U.S. v. Moran, 05-3211.

• Decision Date: 28 June 2006
• Docket Number: No. 05-3211.,05-3211.
• Citation: 452 F.3d 1167
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luke A. MORAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

452 F.3d 1167

UNITED STATES of America, Plaintiff-Appellee, v. Luke A. MORAN, Defendant-Appellant.

No. 05-3211.

United States Court of Appeals, Tenth Circuit.

June 28, 2006.

John K. Henderson, Jr., Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Kansas, Wichita, Kansas, appearing for the Appellant.

Brent I. Anderson, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Kansas, Wichita, Kansas, appearing for the Appellee.

Before TACHA, Chief Circuit Judge, BALDOCK, and LUCERO, Circuit Judges.

TACHA, Chief Circuit Judge.

Following a felony indictment charging him with being a user of marijuana in possession of ammunition in violation of 18 U.S.C. § 922(g)(3), Defendant-Appellant Luke A. Moran pleaded guilty to a superseding information charging misdemeanor possession of marijuana under 21 U.S.C. § 844(a). Thereafter, the District Court discovered that Mr. Moran had told his drug counselor that he had not, in fact, possessed marijuana on the day he had admitted to doing so. The District Court withdrew its acceptance of Mr. Moran's guilty plea, and he later pleaded guilty to being a user of marijuana in possession of ammunition as charged in the original indictment. He now appeals the District Court's rejection of his guilty plea on the misdemeanor possession charge. We take jurisdiction under 28 U.S.C. § 1291, and because we conclude the District Court did not clearly err in determining that there existed no factual basis for the plea, we AFFIRM.

BACKGROUND

On May 18, 2004, Mr. Moran gave two men a ride from Hutchinson to Buhler, Kansas. Mr. Moran was carrying a concealed firearm at the time. Accounts differ, but at some point the two men pulled out their own weapons and shot at Mr. Moran as he tried to escape from the car. He was struck three times as he ran away from his car through a rural field. The two men then stole Mr. Moran's car, leaving him severely wounded. He was discovered the next morning by a driver on a nearby country road.

When the men were captured, they told the police that they had shot Mr. Moran because he had tried to steal their marijuana, which all three had been smoking in the car. According to Mr. Moran, however, the men kidnaped him at gunpoint. He claims he did not try to rob the men of the marijuana, and he did not consume any at that time.

Following an investigation into the matter, on September 21, 2004, Mr. Moran was charged in an indictment of being an unlawful user of a controlled substance in possession of ammunition on May 18, 2004.¹ See 18 U.S.C. § 922(g)(3). He posted bond and began participating in a drug treatment program as a condition of his pre-trial supervision. The government later charged Mr. Moran in a superseding information with one count of unlawful possession of marijuana on May 18, 2004. See 21 U.S.C. § 844(a).

Negotiations with the Government persuaded Mr. Moran to plead guilty to the misdemeanor possession count in exchange for the dismissal of the felony user-in-possession count. The District Court held a hearing under Fed.R.Crim.P. 11 and accepted Mr. Moran's guilty plea on January 31, 2005. Pursuant to the agreement, the Government dismissed the original indictment.

Two days later and prior to the entry of judgment, however, the District Court sent a letter to all counsel setting forth its concern that Mr. Moran's plea to the possession charge would permit him to continue to possess firearms. The letter also referenced a memorandum that Mr. Moran's probation officer had filed with the court indicating that Mr. Moran told his drug counselor the day after the plea hearing that he was not guilty of the charge and had been forced by the Assistant United States Attorney and his own lawyer to enter a plea. Accordingly, the District Court set another hearing for February 14 to determine the validity of the plea it had already accepted.

At the hearing, the court appeared to acknowledge that prosecutorial discretion precluded inquiry into why the Government agreed to dismiss the indictment in exchange for Mr. Moran's plea to the possession count. Nevertheless, the court expressed grave concern regarding Mr. Moran's inconsistent statements and the validity of his guilty plea. Mr. Moran's drug counselor was called to the stand and testified under oath precisely what the probation officer's memo had reported—that Mr. Moran told him (the counselor) that he was directed by the Government and his attorney to say at his plea hearing that he was in possession of marijuana on May 18, 2004, when in fact Mr. Moran was not in possession of marijuana at that time. The drug counselor also testified that a week later, he asked Mr. Moran whether he wanted to change his statement, and Mr. Moran declined.

A detective involved in the investigation of the May 18 events was also called to the stand. He testified that when he questioned Mr. Moran about what had happened, Mr. Moran told him that he did not possess marijuana that day. The detective also testified, however, that he did not believe Mr. Moran when he made that statement. Moreover, testimony at the hearing established that Mr. Moran frequently used marijuana. Mr. Moran's drug counselor stated that Mr. Moran has a problem with using marijuana. He tested positive for the drug twice in October 2004, and he told the detective that while he had not possessed marijuana on May 18, he would likely test positive for it because the two men in the car had been smoking it in his presence. Finally, the court afforded Mr. Moran the opportunity to testify himself at this hearing, but Mr. Moran chose not to.

Following the hearing, the District Court withdrew its acceptance of Mr. Moran's guilty plea to possessing marijuana on May 18, 2004. It reasoned:

[M]y acceptance of his plea is withdrawn and rejected. This case is set for trial. And this man, I believe, did not tell me the truth when he came in here before and he is placed in custody as of now pending trial and there will be no plea. I will not accept another plea from him.

Later, the court underscored that it was not voiding any plea agreement between Mr. Moran and the Government. Rather, it simply refused to accept a guilty plea after it became clear that there was not a factual basis for it:

After hearing the evidence, I withdrew my acceptance of the plea. I want to make it clear on the record that I did not touch the plea agreement. I don't have any authority to void a plea agreement. That's a contract between the Government and the Defendant. All I did was withdraw my acceptance of the plea based on the evidence that I heard. And I should say parenthetically that I offered the Defendant the opportunity to testify at the hearing ... and he did not do so. So based on the evidence that I heard, I withdrew my acceptance of the plea.

. . . .

[H]ad I known at the time ... of this situation, I would not have accepted it. And the Defendant has brought this on himself by going to his alcohol counselor the day after I accepted the plea and telling the alcohol counselor that he didn't do it. Now, I gave him the opportunity to speak the other day at the hearing. Of course, I'll hear anything he wants to say today. But when a defendant comes before me and admits under oath that he committed a crime, then I don't want the record cluttered with a claim to someone else that he was forced to do it by his lawyer, forced to do it by the prosecutor, and most importantly, that he was not guilty .. .

The District Court vacated the guilty plea. Thereafter, the original indictment charging Mr. Moran with being a user of marijuana in possession of ammunition was reinstated, and he pleaded guilty to that offense on February 15, 2004. He was sentenced to fifteen months' imprisonment.² On appeal, Mr. Moran contends that the District Court erred in withdrawing its acceptance of his guilty plea to the misdemeanor possession charge because there was a sufficient factual basis to support it.

ANALYSIS

It is well-established that a criminal defendant does not have the absolute right to plead guilty. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Instead, "[t]his phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances." Id. These safeguards are contained in Fed. R.Crim.P. 11, which requires, inter alia, the district court to ascertain whether the defendant understands the charges against him as well as his rights not to plead guilty and to a jury trial. Fed.R.Crim.P. 11(b)(1).

Significant to this case, the Rule also requires the district court to determine that a factual basis supports the guilty plea. Fed.R.Civ.P. 11(b)(3); United States v. Barker, 681 F.2d 589, 592 (10th Cir.1982). The factual basis for the plea need not come solely from the defendant's statements at the plea hearing. See Howard v. United States, 135 F.3d 506, 509 (7th Cir.1998) (stating that "any finding of an adequate factual basis at the initial plea hearing is necessarily preliminary"). Rather, the district court "may look to answers provided by counsel for the defense and government, the presentence report, `or . . . whatever means is appropriate in a specific case'—so long as the factual basis is put on the record." United States v. Smith, 160 F.3d 117, 121 (2d. Cir.1998) (quoting United States v. Maher, ...