U.S. v. Robinson

• Decision Date: 25 March 1994
• Docket Number: No. 93-2128,93-2128
• Citation: 20 F.3d 270
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Susan P. ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 270

20 F.3d 270

UNITED STATES of America, Plaintiff-Appellee, v. Susan P. ROBINSON, Defendant-Appellant.

No. 93-2128.

United States Court of Appeals Seventh Circuit.

Argued March 2, 1994.

Decided March 25, 1994.

John W. Vaudreuil, Asst. U.S. Atty., Larry Wszalek (argued), Office of U.S. Atty., Madison, WI, for plaintiff-appellee.

C. Peter Erlinder (argued), St. Paul, MN, for defendant-appellant.

Before POSNER, Chief Judge, and CUMMINGS and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

Susan P. Robinson pled guilty to the robbery of six banks, 18 U.S.C. Sec. 2113(a), and was sentenced to 135 months' imprisonment and required to pay $24,358 as restitution. She raises ten issues on appeal. We affirm.

Background

In 1992, Robinson was a 41-year-old third-year law student in Minnesota. She committed six bank robberies in Wisconsin within three months. In October 1992, a search warrant was executed at defendant's home in Minneapolis. Defendant was indicted in the Western District of Wisconsin for the six Wisconsin bank robberies. Later that month, the District of Minnesota ordered that defendant be detained and transported to the Western District of Wisconsin, where she was arraigned. Following the denial of defendant's motion for a change of venue, which was summarily affirmed by this court, ¹ defendant pled guilty to all six counts of bank robbery.

Discussion

I. Waiver

A number of the issues raised by defendant and addressed later in this opinion can be disposed of on waiver grounds. Generally, a defendant who fails to raise a sentencing challenge before the sentencing court waives the issue on appeal. United States v. Rivero, 993 F.2d 620, 622 (7th Cir.1993). In addition, a plea of guilty constitutes a waiver of non-jurisdictional defects occurring prior to the plea. United States v. Markling, 7 F.3d 1309, 1312 (7th Cir.1993). An exception exists if the plea is conditioned on preserving specified issues for appeal. That conditional plea should be in writing, Fed.R.Crim.P. 11(a)(2), but we have held that the conditions can also be sufficiently indicated in a transcript of the sentencing hearing. United States v. Yasak, 884 F.2d 996, 999 (7th Cir.1989). In this case, however, there is no writing indicating the existence of a conditional plea, and nothing in the transcript indicates the existence of any type of plea agreement at all. Cf. Markling, 7 F.3d at 1313 (government agrees with defendant that plea was conditioned on reservation of right to appeal ruling on motion to suppress; letter from government outlines conditions of plea). The transcript shows the contrary:

"THE COURT: Do you understand that this is not pursuant to a plea agreement?

DEFENDANT: Yes.

* * *

THE COURT: The letter which the court has received from the government in this matter advises that there is no plea agreement between you and the government. Is that your understanding?

DEFENDANT: Yes."

Throughout the two volumes of pleadings and nine volumes of transcripts, there is not even a hint that a plea agreement ever existed. Defendant maintains (and the government does not disagree) that at some point the government offered to allow her to plead guilty to one of the six counts, and the other five would be dismissed. She purportedly accepted, ² but asked for a change of venue. The government allegedly refused to accept this condition, and the case proceeded to trial. ³ Even when a defendant pleads guilty unconditionally or fails to object at sentencing, the court may review non-jurisdictional errors for plain error. Fed.R.Crim.P. 52(b). Of the issues addressed below which were waived, however, we find that no error occurred, and thus it is not necessary to consider the "plain" or prejudicial aspects of the plain error doctrine.

II. Acceptance of Responsibility After Untimely Guilty Plea

Defendant argues that the court abused its discretion in refusing to reduce her sentence a third level for acceptance of responsibility. This was not challenged at the sentencing hearing, and thus has been waived. United States v. Rivero, 993 F.2d at 623. The court may review for plain error. Id. A sentence based on an incorrect guideline range constitutes an error affecting substantial rights and can thus constitute plain error. United States v. Seacott, 15 F.3d 1380 (7th Cir.1994); United States v. Kopshever, 6 F.3d 1218, 1222 (7th Cir.1993). The district court's finding of whether a defendant has accepted responsibility is factual and will be overturned only if clearly erroneous. United States v. Yanez, 985 F.2d 371, 374 (7th Cir.1993). The defendant bears the burden of proving by a preponderance of the evidence that she is entitled to a reduction under 3E1.1(b). Rivero, 993 F.2d at 622.

The district court adopted the PSI's recommendation that a two-level reduction for acceptance of responsibility was appropriate, but a third level was not warranted because the guilty plea was not timely. The United States Sentencing Guidelines (U.S.S.G.) permits a two-level reduction for acceptance of responsibility, and an additional level of reduction if authorities have been assisted in the investigation by defendant's:

"(1) timely providing complete information to the government concerning his own involvement in the offense; or

(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently." U.S.S.G. Sec. 3E1.1(b).

The commentary adds the following:

"Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction ... will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right." U.S.S.G. Sec. 3E1.1, Commentary, Application Note 3.

Defendant maintains that she is being punished for pursuing a motion to change venue prior to pleading guilty. ⁴ Defendant argues that the "only reason for any delay in formally entering her plea of guilty was a constitutional issue [right to counsel of choice] that related to the place of sentencing, not to her culpability."

The record clearly shows defendant was challenging her culpability, not merely seeking a more convenient "place of sentencing." The most telling fact is the absence of any indication that defendant then wished to change venue and have Professor Erlinder represent her for the purpose of facilitating the negotiation of a fair plea agreement, entering a guilty plea, and proceeding on to the sentencing hearing. The motion for change of venue expressly cites Fed.R.Crim.P. 21, which applies to requests for transfer for purposes of proceeding to trial. The arguments before the district court and the district court's decision analyzed the various factors relevant under Rule 21. If defendant wanted a change of venue for the limited purpose of entering a guilty plea, the Rule 21 factors such as convenience of parties and witnesses would have no applicability. ⁵

It is Rule 20(a) which permits transfer from one district to another for purposes of entering a plea of guilty and sentencing in the district where defendant was found, such as when defendant is arrested at her home for a crime she committed elsewhere. See 2 Charles A. Wright, Federal Practice & Procedure: Criminal 2d Secs. 321-323 (1982).

Even if the motion had not cited Rule 21(b), the record fails to indicate defendant was seeking a change of venue for any purpose other than to go to trial. The district court record contains numerous arguments on this issue from defendant herself, from Professor Erlinder, and from both of the attorneys appointed as defense counsel. All arguments imply that if the motion for change of venue were granted, defendant would proceed to trial. For example, in one letter defendant wrote to the magistrate judge that the change of venue was vital so that she could more easily "prepare a defense. Anyone I need to contradict or disprove government evidence is in Minnesota.... That is one my points, access to trying to obtain the evidence has been cut off. Professor Erlinder has arranged for expert witnesses who need access to me in preparing a defense."

Still, defendant insists that "it was clear to all parties that defendant intended to plead guilty and that preparation for trial was not necessary." The only reference to any plea negotiations is in Professor Erlinder's letter quoted above. The pre-trial proceedings were extensive, but not due to plea negotiations. Instead, the pre-trial proceedings indicated defendant was challenging the factual case being prepared by the government. For example, defendant filed a motion in limine to suppress statements she made to the police during the execution of a search warrant at her home, arguing that she was not advised of her Miranda rights. Defendant also filed motions for disclosure of destruction of evidence, for discovery and inspection of evidence, for exculpatory evidence, and for early disclosure of Jencks Act material. The parties filed proposed questions for voir dire, motions in limine, proposed jury instructions, and verdict forms. The government filed a demand for notice of defendant's intention to offer a defense of alibi. (While defendant was given several deadlines, there is no response in the record.) The government also maintains that it prepared 35 witnesses and assembled 70 exhibits. Pre-trial hearings were held, and numerous pre-trial orders were entered.

Given this chain of pre-trial events, defendant has failed to show by a preponderance of the evidence that she demonstrated her "acceptance of responsibility" to the district court in a timely fashion....