U.S. v. Plisek
| Decision Date | 17 August 1981 |
| Docket Number | No. 80-1293,80-1293 |
| Citation | 657 F.2d 920 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Karel PLISEK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Chester L. Blair, Chartered, Chicago, Ill., for defendant-appellant.
James L. Sanders, Asst. U. S. Atty., Robert W. Tarun, Deputy Chief, Crim. Receiving and Appellate Div., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and PELL, Circuit Judge.
The defendant-appellant, Karel Plisek, appeals from a judgment which imposed a sentence of imprisonment of four years with mandatory special parole of four years to follow. The sentence followed a plea of guilty to one count of importing cocaine into the United States in violation of 21 U.S.C. § 952(a). The maximum penalty for a conviction is a term of imprisonment of fifteen years, a fine of $25,000, and a special parole term of not less than three years. Plisek does not challenge his conviction, but rather only the claimed severity of his sentence.
On October 21, 1979, the defendant was arrested at the O'Hare Airport International Terminal as he debarked from a flight from the Netherlands, when a search of the defendant's clothing during customs processing revealed that he was carrying approximately eight ounces (200.26 grams) of cocaine. The Drug Enforcement Agency (DEA) tested the drug and found that it was approximately eighty percent pure. The DEA estimated that the value of that amount of such high purity cocaine was approximately $32,000, and that the street value would be considerably higher as it would be diluted before sale or use.
On November 20, 1979, a two count indictment was returned against the defendant. Count one charged him with knowingly and intentionally importing 200.26 grams of cocaine into the United States in violation of 21 U.S.C. § 952(a). Count two charged him with possessing, with intent to distribute, approximately 200.26 grams of cocaine in violation of 21 U.S.C. § 841(a)(1).
On November 27, 1979, Plisek pleaded not guilty to both counts. Sometime thereafter the attorney for the Government and defense counsel reached a plea agreement whereby the defendant agreed to plead guilty to both counts of the indictment, and the Government agreed to recommend incarceration without specifying any particular period of time, and to limit its statement in aggravation to pointing out a 1971 misdemeanor conviction.
On January 21, 1980, the defendant appeared before the trial court and entered a plea of guilty to count one of the indictment. The defendant then attempted to plead guilty to count two of the indictment, at which time in a colloquy with the judge, the defendant denied he had any intention of distributing the cocaine, which he was going to keep for himself. The trial court then determined that there was an insufficient factual basis for a guilty plea, and decided to proceed as if count two would be dismissed.
On February 25, 1980, the defendant appeared for sentencing on count one of the indictment. The trial court turned a copy of the presentence report over to defense counsel, and afforded him an opportunity to review it with the defendant. The court then asked the defense counsel, "Do you see anything in the presentence report that you find inaccurate or that you want to elaborate on?" The defendant's attorney questioned an allegation that his client had traveled to Peru but stated that, "(o)ther than that it seems to be the facts seem to be accurate."
The court then asked the Government for its statement. The Government made brief remarks noting (1) the high degree of purity of the drug as giving rise to a reasonable inference that it was not intended for personal consumption; and (2) "the documentation of Mr. Plisek's prior record, both arrests and convictions."
The defense then introduced testimony and argument in mitigation, claiming that the defendant's drug use was induced by the stress caused by his involvement in a prior trial in which he was accused of murder and acquitted by a jury on a plea of self-defense. The Government responded that none of the defense character witnesses were aware of the defendant's alleged use of cocaine to alleviate stress, and that the defendant's story that he purchased the cocaine with money he had planned to use to purchase antiques in Amsterdam was inconsistent with the defendant's financial background and self-proclaimed "frugal lifestyle." The Government concluded by recommending incarceration.
The trial court then conducted a wide-ranging review of the presentence report, commenting on matters he found pertinent, and allowing defense counsel to respond to each item considered. The court first noted that the Government considered the plea agreement to have been breached by the defendant's refusal to plead to the facts underlying count two of the indictment, which had caused the court to reject that plea. The Government stated that had the defendant complied it would have rested on the presentence report and made no recommendations, but in the circumstances was recommending incarceration although not specifying any particular time.
The trial court then noted several factors, particularly (1) the serious nature of the offense; (2) the defendant's difficulties with the Immigration and Naturalization Service; (3) the defendant's special status as a grantee of political asylum in this country; (4) the defendant's two recent misdemeanor convictions for shoplifting; and, (5) the circumstances of the defendant's arrest and acquittal on the prior homicide charge. Defense counsel had full opportunity to respond to the court's concerns in each of those areas, and attempted to explain the defendant's involvement in each of the prior offenses. At no time did defense counsel object to the accuracy of the information which the court considered in the report. The court then sentenced the defendant to five years incarceration and four years mandatory special parole. Defense counsel made further arguments in mitigation, emphasizing the defendant's reliance on the failed plea agreement. The trial court reconsidered the sentence in light of those arguments and the presentence report's indication that the average prison sentence for this offense was just under four years. The court therefore reduced the five year period of incarceration to four years. The Government then moved to dismiss count two and the trial court granted that motion.
The defendant appeals from the sentence imposed by the district court contending that the court abused its discretion by placing undue emphasis on the arguments of the Government while placing little weight on the defendant's reliance on the plea agreement. The defendant also contends that the court erred by first "misinterpreting" the presentence report, and then by giving improper weight to certain matters contained in the report. Finally, the defendant claims the sentence was simply too harsh in light of sentencing statistics, the nature of the drug involved, and the defendant's good character.
The defendant contends that the trial court abused its discretion by "placing a heavy emphasis on the arguments of the government while placing little weight on the reliance of the Defendant on the government's prior agreement not to present such arguments." The defendant argues that the terms of a plea agreement limited the Government's right to make such argument, and that the court erred by hearing and giving credence to the Government's statements.
We note preliminarily that it is quite clear from the record that the defendant voided the plea agreement by failing to comply with its terms, which required that he plead guilty to both counts of the indictment. The defendant contends that he attempted to do so, but that the trial court, by refusing to accept his guilty plea to count two of the indictment, forced him to abrogate the agreement. We do not find this reasoning persuasive. It is incumbent upon the trial court, under Rule 11(f) of the Federal Rules of Criminal Procedure, to determine whether there is a factual basis for a guilty plea before entering judgment. It is well settled in this circuit that the failure of the defendant to admit to the factual basis of a plea is the equivalent of a plea of not guilty, and that "a district judge shall not accept a guilty plea until he has determined that there is a factual basis for the plea." United States v. Wetterlin, 583 F.2d 346, 352-53 (7th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979) (emphasis in original). It is disingenuous of the defendant to contend in these circumstances that he relied on the Government to continue to comply with the terms of the plea agreement which the defendant himself had breached. We therefore find no abuse of the trial court's discretion in hearing the Government's argument in aggravation. The defendant's contention that the trial court improperly "weighed" the Government's arguments is similarly without merit.
As this court recently noted in United States v. Hedman, 630 F.2d 1184, 1201 (7th Cir. 1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981), An examination of the brief remarks in aggravation the Government offered, and the trial court's response to those remarks, fails to reveal any such abuse.
The only statements by the Government noted (1) the large amount and high degree of purity...
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