United States v. Doe
| Decision Date | 23 September 2022 |
| Docket Number | 17-2134 |
| Citation | 49 F.4th 589 |
| Parties | UNITED STATES of America, Appellee, v. John DOE, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Allison Koury for appellant.
Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
Before Lynch, Lipez, and Howard, Circuit Judges.
On May 17, 2016, defendant-appellant John Doe pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Shortly before sentencing, Doe moved to withdraw his guilty plea, arguing that his counsel was constitutionally ineffective and therefore, that his plea was unknowing and involuntary. The district court denied the motion, and Doe appeals that denial. He has also argued for the first time on appeal there was a "fatal omission" in his plea colloquy, and that the indictment in this case should be dismissed because it did not allege that he knew that he was not permitted to possess a firearm, as required by the Supreme Court's recent decision in Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019).
On October 18, 2017, Doe was sentenced to fifteen years of incarceration, followed by three years of supervised release. The district court made clear during sentencing that it adopted the Sentencing Guideline calculation recommended by the probation office in the Presentence Investigative Report ("PSR"). The PSR in turn identified three predicate convictions -- two for possession with intent to distribute cocaine and one for assault with a dangerous weapon. Because Doe had at least three predicate offenses, the district court found, he was subject to a mandatory minimum incarcerative sentence of fifteen years under the Armed Career Criminal Act ("ACCA"). The district court also denied Doe's request to stay sentencing and hold an evidentiary hearing in light of his allegation that the government breached its obligations under a cooperation agreement by failing to file substantial assistance motions under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). Doe additionally appeals his classification as an armed career criminal and the district court's failure to conduct an evidentiary hearing before proceeding with sentencing.
For the reasons discussed below, we affirm both Doe's conviction and sentence.
We begin with Doe's challenges to his plea and conviction. Doe argues, as he did in the district court, that his decision to plead guilty was not knowing or voluntary because it was predicated on his belief that trial counsel had filed a motion in federal court to suppress the firearms at issue. He further asserts that the plea was not knowing or voluntary because trial counsel was constitutionally ineffective in failing to file a motion in state court to vacate at least one of his qualifying predicate convictions. He also argues for the first time on appeal that the district court's failure to inform him specifically that he faced a mandatory minimum sentence violated Rule 11's core concerns and rendered his plea invalid. Finally, Doe contends that, in the wake of the Supreme Court's decision in Rehaif, ––– U.S. ––––, 139 S. Ct. 2191, the indictment in this case failed to allege an essential element of the offense charged and therefore must be dismissed.
Only Doe's ineffective assistance claim was raised in the district court in the motion to withdraw the guilty plea. Consequently, this is the only basis that we may review for an abuse of discretion, rather than for plain error. See United States v. Isom, 580 F.3d 43, 52 (1st Cir. 2009) (); see also United States v. Castro-Gómes, 233 F.3d 684, 686–87 (1st Cir. 2000) (same).
Doe's preserved ineffective assistance claim, however, cannot be resolved in this direct appeal. We have consistently held that "fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court" in the post-conviction context. United States v. Negrón-Narváez, 403 F.3d 33, 40 (1st Cir. 2005) (quoting United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) ); see also United States v. Rosario-Cólon, 431 F. App'x 4, 5 (1st Cir. 2011) (). We may make an exception, however, "for cases in which trial counsel's ineffectiveness is manifestly apparent from the record." United States v. Wyatt, 561 F.3d 49, 52 (1st Cir. 2009).
Though it was raised below, Doe's claim cannot be decided purely on the record before us. To be sure, Doe filed several affidavits in the district court stating that he believed his original counsel had sought to suppress the firearms at issue and that this belief affected his decision to plead guilty. His successor counsel represented that the motion to suppress would have been meritorious. Beyond this, however, there is nothing in the record that sheds light on the actual substance of these hypothetical motions that should have been filed; nor is there any meaningful way for us to evaluate the claim that prior counsel was constitutionally ineffective because he failed to seek suppression. Doe's claim of ineffective assistance therefore is not "manifestly apparent from the record" and must be reserved for future collateral proceedings. Id.
Our review on direct appeal is limited to Doe's challenge to the sufficiency of his plea colloquy under Rule 11 and to the indictment under Rehaif, ––– U.S. ––––, 139 S. Ct. 2191. Because neither claim was presented to the district court, we review each claim only for plain error. See United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (); United States v. Dawn, 842 F.3d 3, 5 (1st Cir. 2016) (same).
On appeal, Doe focuses his challenge to his conviction on his contention that his plea colloquy was facially invalid because of a "fatal omission" that rendered his guilty plea unknowing and involuntary.
Doe is correct that Rule 11 of the Federal Rules of Criminal Procedure requires the district court to "address the defendant personally in open court" and "inform the defendant of, and determine that the defendant understands ... any mandatory minimum penalty" he may face. Fed. R. Crim. P. 11(b)(1)(I). This requirement, like the others codified in Rule 11(b)(1), is intended to ensure that "(1) the plea is voluntary; (2) that the defendant understands the charge to which he has pled guilty; and (3) that the defendant knows the consequences of his guilty plea." Castro-Gómez, 233 F.3d at 687 () ( Rule 11 was subsequently amended in 2002 to explicitly include the list of requirements in the text of subsection (b)). Even in cases where a mandatory minimum sentence "is not finally determined until after the plea process is complete," the district court is obligated under Rule 11 to inform the defendant of at least the possibility of a mandatory minimum sentence. United States v. Santo, 225 F.3d 92, 98 (1st Cir. 2000). And, the court's failure to do so renders the plea colloquy "imperfect." Castro-Gomez, 233 F.3d at 687 (citing Santo, 225 F.3d at 98 ).
The record reveals that the district court satisfied this requirement. During the plea colloquy, the district court inquired of Doe whether he had read the plea agreement and had discussed it with his counsel. The court went on to say that "if you look at Section 2 [], it summarizes the penalties you become exposed to on conviction of this offense that you're pleading guilty to, and it includes the possibility of a minimum mandatory sentence of 15 years." Doe responded in open court that he understood this. Whether the district court could have been more persistent in its inquiry of Doe with respect to his understanding of the penalties he faced, we cannot say that the plea colloquy in this case was deficient, especially in the absence of any objection by counsel, either contemporaneously or in Doe's later motion to withdraw his plea.
Even if the plea colloquy was facially "imperfect," however, Doe must still show that, had the district court informed him that he faced a possible mandatory minimum sentence of fifteen years, he would not have pled guilty. See Dominguez Benitez, 542 U.S. at 76, 124 S.Ct. 2333. He cannot make such a showing here, especially because the plea agreement specifically states that Doe faced a mandatory minimum sentence of fifteen years and that the government would recommend an incarcerative sentence of fifteen years.
During the plea colloquy, Doe confirmed in open court that he had read the plea agreement multiple times and had discussed the agreement and its implications with counsel before agreeing to plead guilty. Moreover, Doe was advised by the PSR that he faced a mandatory minimum sentence of fifteen years of incarceration because he had been classified as an armed career criminal. And, Doe had the opportunity to (and in fact did) object to this classification prior to sentencing.
Read in conjunction, the plea agreement, the transcript of the plea colloquy, and the PSR make clear that Doe was fully aware of the...
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