious when ... the judge...