United States v. Adame-Hernandez

• Decision Date: 18 August 2014
• Docket Number: No. 12–1268.,12–1268.
• Citation: 763 F.3d 818
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Juan Carlos ADAME–HERNANDEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

763 F.3d 818

UNITED STATES of America, Plaintiff–Appellee,

v.Juan Carlos ADAME–HERNANDEZ, Defendant–Appellant.

No. 12–1268.

United States Court of Appeals,Seventh Circuit.

Argued May 29, 2013.

Decided Aug. 18, 2014.

Bradley A. Blackington, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.

Joshua D. Uller, Attorney, Milwaukee, WI, for Defendant–Appellant.

Before WOOD, Chief Judge, and BAUER and TINDER, Circuit Judges.

TINDER, Circuit Judge.

This appeal arises from the same underlying criminal case that we address in another opinion issued today, United States v. Kenneth Jones, Ramone Mockabee, Devon Young, and Elisha Drake, Nos. 11–2267, 11–2288, 11–2535 & 11–2687. Defendant–Appellant Juan Carlos Adame–Hernandez (Adame) sold cocaine to Dominic Robinson and was thereby an upstream source for the cocaine distributed by the Mockabee organization discussed at length in that opinion. Adame's appeal had been consolidated with the others but because his appeal arises from substantially different circumstances that are unique to him, we have withdrawn the consolidation of his appeal to address it separately in this opinion. Adame's appeal focuses exclusively on a plea bargain gone awry, and we will therefore recite only the facts relevant to his plea.

BACKGROUND

In 2010, Adame was charged along with numerous other defendants with a criminal drug conspiracy as well as cocaine distribution and illegal reentry of a previously deported alien subsequent to a conviction for the commission of an aggravated felony. See 21 U.S.C. §§ 841(a)(1), 846; 8 U.S.C. § 1326(a). He was later charged with the same offenses in a superseding indictment.

On January 3, 2011, having entered into a binding, written plea agreement with the government under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Adame filed a petition to enter a plea of guilty to the conspiracy charged in Count One of the superseding indictment. As part of the agreement, the parties stipulated to a base offense level of 38, pursuant to U.S.S.G. § 2D1.1(c)(1). The government agreed not to file an information pursuant to 21 U.S.C. § 851, which would have increased Adame's mandatory minimum sentence because of a prior felony drug conviction. The resulting advisory guidelines range was 188–235 months, and the parties agreed “that a sentence of 204 months' imprisonment and a term of supervised release and fine as imposed by the Court is the appropriate disposition of the case.” The agreement reserved to the parties “the right to present evidence and arguments on all sentencing issues not specifically addressed in this Plea Agreement.” Counts Two and Three of the superseding indictment, charging cocaine distribution and illegal re-entry, respectively, were also to be dismissed as a part of the deal.

On that same date, the district court held a change of plea hearing. The court addressed Adame personally and discussed the nature of Count One, the possible sentencing range, and his understanding that, by pleading guilty, he was waiving certain constitutional rights. SeeFed.R.Crim.P. 11(b)(1). The court was careful to call Adame's attention to the plea agreement and the fact that it was binding as a rule “11(c)(1)(C) agreement. And that's a binding plea agreement between you and the Government as to a specific sentence.” Plea Hrg. Tr. 15, Jan. 3, 2011. The court explained, “[E]very part of it is binding. It's like a contract between you and the Government lawyers. It's binding on you, and it's binding on them.” Id. at 14. The agreement explains what would happen if the judge decided not to accept the plea:

The parties to this agreement acknowledge and understand that while the Court is not a party to this agreement, in the event the Court determines the sentence should not be as set forth herein and therefore rejects the plea agreement, the Court will so advise the defendant, who may then withdraw his plea of guilty, pursuant to Fed.R.Crim.P. 11(c)(4) [sic, the correct provision is Rule 11(c)(5) ].

The court also discussed whether the plea was voluntary. SeeFed.R.Crim.P. 11(b)(2). After the government established a factual basis for the plea through the testimony of Detective Ryan Clark, Adame confirmed that the facts proffered against him were true and pleaded guilty. The court accepted his plea and adjudged him guilty of the conspiracy charged in Count One of the superseding indictment. The court explained that its next task was to determine a sentence, and that the probation office had to prepare a presentence investigation report, which the court would use “along with [the] plea agreement that has the specific sentence bargained for, to decide what a reasonable sentence is....” Id. at 36.

As expected, the probation office prepared a presentence investigation report. The report recommended that Adame be found responsible for more than 150 kilograms of cocaine, resulting in a base offense level of 38. Adame raised two objections to the report: he denied that he personally delivered over 150 kilograms of cocaine, and he objected to a fact underlying an adjustment for his aggravated role in the offense.

About six months after the guilty plea, on July 7, 2011, Adame returned to the district court for sentencing. The record does not disclose that he had any prior notice that anything other than sentencing would occur at that hearing; there is no indication that he knew the government would claim he had breached the plea agreement. At the hearing, defense counsel asserted that while Adame would maintain that he personally delivered less than the amount of cocaine attributed to him in the presentence report, he understood that he could be held accountable for amounts based on his involvement in the conspiracy. The prosecutor argued that Adame had thereby objected to the base offense level stipulated to in the plea agreement and asserted that this constituted grounds to find a breach of the plea agreement. The prosecutor also asserted that the trial evidence would establish that Adame personally distributed over 150 kilograms of powder cocaine: a government witness would testify that he personally received more than that amount from Adame. The prosecutor questioned whether Adame had accepted responsibility for his conduct and asked the court to set aside the plea and set the case for trial. Notwithstanding this request, the prosecutor expressed uncertainty over whether the alleged breach was material, at one point stating, “Is that breach material? I don't know.” The defense counsel argued that Adame's position did not amount to a breach of the plea agreement and did not affect the sentence. Sent. Tr. 16, July 7, 2011. (“[R]egardless of whether we win these points or lose these points, it doesn't change the number of months that are recommended in the plea.”) Yet when questioned whether the plea agreement included a stipulation to the offense level that involved a drug quantity calculation, defense counsel responded in the affirmative.

The district court stated that if the defendant “[is] backing off the quantity, that seems to me to be inconsistent with your stipulation.” Id. at 18. The court added that it seemed that Adame was taking a position that was “inconsistent with the bargain that he struck with the government.” Id. Then the district court turned to whether the agreed-upon sentence was reasonable, and connected that issue with the government's claim of breach:

Unaddressed at this point is whether under 3553(a) this is a sentence that the Court could accept. I'm the third-party to this agreement, ... and I have my own difficulties with this agreement because, for one thing, Mr. Adame comes in here close to the end of the proceedings—and I know what everybody got because I meted out those sentences. For him to have been in the leadership role that he was in in this conspiracy and a supplier of such a huge amount of cocaine, given the other sentences, I don't know that 204 months is something that I can accept either.

So ... the appropriate and well advised position is to note the breach, and withdraw the Court's finding of guilty in accordance with this plea agreement, and set the matter for trial and return to the not guilty plea that was originally entered for the defendant.

Id. at 20. The court concluded that the agreed sentence was “not consistent with the other sentences that have been meted out given the relative culpability of the defendants,” a factor under 18 U.S.C. § 3553(a), and then reiterated that “besides the breach, the Court views the 204 month sentence [as] disparate [from the sentences of co-defendants]. So on my own findings sua sponte I'll reject the plea agreement.” Id. at 21. At the end of the hearing, Adame asked whether he could abandon his objections to the presentence report and proceed with sentencing under the plea agreement, but the court denied his request, saying, “[I]t's too late.” Id.

Immediately after vacating its acceptance of the guilty plea, the district judge reset Adame's case for trial in October 2011. However, on August 24th, the Grand Jury returned a second superseding indictment against Adame. This version of the indictment also contained three counts, with Counts Two and Three being identical to the prior iterations. Count One also described a cocaine distribution conspiracy, similar to at least a part of the conspiracy described in the two prior versions of that charge. However, the conspiracy count in the second superseding indictment focused on Adame's distribution of large quantities of powder cocaine down the chain of distribution, and it omitted much detail from the first version of Count One concerning Mockabee's subsequent redistribution of crack cocaine through the Indianapolis conspirators. Nonetheless, the government does not contend that the conspiracy charged in the second superseding indictment is different from the one previously alleged; and as...