U.S. v. O'Neill

• Decision Date: 10 February 2006
• Docket Number: No. 04-2589.,04-2589.
• Citation: 437 F.3d 654
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James O'NEILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

437 F.3d 654

UNITED STATES of America, Plaintiff-Appellee, v. James O'NEILL, Defendant-Appellant.

No. 04-2589.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 2006.

Decided February 10, 2006.

Diane MacArthur, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Richard H. Parsons, Andrew J. McGowan, Jonathan E. Hawley, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before POSNER, EVANS, and SYKES, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Mario Morales was a crooked Chicago police officer who soiled his badge by ripping off drug dealers. The means to that end—described in an indictment alleging a federal RICO violation, see 18 U.S.C. § 1962(d)—were fairly simple, and for our purposes we recount just one of his brazen acts of criminality.

On a May day in 2001, Morales, cloaked in the trappings of a narcotics officer— police badge around his neck and service revolver in hand—entered the residence of a Chicago drug dealer named Jerome Carman. Morales had two nonpolice-officer cohorts with him, James O'Neill (the defendant in this case) and Gerald Cooper. Morales, O'Neill, and Cooper proceeded to relieve Carman of more than 100 kilograms of marijuana and $10,000 in cash. Morales got most of what was obtained.

Eventually, Morales, O'Neill, Cooper, and two others were charged in a superseding indictment with a bevy of charges. Morales ultimately entered a guilty plea to two counts: RICO conspiracy (count 1) and possessing a firearm during and in relation to a drug trafficking crime (count 9). He was sentenced to 210 months on the racketeering count and a consecutive 84 months on the gun charge, a total of 294 months.

The government, believing that O'Neill's substantial cooperation was critical to its case against Morales, didn't want him to receive a stiff (Morales-type) sentence. That cooperation, among other things, included wearing a wire while meeting several times with an armed Morales. Accordingly, a negotiated lock-in guilty plea under Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure was agreed to. The agreement, upon O'Neill's guilty plea to the two same charges that Morales was convicted under, called for a total sentence of 124 months. Unfortunately for O'Neill, the judge balked. He said:

I will tell you that I am inclined not to agree to have the sentence bound by the specific sentence you have. I am not saying that I would not ultimately impose that sentence. It is possible that I might impose that sentence, and it is possible that I might be persuaded that that is the appropriate sentence. But I don't think I am willing to agree to a plea agreement that says that is the only sentence I can impose.

It is really a question—as I said, at the outset, it is really a question of—I don't have any quarrel with the proposition that Mr. O'Neill should get credit and potentially very significant credit for what he has done in assisting the government, wearing the wire and being willing to testify against the people in this case, enabling you to charge new people in the case, enabling you in part to go after other people who aren't even in this case and so on, but I object to a provision which basically says this is the exact sentence you have to impose. So I am not going to go along with that provision.

The judge then told O'Neill that he could back out of the plea deal, adding:

As I said, I have no quarrel with the 5K1.1 motion, and that motion, I will tell you, unless I hear something between now and when you come back that I have not heard yet, that motion will be granted, and it is simply a question of deciding how much of a reduction that Mr. O'Neill would get as a result of that.

Should it be the approximately 100 months off . . . the low end, or should it be something lesser than that? Quite frankly, I don't think it would be greater than that, but should it be 100 months or should it be something less? In fact, I can't imagine circumstances in which it would be greater than that, I will just tell you that.

But I am not ruling out the possibility that I would agree to that sentence after I, you know, gave you a chance to give me another pitch for that. But unless this is rewritten in a way that gives me leeway in making my own determination of how much of a decrease should be given, then I am not going to go along with it.

So I am—I don't know if the word is rejecting or disagreeing. I am disagreeing or rejecting the term of the particular term of the plea agreement that provides that the sentence will be 124 months. I am not rejecting the part that provides for a departure under 5K1.1, but you are going to have to decide on your end what it is you want to do at this point.

Rebuffed by the judge, the parties returned to the drawing board. Three weeks later the case was again in court, and the judge was advised that the parties were negotiating in an attempt to draft a plea agreement that would be acceptable to the court. During this proceeding, the judge observed:

I will tell you this. I know this isn't your problem, but to the extent you have a problem, I don't have a problem with there being a low end on it, okay. But what I do have a problem with is something that says that it has got to be this or this or, you know, somewhere in here.

Eventually responding, O'Neill's counsel observed:

So, Judge, it leaves us between—sort of between a rock and a hard place. Mr. O'Neill desires to plead guilty, but, Judge, to put it, if I may speak freely, he is afraid of getting whacked, and basically by having an agreement that provides for—it basically would be a free-fall upward departure.

Responding to this comment, the judge remarked:

There is no free-fall upward departure. I don't even know what you are talking about. You have got a—he has pled to two counts, okay. And assuming I go along with the agreement that has been made to drop the other counts, you know what the maximum is. You know what the range is. I have told you that I am willing to give some consideration under 5K1.1 to his cooperation. So the term, upward departure, doesn't really apply here.

The question is the extent of the downward departure. That is what we are talking about . . . .

. . .:

I will tell you what I said a minute ago and what I said in Mr. Cooper's case is in these cases I am not willing to agree upfront to a specific sentence or even a range of sentences. And you already know what the range is. So like I said, it is 259 on down.

The parties next appeared in court two weeks later with a modified plea agreement in hand. The rather complicated sentencing provision contained in paragraph 19 read:

19. At the time of sentencing, the government shall make known to the sentencing judge the extent of defendant's cooperation, and, assuming the defendant's full and truthful cooperation, shall move the Court, pursuant to Sentencing Guideline 5K1.1 and 18 U.S.C. § 3553(e), to depart from the applicable sentencing guidelines range and the statutory minimum sentences provided for by 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1)(A), and to impose the specific sentence agreed to by the parties as outlined below. Defendant understands that the decision to depart from the applicable guidelines range and the statutory minimum sentence rests solely with the Court. However, this Plea Agreement is governed, in part, by Federal Rule of Criminal Procedure 11(c)(1)(C). That is, the parties have agreed that the sentence imposed by the Court shall include a term of imprisonment in the custody of the Bureau of Prisons of between 100% and 50% of the low end of the combined sentencing range for offenses set forth in Counts One and Nine. Each party reserves the right to argue at sentencing their position as to the amount of the downward departure within this range. Other than the agreed term of incarceration, the parties have agreed that the Court remains free to impose the sentence it deems appropriate. If the Court imposes a sentence within this agreed range of incarceration, the defendant may not withdraw this plea as a matter of right under Federal Rule of Criminal Procedure 11(c) and (d). If, however, the Court refuses to impose a sentence within this agreed range of incarceration, thereby rejecting the Plea Agreement, or otherwise refuses to accept the defendant's plea of guilty, this Agreement shall become null and void and neither party will be bound thereto.

With O'Neill's guilty plea (which, by the way, he has never asked to withdraw) in place, the judge responded to paragraph 19 by saying:

The way that the sentence will be calculated is this. I will figure out what the sentencing range is under the sentencing guidelines, including whatever mandatory minimums and consecutive things apply, which I have discussed with you on a previous occasion. That will give us a range. What this document says is that whatever the low end of the range is, that your sentence is going to be somewhere between the low end of that range and half of that.

After all was said and done, following a lengthy recitation of O'Neill's significant cooperation, the government recommended a sentence, using a 5K1.1 motion for a downward departure as the vehicle to get there, of 124 months. O'Neill's attorney seconded the motion. The judge, however, despite observing that O'Neill's cooperation "was significant in taking down Mr. Morales," opted for a stiff sentence, noting that O'Neill was a danger to the community who needed "to be incapacitated." Wrapping up, the judge said:

I am going to grant the motion for a departure, but it is not going to be a departure beyond the low end of the applicable range. I am departing off the high end of the range.

The sentence imposed was 224 months, 140 months on count one and a consecutive 84 months on count nine. O'Neill appeals his sentence, arguing, among other things, that the judge impermissibly injected himself into the...