U.S. v. Sura, 05-1478.

• Citation: 511 F.3d 654
• Decision Date: 12 December 2007
• Docket Number: No. 05-1478.,05-1478.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James SURA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

511 F.3d 654

UNITED STATES of America, Plaintiff-Appellee, v. James SURA, Defendant-Appellant.

No. 05-1478.

United States Court of Appeals, Seventh Circuit.

Argued November 7, 2006.

Decided December 12, 2007^*.

Opinion Published January 2, 2008.

[511 F.3d 655]

Stephen A. Ingraham (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Douglas J. Beevers (argued), Office of the Federal Public Defender, Springfield, IL, Richard H. Parsons, Kent V. Anderson, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.

WOOD, Circuit Judge.

James Sura owned a World War II Beretta, which he kept in his home. As far as this record reveals, Sura never attempted to use the gun, nor did he own ammunition for it. Sura was, however, a convicted felon, and so when the Beretta was found in his home in 2003, he wound up in hot water, charged with being a felon unlawfully in possession of a firearm. See 18 U.S.C. § 922(g)(1). In early 2004, Sura agreed to plead guilty; his plea included a clause waiving his right to appeal his conviction and sentence. The district court accepted the plea and gave him a 30-month sentence. Sura now wants to challenge that sentence, but in order to do so, he first must convince us that his appeal waiver should be set aside. If he can do so, he would like to challenge the district court's application of the advisory Sentencing Guidelines, which call in § 2K2.1(b)(2) for a reduced sentence for a felon who possesses a firearm used solely for sporting or collection purposes.

Sura's primary argument proceeds on the assumption that we can perform surgery on his plea agreement, excising only paragraph 30, which contains the waiver of his right to appeal. But we have often held that this is not an option. See, e.g., United States v. Lockwood, 416 F.3d 604, 607 (7th Cir.2005); United States v. Cieslowski, 410 F.3d 353, 363-64 (7th Cir. 2005); United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.2002). Sura asks in the alternative, however, to be relieved of the plea altogether, on the ground that he entered into it involuntarily. Approaching the appeal on the latter basis, as we must, we conclude that Sura has shown that he did not knowingly and voluntarily accept the plea (including its waiver of his appellate rights) and thus that the district court plainly erred when it accepted the plea. We therefore vacate the plea and remand this case to the district court for further proceedings.

I

Until Sura turned 49, in 1982, he apparently had no run-ins with the law. Unfortunately, he seems to have undergone a Hyde-like change that year, when he began accumulating a string of convictions for sex offenses, including sexual assault, child enticement, and disorderly conduct. As of 2002, Sura was on probation. In July 2002, Sura's probation officer searched his home and found a rifle, three shotguns, a Beretta pistol, and ammunition. The guns were turned over to Sura's son, and Sura's probation officer warned him that he could not possess guns.

Disregarding this advice, Sura later retrieved the Beretta pistol, which was a souvenir that a friend had brought home after World War II and given to Sura in the 1950s. In 2003, police discovered the Beretta once again in Sura's possession. According to the government, the police searched Sura's home with his consent, locating the Beretta in the basement. (Sura claims that he delivered the gun to the police. This factual dispute has no bearing on our analysis here.)

In October 2003, Sura (by then almost 70 years old) was indicted for being a felon in possession of a firearm; he was charged only with possession of the Beretta. After negotiations with the government, he signed a plea agreement, under which he agreed to plead guilty but reserved the right to challenge the calculation of his sentence. As we noted earlier, the plea agreement included a waiver of all his appellate rights.

Whether the court properly accepted Sura's guilty plea lies at the heart of this appeal, and so we describe the court's inquiries under FED.R.CRIM.P. 11 in some detail. Initially, the court asked Sura if he was on any medication; Sura replied that he was. Following up, the court asked "would any of that medication affect your understanding of what's happening here today?" Sura replied ambiguously, "I don't think so, sir. But I can't say for sure." Sura also told the court that he was undergoing psychological treatment. The court noted that Sura was represented by counsel, but the court did not ask Sura if his counsel had either reviewed the plea agreement or discussed his case with him. Instead, the court asked Sura only, "Are you satisfied with the representation that you have received from [your attorney]?" and "Are there any questions that you may have of [your attorney] at this point?" The court also asked Sura, "knowing the rights that you're giving up, and the penalties involved, is it still your wish and still your desire to enter a plea of guilty to this count," to which Sura replied, "Yes, sir." The court reiterated, "And are you doing that because that's what you want to do?" Sura replied, "That's a difficult question to answer, Your Honor. But I have to say yes. I do have a conviction of a felony on my record, I was in possession of the Beretta, so I have to plead guilty."

The court specifically asked Sura if he understood "that by signing the Plea Agreement that you're giving up the rights that are contained in the Plea Agreement," to which Sura replied, "Yes, sir." The court then listed some of those rights, including the right to a trial, the right to a jury, the standard of evidence at a trial, and the right to testify or remain silent at trial. It said nothing, however, about the waiver of appellate rights, thereby omitting a point specifically required by Rule 11(b)(1)(N). The court also asked whether "anyone has made any threats or promises to get you to do this . . . aside from what's contained in this Plea Agreement," and Sura replied, "No, sir."

At his sentencing hearing, Sura argued for the application of U.S.S.G. § 2K2.1(b)(2), which reduces the Guidelines offense level to a level 6 if a defendant is convicted of unlawful possession of a firearm but "possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition." Sura admitted that he knowingly broke the law by possessing the Beretta. He told the court, "I wish I could come before you and say this is all a mistake . . . [but] I did have the Beretta in my possession." But he explained,

Why did I have it? Something I've treasured for over 50 years. Something that some soldier actually carried into combat with him in World War II. I never looked at it as being a gun per se. Never owned any ammunition for it. I would have been afraid to fire it. I didn't even know it worked until I was told that your people [police ballistics] had fired it.

The district court declined to apply the reduction to Sura's sentence. The court justified its refusal by noting that Sura had previously had his probation revoked "because of possession of firearms and ammunitions . . . [specifically] a sword, a hunting knife, bow and arrow set, [and] a hatchet." The court concluded that Sura's possession of the Beretta "follow[ed] a pattern of notice and repetition that makes it so—at least elevates it from the harmless characterization made by the defense." The court further justified its decision by noting Sura's practice of groping women, concluding that "all periods of [Sura's supervised release or probation] have never been completed without . . . a subsequent violation." Using an offense level of 13 and a criminal history category of VI, the court calculated an advisory sentencing range of 33 to 41 months' imprisonment. Based primarily on the fact that Sura was 71 years old at the time of sentencing, the court, noting that the ultimate standard is reasonableness, imposed a below-Guidelines sentence of 30 months. (Had the court accepted Sura's argument for the use of § 2K2.1(b)(2), the offense level would have been 5 (base level 6 plus 2 for number of firearms, minus 3 for acceptance of responsibility); for someone like Sura in Criminal History Category VI, the recommended range would have been 9 to 15 months.) After the sentencing, Sura's trial lawyer properly filed Sura's notice of appeal; later, new counsel was appointed to represent Sura on appeal.

II

A

Because this appeal turns on the question whether Sura is entitled to have his guilty plea set aside, we begin by looking at FED.R.CRIM.P. 11, a "guilty-plea safeguard[]." United States v. Ruiz, 536 U.S. 622, 631, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Rule 11 generally spells out the procedures that a district court must follow when a defendant wishes to plead guilty. It exists "to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary . . . [and] to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination." McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). "Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous . . . attacks on the constitutional validity of guilty pleas." Id.

On December 1, 1999, a new subsection was added to what was then Rule 11(c), "specifically to reflect the increasing practice of including provisions in plea agreements which require the defendant to waive certain appellate rights." Committee Note to the 1999 Amendments. As part of the Rules' overhaul in 2002, the amendment was relocated to Rule 11(b)(1)(N) as a "stylistic only" change....