U.S. v. Smith
| Citation | 417 F.3d 483 |
| Decision Date | 18 July 2005 |
| Docket Number | No. 03-10171.,03-10171. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mark Elliott SMITH, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Appeal from the United States District Court for the Northern District of Texas.
Before HIGGINBOTHAM, SMITH and BENAVIDES, Circuit Judges.
I
Mark Elliott Smith was charged in a two-count indictment with mail fraud, in violation of 18 U.S.C. § 1341 (Count One), and interstate transportation of a stolen car, in violation of 18 U.S.C. § 2312 (Count Two). In November 1999, Smith met Deanna Miller in an internet chat room, convinced her that he loved her, and sent her three $10,000 checks drawn on an invalid account. Miller deposited one of the checks and, a week later, Smith, who had come to Iowa from Texas to visit her, took her shopping for a car. Miller made a $5,000 down payment on a $25,000 BMW and financed the remaining balance. Smith persuaded her to let him drive the new BMW back to Texas with the false representation that he would return. Miller later realized that the checks Smith had given her were worthless, and she reported the BMW stolen.
Earlier, in June 1999, Smith met Margie Jane Hill of Caldwell, Idaho, in an internet chat room and began a relationship with her that she believed was romantic. In October 1999, Smith sent a fraudulent $10,000 check to Hill via U.S. mail and Hill deposited it. Smith then told her that he had underestimated his bills and asked her to wire him $700 in cash. Although she was unable to do so until the $10,000 check cleared, Hill, believing the money to be in her account, spent more than $7,000 on food and clothing for herself and her children and grandchildren.
Smith pleaded guilty to Count One of the indictment, pursuant to a written plea agreement. After initially accepting it, the district court later rejected the agreement after the presentence report (PSR) was prepared. The PSR explained that Smith routinely met women on internet chatrooms with the intent to defraud them. Smith described himself as a "con man" and admitted that he has been "conning" women for over 11 years, averaging one woman every three months but occasionally juggling as many as five women at a time. The PSR detailed Smith's extensive criminal history, involving 20 years' worth of convictions and probation revocations arising out of persistent theft, forgery, and fraud.
After reviewing the PSR, the district court contacted counsel to inform them that it was inclined to reject the plea, stating:
This defendant is a one-man crime wave. Apparently he has absolutely no remorse for his criminal conduct . . . . I don't think anything is going to work with this defendant other than an extremely long [ ] term of imprisonment.
An upward departure in this case, if the statutory sentencing permissible [sic] would allow it to 10 or 15 years, would be entirely appropriate under the facts of this case. And, of course, that wouldn't be permitted if I were to accept the plea agreement and sentence on the basis of the offense of conviction, which has a five-year maximum.
The district court noted that a plea of guilty to Count Two, interstate transportation of a stolen vehicle, would entail a higher statutory maximum, and it expressed concern that the Government intended to dismiss that count. The Government responded that it did not oppose rejection of the plea and that it had only agreed to dismiss Count Two in an effort to "move the case."
The district court thereafter rejected the plea agreement, explaining that "[i]n my view, a sentence that could be imposed pursuant to your plea agreement would not meet the objectives of sentencing." Smith then withdrew his plea. He subsequently pleaded guilty to Count Two, pursuant to a written plea agreement. An amended PSR was prepared, which determined Smith's offense level to be 13 and his criminal history points to be 29 — putting him well into Criminal History Category (CHC) VI, the highest category — subjecting him to a guidelines range of 33 to 41 months' imprisonment.1 In addition to Smith's extensive criminal history, the PSR noted that Smith was under investigation in Texas for having passed $125,000 in worthless checks in March 2000. Charges were also pending against Smith in Dallas for theft of more than $20,000, arising out of his purchase of a 2000 Ford Expedition with a fraudulent $20,000 check in November 2001, as well as in Tarrant County for passing $2,346.06 in "hot checks" in April 2001. Smith received no criminal history points for any of these charges.
The PSR indicated that an upward departure would be warranted, pursuant to U.S.S.G. § 4A1.3, because Smith is a habitual criminal who has not been deterred by probation or brief prison terms and because his criminal history category did not adequately reflect the seriousness of his criminal past or the likelihood that he will commit future crimes. Because his 29 total criminal history points reflected large-scale fraud cases similar in nature to the instant offense, the PSR concluded that Smith's criminal record "is egregious and places him outside the `heartland' of cases normally seen by the Court."
Smith objected to the PSR, asserting that an upward departure was not warranted because his CHC of VI fully took into account his criminal past. He renewed his objection at sentencing and presented the testimony of both his ex-wife and his common-law wife to the effect that his problems arose out of his difficult childhood and that he was a good man who was needed and loved by his family. Smith further asserted that, despite his criminal past, an upward departure was not warranted because he had no history of violence or drug use.
In February 2003, the district court overruled Smith's objection, determining that his criminal history score did not adequately reflect the seriousness of his past conduct or the likelihood that he would commit other crimes. The district court stated that it had considered the different sentencing levels that could be imposed and concluded that a sentence at the top-most level was appropriate and would achieve the sentencing objectives of punishment, deterrence, and incapacitation of the offender for the protection of the public. It therefore sentenced Smith to the statutory maximum of 120 months, followed by a three-year supervised-release term, and ordered him to pay $35,200 in restitution. The district court imposed Smith's sentence to run consecutively to any state or federal sentence he might receive. Smith timely appealed.
II
We first address whether the district court erred in rejecting the initial plea agreement to Count One of the indictment. We conclude that it did not.
A district court's rejection of a plea agreement is reviewed for an abuse of discretion.2 A district court "abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence."3
Rule 11 of the Federal Rules of Criminal Procedure provides that the district court may accept or reject a plea agreement.4 Rule 11 does not limit a district court's discretion in rejecting a plea agreement.5 A district court may properly reject a plea agreement based on the court's belief that the defendant would receive too light of a sentence.6 Under the guidelines, a court is counseled to reject the plea agreement if it determines that accepting the plea agreement will undermine the statutory purposes of sentencing or the sentencing guidelines.7 Moreover, a court is well-advised to reject a plea agreement that dismisses a charge if it finds that the remaining charges do not adequately reflect the seriousness of a defendant's actual offense behavior.8
The district court did not abuse its discretion in rejecting the initial plea agreement after reviewing the PSR. The PSR indicated that Smith had an extensive history of theft, fraud, and forgery convictions, with outstanding and/or uncharged criminal conduct involving eight more women and $147,000. The district court did not abuse its discretion in concluding that the plea agreement did not adequately reflect the seriousness of the offense, was unduly lenient, and would not meet the objectives of sentencing given Smith's extensive criminal history, persistent criminal conduct, and large number of victims.9
Smith's argument that the district court improperly engaged in plea negotiations is equally unavailing. Because Smith raised this argument for the first time on appeal, we review it only for plain error.10 In order to establish plain error, Smith must show: (1) error, (2) that is clear or obvious, and (3) that affects substantial rights.11 "`If all three conditions are met an appellate court may then exercise its discretion to notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.'"12
A district court is absolutely prohibited from participating in plea negotiations.13 In United States v. Miles, we held that "Rule 11 requires that a district court explore a plea agreement once disclosed in open court; however, it does not license discussion of a hypothetical agreement that it may prefer."14 Similarly, in United States v. Crowell, we explained that
although the district court may state its reasons for rejecting a plea agreement, it may not also suggest the plea agreements that would be acceptable. When a court goes beyond providing reasons for rejecting the agreement presented and comments on the hypothetical agreements it would or would not accept, it crosses over the line established by Rule 11 and becomes involved in the negotiations.15
The fact that the parties rely on the district court's comments in fashioning a subsequent plea agreement is...
To continue reading
Request your trial
-
United States v. Farrar
...omitted). And, the court's decision to accept a nolo contendere plea is reviewed for abuse of discretion. United States v. Smith , 417 F.3d 483, 486 (5th Cir. 2005) ; see also United States v. Bearden , 274 F.3d 1031, 1035 (6th Cir. 2001). In addition, the Government urges we instead review......
-
U.S. v. Simkanin
...court's decision to depart upwardly from the sentencing range established by the Guidelines. See United States v. Smith, 417 F.3d 483, 2005 WL 1663784, *4-6 (5th Cir. July 18, 2005). There, we explained that the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 73......
-
U.S. v. Bp Products North America Inc.
...reject a plea agreement based on the court's belief that the defendant would receive too light of a sentence." United States v. Smith, 417 F.3d 483, 487 (5th Cir.2005), cert. denied, 546 U.S. 1025, 126 S.Ct. 713, 163 L.Ed.2d 543 (2005) (citing United States v. Crowell, 60 F.3d 199, 205-06 (......
-
U.S. v. Saldana
...(2005). 31. United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005). 32. See id. at 520 n. 9. 33. 125 S.Ct. at 765. 34. 417 F.3d 483, 489-90 and n.24 (5th Cir.2005). 35. United States v. Simkanin, 420 F.3d 397, 415 (5th Cir.2005)(noting that "the appropriate standard of review to employ wh......
-
Understanding uncontested prosecutor elections
...1415 (2003) (noting that the guilty pleas may be the result of “prosecutorial domination”). 70. 71. See, e.g. , United States v. Smith, 417 F.3d 483, 487 (5th Cir. 2005); United States v. Gamboa, 166 F.3d 1327, 1330 (11th Cir. 1999); United States v. Carrigan, 778 F.2d 1454, 1462 (10th Cir.......