U.S. v. Stubbs
| Decision Date | 05 February 2002 |
| Docket Number | No. 99-3726.,99-3726. |
| Citation | 279 F.3d 402 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael D. STUBBS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Joseph R. Wilson (argued and briefed), Asst. U.S. Attorney, Toledo, OH, for Plaintiff-Appellee.
Robert A. Ratliff (argued and briefed), Bratton & Ratliff, Cincinnati, OH, for Defendant-Appellant.
Before: BOGGS and CLAY, Circuit Judges; ROBERTS, District Judge.*
Defendant, Michael D. Stubbs, appeals from his judgment of conviction and sentence after pleading guilty to three counts of a thirteen-count indictment. One of the counts to which Defendant pleaded guilty charged that he had conspired to use or possess firearms during and in relation to the commission of a drug trafficking crime in violation of 21 U.S.C. § 846 and 18 U.S.C. § 924(o). For this count, Defendant was sentenced under 18 U.S.C. § 924(c) to a mandatory 60-month term of imprisonment to be served consecutive to all other sentences. On appeal, Defendant argues that the district court erred in sentencing him under 18 U.S.C. § 924(c) when he in fact was charged with and pleaded guilty to a violation 18 U.S.C. § 924(o), which carries a term of imprisonment of up to 20 years. For the reasons that follow, we VACATE Defendant's sentence and REMAND for resentencing.
On September 17, 1997, a Northern District of Ohio grand jury returned a thirteen-count indictment charging Defendant in three of the thirteen counts. Defendant was charged (1) in count one with conspiracy to distribute and possess with the intent to distribute cocaine, cocaine base and marijuana, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846; (2) in count twelve with aiding and abetting two co-defendants with traveling in interstate commerce with the intent to murder in violation of 18 U.S.C. §§ 2, 1958; and (3) in count thirteen with conspiracy to use and carry firearms during and in relation to the commission of a drug trafficking crime in violation of 21 U.S.C. § 846 and 18 U.S.C. § 924(o).
Defendant's trial counsel and the government negotiated a plea agreement during jury selection. Pursuant to that written plea agreement, Defendant pleaded guilty to all three counts of the indictment in which he was charged. The plea agreement provided that count thirteen, which charged Defendant with violating § 924(o), called for a mandatory consecutive term of 60 months' imprisonment. The plea agreement also provided that Defendant waived his right to directly appeal his sentence or seek post-conviction relief such as that offered under 28 U.S.C. § 2255. The agreement provided that Defendant only preserved the right to appeal "(a) any punishment imposed in excess of a statutory maximum, or the terms stated within this agreement; and (b) any punishment to the extent it constitutes an upward departure from the guidelines range deemed most applicable by the sentencing court; and (c) any other issue directly relating to the interpretation, application, or enforcement of this agreement." (J.A. at 52.)
On April 28, 1998, the district court held a plea hearing and accepted Defendant's guilty plea. The district court found that there was a factual basis for the plea agreement, that Defendant was competent to make the plea agreement, and that Defendant's guilty plea in accordance with the plea agreement was knowing and voluntary.
Defendant filed a pro se motion to withdraw his guilty plea on October 6, 1998. Defendant argued that he had received ineffective assistance of counsel, that the Pre-Sentence Investigation Report was not in accordance with the plea agreement, and that his plea agreement was not knowing and voluntary because he was coerced into the agreement without time or information to make a wise decision. The district court denied the motion to withdraw after a hearing on March 12, 1999.
Defendant appeared for sentencing on May 10, 1999 where the district court sentenced Defendant to 135 months of imprisonment for counts one and twelve to be served concurrently, and to 60 months of imprisonment for count thirteen to be served consecutive to the 135-month sentence. Defendant was also sentenced to 5 years of supervised release and ordered to pay a special assessment of $300.
This timely appeal followed.
Defendant now appeals his sentence for a violation of § 924(o) arguing that the district court erred in sentencing him to a mandatory 60-month consecutive sentence under § 924(c). Defendant argues that he could not be sentenced under § 924(c) when he was only charged with and he only pleaded guilty to a violation of § 924(o).
The government argues, however, that Defendant's sentence is proper under the sentencing guidelines. Specifically, the government argues that USSG § 2K2.1(c) applies to Defendant's offense. Section 2K2.1(c) provides in pertinent part:
(a) If the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply —
(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above ...
USSG § 2K2.1(c)(1)(A) (1998). Section 2X1.1 in turn provides that when sentencing for an offense involving attempt, solicitation or conspiracy, the court is to use the base offense level from the guideline for the substantive offense. USSG § 2X1.1 (1998). The government argues that the substantive offense in this case is a violation of § 924(c), which is covered by USSG § 2K2.4. Section 2K2.4 provides that the term of imprisonment for offenses under § 924(c) is that required by statute, which is a mandatory consecutive, minimum 60-month sentence. USSG § 2K2.4. The government therefore argues that under the cross-reference provisions in the guidelines, Defendant's sentence is proper.
Defendant counters that § 2K2.1(c) does not apply to his case. Instead, Defendant argues, § 2K2.1(a), (b) govern the calculation of his offense level and thus his sentencing range under the sentencing guidelines.
We agree with Defendant that he was improperly sentenced under § 924(c) when he was charged with and pleaded guilty to a violation of § 924(o). We reject the government's contention that Defendant's sentence is proper under USSG § 2K2.1(c); and we hold that Defendant's challenge to his sentence is not barred by his written waiver of his right to appeal inasmuch as Defendant's plea agreement, and thus the waiver, was not knowing and voluntary.
Because Defendant did not object to his sentence on the ground now alleged, our review is limited to plain error. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998). Under plain error review, this Court may only reverse if (1) there is error; (2) the error is plain; (3) the error affects the defendant's substantial rights; and (4) the fairness, integrity or public reputation of the judicial process is seriously affected. Id. We conclude that reversal is proper in the instant case because there was plain error that affected Defendant's substantial rights, which seriously affects the fairness, integrity or public reputation of the judicial process.
We begin with the rudimentary principle that, except in narrow circumstances not relevant here, an indictment is a necessary prerequisite to a conviction and sentence when a defendant is charged with a felony offense in federal court. Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). An indictment is sufficient if it charges an offense, contains the elements of that offense, and fairly informs the defendant of the charge against him. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); accord Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Furthermore, it is well-established that after an indictment has been returned, its charge may not be broadened except by amendment by the grand jury itself. Stirone, 361 U.S. at 217-18, 80 S.Ct. 270; see also United States v. Miller, 471 U.S. 130, 138, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985) (citing Stirone, 361 U.S. at 217-18, 80 S.Ct. 270).
We find the Supreme Court's decision in Jones instructive in resolving the case at bar. There, the Supreme Court held that elements of an offense must be charged in the indictment, submitted to a jury and proven beyond a reasonable doubt. 526 U.S. at 232, 119 S.Ct. 1215. In Jones, the defendant was indicted under 18 U.S.C. § 2119, but the indictment did not specify a particular subsection under § 2119. At trial, the defendant was convicted under jury instructions corresponding to subsection (1) which carried a maximum penalty of fifteen years. Id. at 230-31, 119 S.Ct. 1215. The presentence report, however, recommended that the defendant be sentenced to twenty-five years because one of the victims suffered serious bodily injury, referencing subsection (2) and testimony from the trial. Id. at 231, 119 S.Ct. 1215. The district court adopted the recommendation of the presentence report, finding that the serious bodily injury had been proven by a preponderance of the evidence. Id.
The government argued before the Supreme Court that the sentence should stand because the subsections of § 2119 were only sentencing factors and therefore did not have to be pleaded in the indictment, submitted to a jury, and proven beyond a reasonable doubt. The Court rejected this argument, finding that "the Government's view would raise serious constitutional questions." Jones, 526 U.S. at 251, 119 S.Ct. 1215. The Court concluded that because each subsection of § 2119 called for a different range of statutory penalties,...
To continue reading
Request your trial
-
U.S. v. Budd
...Circuit cases finding a constructive amendment based on the existence of two offenses are also distinguishable. In United States v. Stubbs, 279 F.3d 402 (6th Cir.2002), the defendant pled guilty to a violation of 18 U.S.C. § 924(o), which prohibits conspiracy to possess a firearm in connect......
-
Cvijetinovic v. Eberlin
...the federal cases on which Cvijetinovic relied—Hart v. Marion Correctional Inst., 927 F.2d 256 (6th Cir. 1991) and United States v. Stubbs, 279 F.3d 402, 412 (6th Cir.2002)—and reasonably concluded that, based on the totality of the circumstances, Cvijetinovic entered his plea voluntarily, ......
-
U.S. v. Darwich
...to his sentence before the district court on the same ground raised on appeal limits our review to plain error, United States v. Stubbs, 279 F.3d 402, 407 (6th Cir.2002), we conclude that de novo review is appropriate because Darwich objected to Rush's hearsay testimony in a supplement to h......
-
USA v. Forrester
...defendant may reject a plea that he otherwise would have taken, that was undoubtedly not the case here. Cf. United States v. Stubbs, 279 F.3d 402, 411 (6th Cir.2002) (“When the maximum possible sentence is overstated, the defendant might well be influenced to accept a plea agreement he woul......