United States v. Brune

• Citation: 991 F.3d 652
• Decision Date: 22 March 2021
• Docket Number: No. 19-11360,19-11360
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Buck Gene BRUNE, Defendant—Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

991 F.3d 652

UNITED STATES of America, Plaintiff—Appellee,

v.Buck Gene BRUNE, Defendant—Appellant.

No. 19-11360

United States Court of Appeals, Fifth Circuit.

FILED March 22, 2021

Rebekah Ricketts, U.S. Attorney's Office Northern District of Texas, Dallas, TX , Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office Northern District of Texas, for Plaintiff-Appellee.

Cody L. Cofer, Cofer Luster Law Firm, P.C., Fort Worth, TX, for Defendant-Appellant.

Before Jones, Smith, and Elrod, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Buck Brune is a methamphetamine ("meth") dealer. In charging him, the government accidentally cited the wrong statutory subparagraph. After Brune had pleaded guilty, the court copied that error into its order accepting his plea but later corrected it. The court applied a sentencing enhancement on the ground that some of Brune's meth was imported. Brune contends that the court's correction of the erroneous citation amounted to double jeopardy and that the enhancement was erroneous. We find no error and affirm.

I.

Brune distributed at least 50–75 pounds of meth over nine months. For five months, he sold half a pound of meth to one coconspirator each day. His supplier was "a member of the Michoacán Cartel based in Dallas, Texas."¹ Brune concedes that that cartel "borrow[s] its name from a state in Mexico."

The government filed a one-count information based on the conspiracy provision of 21 U.S.C. § 846, charging Brune with conspiracy to violate " 21 U.S.C[.] §§ 841(a)(l) and (b)(l)(C), namely to possess with intent to distribute a mixture and substance containing more than 50 grams of methamphetamine." But the information cited the wrong part of § 841(b)(1) : Subparagraph B—not C—criminalizes possession of a substance containing more than 50 grams of meth. In contrast, subparagraph C provides "the baseline statutory penalty for any quantity of methamphetamine." United States v. Doggett , 230 F.3d 160, 166 (5th Cir. 2000) (emphasis added). Subparagraph B's penalty range is 5 to 40 years, § 841(b)(1)(B) ; subparagraph C's is 20 years or less, § 841(b)(1)(C). The parties agree that subparagraph C is a lesser-included offense of subparagraph B.

Despite that initial error and without any plea agreement, Brune pleaded guilty to subparagraph B,² referencing it nine times. For instance, Brune's factual resume cited subparagraph B, twice indicated that Brune was subject to its penalty range, and twice parroted its 50-gram threshold. Brune's waiver of indictment also cited subparagraph B. At arraignment, Brune admitted he understood its elements and penalty range. His lawyer admitted that "the intention of the parties was for Mr. Brune to enter a guilty plea to that offense, which was in the factual resume, and that would be a five to 40 count"—namely subparagraph B.

In recommending that the district court accept Brune's guilty plea, however, the magistrate judge copied the information's erroneous citation. The district court adopted that recommendation, accepted the plea, and adjudged Brune guilty. Thus, the presentence investigation report came back with subparagraph C's "maximum term of imprisonment," namely "20 years," even though it should have been 40 years under subparagraph B. The government raised two objections.

First, the government noted that Brune pleaded guilty to subparagraph B—not C. Brune countered, contending, inter alia , that modification of the court's order accepting his plea would violate the prohibition against double jeopardy. The district court rejected Brune's contentions and amended its order to reflect that it was accepting Brune's guilty plea to subparagraph B.

Second, the government requested a sentencing enhancement for an offense involving "importation of ... methamphetamine," which would raise Brune's offense level by two.³ Brune countered that there was insufficient evidence for that enhancement, because Brune's supplier was "based in Dallas." The court found there was sufficient evidence that Brune conspired to possess meth that "originated in ... Mexico."

II.

The government contends that jeopardy never attached.⁴ Our review is de novo . United States v. Dugue , 690 F.3d 636, 637–38 (5th Cir. 2012) (per curiam). We (A) determine that jeopardy does not always attach upon acceptance of a guilty plea, (B) explain the framework for analyzing attachment under Ohio v. Johnson , 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), and (C) apply that framework. There was no double-jeopardy violation.

A.

"No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST . amend. V. To violate that clause, the initial prosecution must have "put [the defendant] in jeopardy." Id. That inquiry becomes important where the initial prosecution gets derailed.

If a trial gets derailed, it still puts the defendant in jeopardy if jeopardy (1) attached and (2) terminated.⁵ Attachment refers to the "point in criminal proceedings at which [double-jeopardy] purposes and policies are implicated." Serfass v. United States , 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). For instance, in a jury trial, attachment occurs "when the jury is empaneled and sworn." Crist v. Bretz , 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Termination means that double jeopardy does not bar a second prosecution where "criminal proceedings against an accused have not run their full course." Justs. of Bos. Mun. Ct. v. Lydon , 466 U.S. 294, 308, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) (quotation marks and citation omitted). For instance, a mistrial for a deadlocked jury does not terminate jeopardy, see Richardson v. United States , 468 U.S. 317, 323–24, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), but an acquittal does, see Lydon , 466 U.S. at 308, 104 S.Ct. 1805.

Where a guilty plea gets derailed, the Supreme Court has neither identified a precise moment of attachment⁶ nor applied the concept of termination.⁷ That reticence left lower courts to fill in the gaps. Because acceptance of a guilty plea is arguably analogous to a jury verdict, courts initially intuited that jeopardy attaches upon acceptance of a guilty plea.⁸ For instance, in our first foray into the issue, in United States v. Sanchez , 609 F.2d 761, 762 (5th Cir. 1980), we agreed that "[j]eopardy attaches with the acceptance of a guilty plea." Relying solely on a now-abrogated, out-of-circuit case,⁹ we provided no reasoning for that conclusion.

It is no surprise, then, that four years later, the Supreme Court "effectively reject[ed] the double jeopardy concerns expressed ... in Sanchez ."¹⁰ In Johnson , 467 U.S. at 494, 104 S.Ct. 2536, the government charged the defendant with two sets of greater and lesser-included offenses. Johnson pleaded guilty—over the government's objection—of the two lesser-included offenses, then moved to dismiss the greater offenses on double-jeopardy grounds. Id. In rejecting that claim, the Court applied two concepts that relate to attachment and termination.

First, although attachment occurs where double-jeopardy "purposes and policies are implicated," Serfass , 420 U.S. at 388, 95 S.Ct. 1055, Johnson , 467 U.S. at 501, 104 S.Ct. 2536, concluded that no double-jeopardy interest "is implicated" in the "acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending." Thus, although Sanchez had suggested the opposite,¹¹ double jeopardy did not bar prosecution of a greater offense after a plea of a lesser-included offense.

Second, the Court applied a rationale reminiscent of termination's requirement that proceedings "run their full course" before a defendant can successfully invoke double jeopardy. Lydon , 466 U.S. at 308, 104 S.Ct. 1805 (quotation marks and citation omitted). Specifically, in Johnson , 467 U.S. at 502, 104 S.Ct. 2536, the Court sought to ensure that the government has "one full and fair opportunity to convict those who have violated its laws."

Thus, instead of expressly determining whether jeopardy attached and terminated, the Court analyzed (1) "finality" and (2) "prevention of prosecutorial overreaching," concluding that "[n]o interest ... protected by the Double Jeopardy Clause [was] implicated" in that situation. Id. at 501, 104 S.Ct. 2536. Although that framework differs from the attachment and termination book-ends that the Court employs when examining a trial, Johnson recognized differences between guilty pleas and trials.¹² Specifically, guilty pleas provide prosecutors no "opportunity to marshal [their] evidence and resources." Id. A defendant can plead guilty even over the government's objection. Id. at 494, 104 S.Ct. 2536. That distinction undermines the assumption of lower courts—which infected Sanchez —that guilty pleas are relevantly analogous to jury verdicts and that jeopardy, therefore, attaches upon acceptance of a guilty plea.

Nonetheless, our opinions have continued to recite Sanchez ’s rule that jeopardy attaches upon acceptance of a guilty plea.¹³ We must decide whether Johnson abrogated that statement. Brune contends that, under Sanchez , jeopardy attaches upon acceptance of a guilty plea. The government contends that Johnson rejected Sanchez ’s double-jeopardy concerns, so jeopardy does not always attach upon acceptance of a guilty plea. We agree because (1) Johnson abrogated Sanchez ’s statement about attachment, (2) Brune's counterarguments are not persuasive, and (3) the rule of orderliness does not preclude that conclusion.

1.

Johnson abrogated Sanchez ’s statement regarding attachment. The First¹⁴ and Third¹⁵ Circuits agree that, under Johnson , jeopardy does not always attach upon acceptance of a guilty plea. The Second Circuit implies that jeopardy attaches upon acceptance of a guilty plea¹⁶ and treats Johnson as an exception to that rule, which applies only where (1) the prosecutor objects to a plea of a lesser-included offense and (2) and the charge on the greater offense...