U.S. v. Sahlin, 04-1324.

• Decision Date: 22 February 2005
• Docket Number: No. 04-1324.,04-1324.
• Citation: U.S. v. Sahlin, 399 F.3d 27 (1st Cir. 2005)
• Parties: UNITED STATES of America, Appellee, v. Gary SAHLIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

399 F.3d 27

UNITED STATES of America, Appellee, v.Gary SAHLIN, Defendant, Appellant.

No. 04-1324.

United States Court of Appeals, First Circuit.

Submitted February 18, 2005.

Decided February 22, 2005.

Mark E. Howard, Assistant United States Attorney, and Thomas P. Colantuono, United States Attorney, on brief for appellee.

Gordon R. Blakeney, Jr. on brief for appellant.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

This appeal requires us to consider the effect of the Supreme Court's decision in United States v. Booker,543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), in cases involving guilty pleas.

Gary Sahlin pled guilty and was sentenced to twenty years of imprisonment for armed bank robbery and use of a semi-automatic weapon during a crime of violence.He raises for the first time on appeal several challenges to both his guilty plea and his sentence.Sahlin argues that Booker entitles him to withdraw his plea of guilty because he had an erroneous understanding of the sentencing procedures, that Booker changed the sentencing system, and so his plea is invalid and involuntary.We hold that Booker provides no basis to permit a defendant who has pled guilty to withdraw his plea on the basis that it is involuntary, and we reject Sahlin's other Rule 11 arguments.We reject Sahlin's sentencing claims as well, including those based on Booker.

I.

Sahlin, an ex-police officer, stole a police car and used an M-16 machine gun, which had been converted into a semi-automatic weapon, to rob a bank in Manchester, New Hampshire on August 6, 2003.He was charged with armed bank robbery under 18 U.S.C. § 2113(d), and using a machine gun during a crime of violence under 18 U.S.C. § 924(c)(1)(B)(ii).The latter count — use of a machine gun — carried with it a statutory mandatory minimum thirty-year sentence, which would have to be imposed consecutively with the bank robbery sentence.

As part of his plea agreement entered on September 22, 2003, Sahlin pled guilty to a two-count superseding information which charged armed bank robbery and the reduced charge of use of a semi-automatic assault weapon during a crime of violence, under 18 U.S.C. § 924(c)(1)(B)(i).Use of a semi-automatic weapon carried a statutory mandatory minimum consecutive sentence of ten years, as opposed to the thirty-year mandatory minimum consecutive sentence for the machine-gun charge.The Guidelines range for the bank robbery count, given Sahlin's criminal history category of I, was thirty-three to forty-one months.

The plea agreement contained several joint stipulations: 1) The parties agreed that the weapon used in the armed robbery was a semi-automatic assault weapon; 2) the parties jointly agreed to request an upward departure under U.S.S.G. § 5K2.21,¹ based on the dismissal of the more serious machine gun charge; 3) the parties agreed that the requested departure would yield a combined sentence of twenty-five years; and 4) the parties also agreed that the government might, but was not bound to, exercise its discretion to file a motion for downward departure based on substantial assistance to the government under U.S.S.G. § 5K1.1, but that the government would not, in any event, recommend a sentence lower than 20 years.Sahlin could request a greater departure than that requested by the government.The government did file for a § 5K1.1 departure.

At Sahlin's February 17, 2004 sentencing hearing, the district court questioned the methodology agreed to by the parties in calculating the term of the sentence.The court correctly pointed out that, under United States v. Harotunian,920 F.2d 1040, 1042-44(1st Cir.1990), it could not depart both upward and downward, as the plea agreement contemplated.The district court solved the problem by taking into account both the reasons for upward departure (the dropping of the more serious machine gun charge pursuant to the plea agreement) and the reasons for downward departure (the defendant's substantial assistance) in deciding the degree to which it would depart upward.The court departed upward under § 5K2.21 on the armed robbery charge to a sentence of 120 months, and then imposed the mandatory minimum consecutive sentence of 120 months for the gun charge, for a total sentence of twenty years, a highly favorable outcome for Sahlin given the plea agreement.Sahlin did not object at sentencing to the district court's means of calculating the sentence or to its ultimate sentencing decision.

II.

Each of Sahlin's arguments challenging the plea and the sentence are made for the first time on appeal.

He first argues that his plea was wrongly accepted, because it was based on his understanding of sentencing procedures, which was rendered erroneous by Booker.He argues that he agreed to plead guilty in part based on his understanding of the risks he faced being sentenced by a judge under a mandatory guidelines system, but that Booker renders that understanding false, and thus undermines the validity of his plea.

Sahlin further argues that his guilty plea was entered in violation of Fed.R.Crim.P. 11 because the district court did not explain to him at his change of plea hearing that it could not both depart upward and downward, which is what the plea agreement contemplated, and that when at sentencingthe court explained this, it was obligated not to allow him to enter a plea of guilty.Finally, he argues that the district court erred by not disclosing to him at his change of plea hearing that the sentence for the gun count had to be imposed consecutively to the sentence for the bank robbery count.

Sahlin also attacks his sentence.Sahlin argues that the § 5K2.21 enhancement was plain error, as it was arrived at via judicial factfinding by a preponderance of the evidence, allegedly in violation of Booker.He next argues that the district court erred in departing upward under § 5K2.21 for dismissed or uncharged conduct, because that conduct was based on a factual finding (that the gun was a machine gun) directly contradicted by a mutual stipulation in the agreement (that the gun was a semi-automatic assault weapon) which was binding on the district court.

III.

A.Claims Attacking Sahlin's Guilty Plea

1.Booker Claim That Defendant's Plea Should Be Vacated

We reject Sahlin's claim that he should be permitted to withdraw his guilty plea because it was not voluntary, being based on an understanding of a sentencing scheme rendered erroneous by Booker.²In ordinary circumstances Booker provides no basis to vacate the entry of a pre-Booker guilty plea on grounds of lack of voluntariness.

Booker reaffirmed the Court's holding in Apprendi v. New Jersey,530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000), that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt," but did so only insofar as the sentence resulted from a mandatory system imposing binding requirements on sentencing judges.Booker,___ U.S. at ___, 125 S.Ct. at 756.Justice Stevens' opinion for the Court stressed that it was the mandatory nature of the Guidelines which raised constitutional concerns.Id. at 749-50.

The Court, as part of its remedy, struck two provisions from the Guidelines.It excised from the statute18 U.S.C. § 3553(b)(1), which had mandated judges to sentence within the guidelines range.Id. at 765.It also excised 18 U.S.C. § 3742(e), which gave the courts of appeals de novo review over certain aspects of sentencing.Id.The remainder of the Guidelines are intact and must be considered.

Sahlin argues that Booker renders his plea involuntary.Although a guilty plea waives all independent non-jurisdictional claims of error, seeTollett v. Henderson,411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235(1973), it does not preclude an attack on the plea's voluntariness Id.It is difficult to see how Sahlin's circumstances show that his plea was anything but voluntary.He was in fact sentenced under the mandatory scheme that he expected.And the possibility of a favorable change in the law occurring after a plea is one of the normal risks that accompany a guilty plea.SeeBrady v. United States,397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747(1970)("[A] voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.");United States v. Parsons,396 F.3d 1015(8th Cir.2005).³It does not mean that Sahlin was coerced or pressured into pleading guilty.This argument is frivolous.

2.Claimed Rule 11 Violations

Claimed irregularities in the plea-taking proceeding, provided they do not involve a total failure to address core concerns of Rule 11, will only result in a guilty plea being overturned if those irregularities affected the defendant's "substantial rights."Fed.R.Crim.P. 11(h);United States v. Cotal-Crespo,47 F.3d 1, 4-5(1st Cir.1995).

Sahlin argues that the district court erred in not explaining during his Rule 11 colloquy at the change of plea hearing that, under Harotunian, it could not depart both upward and downward as the plea agreement contemplated, and erred in not allowing him the opportunity to withdraw his guilty plea at sentencing after the Harotunian issue was explained.Sahlin has certainly forfeited the argument, and may have waived it as well by taking advantage of the court's procedure to obtain the sentence he wanted.SeeUnited States v. Vazquez-Molina,389 F.3d 54, 57(1st Cir.2004)(explaining difference between waiver and forfeiture in sentencing context).

At Sahlin's sentencing hearing, the court stated that, in light of Harotunian, rather than departing upward to twenty-five years and considering a downward departure for substantial...