United States v. Andrews

• Decision Date: 23 May 2017
• Docket Number: No. 16-3130,16-3130
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dominick ANDREWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

857 F.3d 734

UNITED STATES of America, Plaintiff-Appellee,

v.Dominick ANDREWS, Defendant-Appellant.

No. 16-3130

United States Court of Appeals, Sixth Circuit.

Argued: March 9, 2017

Decided and Filed: May 23, 2017

ARGUED: Gregory Charles Sassé, Cleveland, Ohio, for Appellant. Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Gregory Charles Sassé, Cleveland, Ohio, for Appellant. Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

Before: DAUGHTREY, MOORE, and GIBBONS, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge.

OPINION

After being indicted on drug, robbery, and gun charges, Dominick Andrews sought to have his indictment dismissed on the grounds that the arresting federal agents had engaged in outrageous conduct. When the district court denied his motion to dismiss, Andrews entered into a plea agreement under which he would plead guilty to conspiracy to possess cocaine with intent to distribute and aiding and abetting the possession of a firearm in furtherance of a drug-trafficking crime. After his change-of-plea hearing but prior to sentencing, Andrews sought to withdraw his plea, arguing that he had an absolute right to do so because the court had not yet accepted his plea. The district court refused to allow withdrawal, finding that it had accepted the plea and that Andrews had not shown a "fair and just reason" for doing so. On appeal, Andrews argues that the district court erred in refusing to dismiss the indictment and erred in determining that it had accepted his guilty plea. Because the district court expressly declined to accept the plea, we reverse the denial of the motion to withdraw and remand for further proceedings consistent with this opinion.

I.

In February 2014, a federal grand jury in the Southern District of Ohio returned a seven-count indictment against Dominick Andrews and three co-conspirators. Andrews was charged with conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 (Count 1), conspiracy to interfere with commerce by robbery and threats of physical violence in violation of 18 U.S.C. § 1951 (Count 2), aiding and abetting the possession of firearms in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Counts 3 and 4), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Count 7).

Andrews filed a motion to dismiss the indictment on the grounds that outrageous government conduct violated his constitutional due process rights. He argued that he was recruited to participate in an "all-too-easy stash-house robbery" by undercover agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The ATF agents had posed as "disgruntled drug couriers" for a Mexican drug-trafficking organization, presented a comprehensive plan to steal twelve kilograms of cocaine, and offered to help the defendants prepare for the robbery. DE 43, Page ID 182–84. They arrested Andrews and his co-conspirators when they arrived at the pre-arranged meeting point for the robbery. Id. at 185. Andrews claimed that the agents engineered and directed the criminal activity from start to finish and that he had "no independent role in planning the crime." Id. at 186–87. He also argued that he was targeted only because a confidential informant (CI) identified him as someone who "would buy the fantasy ATF was selling." Id. at 188.

The district court denied the motion to dismiss. It credited an ATF agent's testimony that one of the defendants first approached the CI to find "drug dealers he could take down in a robbery" and that ATF had provided the defendants with multiple opportunities to withdraw. DE 64, Page ID 336–37. It applied the test for outrageous government conduct established in United States v. Barger , 931 F.2d 359 (6th Cir. 1991), finding that the first and second factors—the need for police conduct and who provided the impetus for the scheme—weighed against defendants when construing all of the evidence in a light most favorable to the prosecution. Considering the similar issue of entrapment, the court concluded that it was more properly raised as a defense at trial because "the undisputed evidence" did not "demonstrate a patently clear absence of predisposition," as is required to establish entrapment as a matter of law. DE 64, Page ID 340. The court made clear that it was not deciding the strength of an entrapment defense, only that the conduct was not so extreme as to require pre-trial dismissal.

Andrews subsequently entered into a written plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). In exchange for his agreement to plead guilty to Counts 1 and 3, the government agreed to dismiss Counts 2, 4, and 7. Andrews and the government agreed to a sentence of 180 months' imprisonment and that Andrews could withdraw his guilty plea if the district court refused to accept the agreement or impose the agreed-upon sentence.

When the district court reconvened for a change-of-plea hearing on April 22, 2015, Andrews indicated that he wished to change his plea from not guilty to guilty for Counts 1 and 3. The district court engaged Andrews in a colloquy to establish that he had read the plea agreement, that he understood it, that his attorney had explained the legal ramifications of pleading guilty, and that he was not under the influence of drugs or alcohol. The court also confirmed that Andrews understood both the specific implications of the charges against him and the rights he was giving up with his plea. The government reviewed the terms of the plea agreement and Andrews indicated that he was entering the agreement voluntarily, that he was satisfied with the work of his attorney, and that he agreed with the facts underlying the charges in the indictment. After Andrews pled guilty to Counts 1 and 3, the district court made the following statement:

Based upon my observations of Dominick in court today and the manner in which he has been answering questions I've been asking, it's obvious that he is in full possession of his faculties, he's not suffering from any apparent physical or mental illnesses, he's clearly not under the influence of any narcotics or alcohol, and he does understand the proceedings in which we are engaged, and he understands the nature and the meaning of the charges set forth in Count One and the consequences as negotiated in the document he's aware of, which culminated in the suggested sentence to the Court.

Therefore, I find that Dominick is fully competent and capable of entering an informed plea. The plea is a guilty plea, it's knowing, it's voluntary, and it's supported by an independent basis in fact which contains each of the essential elements of the offenses charged in Count One and Count Three, all of which occurred in the Southern District of Ohio.

Normally at this time I would go ahead and accept the plea and make a finding of guilty, but since it's a recommended sentence, we have to refer the matter to the Probation Department for a PSI. When that comes back, we'll come back in court and we'll go ahead from there. Okay?

DE 88, Page ID 406–07. The district court did not say anything further with respect to Andrews's plea. The minute entry from the April 22 hearing states: "Counsel present; Guilty Plea entered by Dominick Andrews (3) to Counts 1 and 3 of the Indictment; case to proceed with PSI." DE 66. The criminal minutes indicate that Andrews pled guilty to Counts 1 and 3 and that his plea was "preliminarily" accepted. DE 66, Page ID 349.

In November 2015, Andrews filed a motion to withdraw his guilty plea. He sought to do so as a matter of absolute right pursuant to Rule 11(d)(1), arguing that the district court did not accept his plea at the April 22 hearing. The district court denied Andrews's motion to withdraw. It recognized that Rule 11(d)(1) would allow Andrews to withdraw his guilty plea for any reason but held that it had accepted Andrews's guilty plea at the April 22 hearing and deferred only on accepting the terms of his plea agreement pending the preparation of a pre-sentence investigation report (PSR). Accordingly, the district court applied the higher standard under Rule 11(d)(2) and found that Andrews had failed to show a fair and just reason for requesting the withdrawal.

At his sentencing hearing, Andrews renewed his motion to withdraw. The district court reiterated that Andrews had made a competent, informed, voluntary, and valid plea of guilty and proceeded to sentence Andrews under the terms of the plea agreement—120 months on Count 1 and 60 months on Count 3, to be served consecutively. This was a departure from the Guidelines range of 200 to 235 months. The court dismissed the remaining charges against Andrews and entered judgment. Andrews filed a timely notice of appeal.

II.

A defendant has an "absolute right to withdraw an unaccepted guilty plea." United States v. Mendez-Santana , 645 F.3d 822, 827 (6th Cir. 2011) ; see Fed. R. Crim. P. 11(d)(1) (noting that a defendant may withdraw his guilty plea "for any reason or no reason" so long as he does so "before the court accepts the plea"). Between the time that a court accepts the plea and imposes a sentence, a defendant can withdraw only if "the court rejects a plea agreement under Rule 11(c)(5)" or "the defendant can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2). Andrews does not purport to have a fair and just reason for withdrawal. He argues only that he had an absolute right to withdraw because his plea was never accepted by the district court. Thus, the outcome here turns on whether Andrews's plea was accepted. This presents us with two questions. First, what must a district court do to indicate that it is accepting a defendant's guilty plea? Second, under what standard do we review a district court's determination as to whether it accepted a plea? We address each...