U.S. v. Pogue, 87-2286

• Decision Date: 12 January 1989
• Docket Number: No. 87-2286,87-2286
• Citation: 865 F.2d 226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy J. POGUE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 226

865 F.2d 226

UNITED STATES of America, Plaintiff-Appellee, v. Roy J. POGUE, Defendant-Appellant.

No. 87-2286.

United States Court of Appeals Tenth Circuit.

Jan. 12, 1989.

Robert N. Miller, U.S. Atty., Bruce F. Black, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.

Roy J. Pogue, pro se.

Before McKAY, SEYMOUR, and HIGGINBOTHAM, ^* Circuit Judges.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8. The cause is therefore ordered submitted without oral argument.

On October 22, 1985, defendant pled guilty to two counts of wire fraud under 18 U.S.C. Sec. 1343. At that time, he was informed by the district court that he faced a maximum possible sentence of ten years imprisonment and a $2,000 fine. One month later, the district court imposed a sentence of four and one-half years prison time and five years probation on the respective counts. As a condition of probation, the court ordered defendant to make restitution to two of the banks he had defrauded in the total amount of $1,758,091.14, pursuant to the Victim and Witness Protection Act, 18 U.S.C. Sec. 3579 (renumbered as 18 U.S.C. Sec. 3663 effective Nov. 1, 1986).

In June 1987, defendant filed a motion to vacate or correct his sentence pursuant to 28 U.S.C. Sec. 2255, raising the following grounds in support of the relief requested:

(1) Breach of defendant's plea agreement, which did not include any provision regarding restitution;

(2) Failure to inform defendant prior to pleading that restitution could be a part of the sentence imposed; and

(3) Failure to give proper consideration to the factors governing calculation of restitution.

The district court denied defendant's motion, and this appeal followed.

I.

When the government obtains a guilty plea based upon an agreement between the defendant and the U.S. Attorney, the agreement must be fulfilled in order to maintain the integrity of the plea. United States v. Stemm, 847 F.2d 636, 637 (10th Cir.1988). In considering any claim that such an agreement has been breached, we must first determine the nature of the prosecutor's promise. Id. This determination must be based upon "what the defendant reasonably understood when he entered his plea," without "resort[ing] to a rigidly literal approach in the construction of language." United States v. Greenwood, 812 F.2d 632, 635 (10th Cir.1987). The plea agreement in this case provided only that the government would bring no further charges in return for defendant's agreement to plead guilty. The agreement contained no provision regarding sentencing, and the government was free at sentencing to "make any statements in ... aggravation." See Plea Agreement, Exhibit A. Therefore, the government's recommendation and the Court's imposition of restitution could not have been contrary to defendant's reasonable understanding regarding sentencing. See United States v. Pomazi, 851 F.2d 244, 250-51 (9th Cir.1988) (government did not breach plea agreement by recommending restitution where plea agreement silent as to sentencing).

II.

The second ground advanced in the motion is more problematic. At the time defendant changed his plea to guilty, he was entitled to an explanation of the consequences of conviction, including the court's authority to order restitution. See Fed.R.Crim.P. 11(c)(1), as amended effective August 1, 1985; see e.g., United States v. Corn, 836 F.2d 889, 893 (5th Cir.1988). Both the record of defendant's plea hearing and his written statement in advance of plea corroborate defendant's claim that he was not informed by the district court of the possibility of restitution prior to entering his plea. Indeed, absent testimony from former defense counsel, who has never been called upon to relate what information, if any, he provided defendant on the subject, the earliest we can say defendant knew he could be ordered to pay restitution was thirty minutes before sentencing, when the government first served defendant with its motion for the $1,758,091.14 in restitution.

The government essentially concedes that Rule 11 was violated, but argues that neither vacatur of defendant's conviction nor correction of his sentence is warranted at this late stage in the proceedings. The government relies on United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), in which the Supreme Court indicated that a violation of Rule 11 that does not implicate constitutional or jurisdictional concerns will not support a collateral attack on a guilty plea unless the error resulted in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." Id. at 783-84, 99 S.Ct. at 2087-88. In the government's view, such exceptional circumstances do not obtain here, and the rejection of defendant's Rule 11 claim should therefore be affirmed. The government emphasizes that defendant admittedly knew about the potential for restitution prior to imposition of sentence but, despite that knowledge, persisted with his guilty plea and took no appeal from his sentence. The district court agreed with the government's position, and summarily denied defendant's motion on this basis.

Before we address defendant's explanation for not abruptly withdrawing his plea at sentencing or at least raising some objection to restitution on a direct appeal, we note several important factors that distinguish this case from Timmreck. First and foremost, the sentence actually imposed in Timmreck did not exceed the maximum penalty the defendant had been (inaccurately) warned about, so the Court could properly conclude that the defendant had not suffered any prejudice as a result of the initial understatement of the maximum potential sentence. See id. at 782-83, 99 S.Ct. at 2086-87. This is also true of the several cases from this circuit that have denied relief under Sec. 2255 for Rule 11 violations. See United States v. Sisneros, 599 F.2d 946, 948-50 (10th Cir.1979); United States v. Eaton, 579 F.2d 1181, 1183 (10th Cir.1978); Evers v. United States, 579 F.2d 71, 72-3 (10th Cir.1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1253, 59 L.Ed.2d 478 (1979); United States v. Hamilton, 553 F.2d 63, 66 (10th Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); see also Hicks v. Oliver, 523 F.Supp. 64, 67 (D.Kan.1981) (summarizing the thrust of Timmreck and Eaton as follows: "Courts may grant relief ... only where the total custodial time [actually imposed] ... exceeds the maximum possible sentence which the court told the defendant he might receive"). In the instant case, however, the $2,000 fine defendant was advised about prior to his plea is not remotely comparable in amount to the $1,758,091.14 restitution ultimately ordered by the district court. And this is not just a matter of money, because defendant may serve his five-year probation term in prison if he fails to make restitution. In short, defendant can realistically claim prejudice not presented in Timmreck or similar cases from this circuit.

Second, the Court found it significant in Timmreck that the defendant "[did] not argue that he was actually unaware of the [potential sentence] or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim was of a technical violation of the Rule." United States v. Timmreck, 441 U.S. at 784, 99 S.Ct. at 2087. By contrast, defendant here maintains, not without credibility on this record, that he was unaware of the possibility of restitution until he heard about it at sentencing and that, had he been told of his immense exposure to financial liability, he would not have agreed to plead guilty.

Finally, in Timmreck, the defendant's Sec. 2255 motion was denied only after an evidentiary hearing at which former defense counsel testified that it was his routine practice to inform his clients about the very aspect of the defendant's potential sentence that the trial court had failed to explain (i.e., the mandatory special parole term under 21 U.S.C. Sec. 841). Id. at 782, 99 S.Ct. at 2086. This consideration is absent in the present case, where defendant's Sec. 2255 motion was denied without a hearing or comparable evidentiary development, and therefore without an opportunity to examine the possibility of prejudice.

All of these distinctions would be beside the point, however, if, as the government contends, defendant was given an opportunity to withdraw his plea after he was...