United States v. Finnesy, No. 18-3045

• Decision Date: 20 March 2020
• Docket Number: No. 18-3045
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Brandon Thomas FINNESY, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

953 F.3d 675

UNITED STATES of America, Plaintiff - Appellee,

v.Brandon Thomas FINNESY, Defendant - Appellant.

No. 18-3045

United States Court of Appeals, Tenth Circuit.

FILED March 20, 2020

Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender with him on the briefs), Office of the Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.

Carrie N. Capwell, Assistant United States Attorney (Stephan R. McAllister, United States Attorney, and Jason Hart, Assistant United States Attorney on the brief), Office of the United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Before HOLMES, McKAY, and KELLY, Circuit Judges.

HOLMES, Circuit Judge.

Brandon Thomas Finnesy appeals from his conviction and sentence for escape from custody. As to his conviction, which was entered upon his guilty plea, Mr. Finnesy contends that he should be permitted to withdraw his guilty plea because the magistrate judge who conducted his plea colloquy lacked "jurisdiction" to accept his plea. As to his sentence, he maintains that the district court erred in applying the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") in his case. For the reasons explicated infra , we disagree. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s judgment.

I

In 2015, Mr. Finnesy was charged and convicted of misprision of a felony, in violation of 18 U.S.C. § 4.¹ He was subsequently sentenced to twenty-eight months’ imprisonment, with a scheduled release date of March 22, 2017. A few months prior to Mr. Finnesy’s scheduled release date, in late 2016, he was transferred to a halfway house to serve the remainder of his sentence. In January 2017, however, Mr. Finnesy left the halfway house and failed to return. Several weeks later and still at large, Mr. Finnesy was indicted by a federal grand jury on one count of escape from custody, in violation of 18 U.S.C. § 751.

A few days after Mr. Finnesy’s indictment, in early February 2017, Kansas law enforcement arrested Mr. Finnesy, along with two other suspects, following a car chase; law enforcement recovered methamphetamine and firearms in the vehicle and near the scene of the chase. In that connection, a Kansas state court convicted him of one count of possession of a controlled substance and one count of possession of a firearm by a convicted felon. He was sentenced to forty-eight months’ imprisonment in July 2017, and several weeks later was admitted to a state correctional facility to begin serving his sentence on these two state offenses.

In November 2017, while Mr. Finnesy was serving his state sentence, the federal government took steps in federal district court to pursue its prosecution of Mr. Finnesy for his escape-from-custody offense. But several weeks before his trial was slated to begin on that offense, Mr. Finnesy entered into a plea agreement with the government, whereby he agreed to plead guilty to escape from custody. The government, for its part, agreed to recommend the maximum applicable offense-level reduction for acceptance of responsibility, as well as "to join [Mr. Finnesy] in recommending his sentence be served concurrent to his [state] sentence"—but with several conditions. R., Vol. I, at 20 (Plea Agreement, dated Dec. 20, 2017). Specifically, the government’s fulfillment of its obligations under the plea agreement was contingent on, inter alia , Mr. Finnesy "continuing to manifest an acceptance of responsibility" and not "engag[ing] in additional criminal conduct" in advance of sentencing. Id. at 20–21. If Mr. Finnesy failed to adhere to these conditions, the government reserved the right to petition the court for a hearing to determine if he had breached the plea agreement. Id. If the district court were to then conclude that he had in fact done so, the government would be released from its obligations under the plea agreement.

In connection with his guilty plea, Mr. Finnesy also signed a document entitled "Consent to Proceed with Guilty Plea Before a United States Magistrate Judge in a Felony Case." Supp. R. at 1 (Consent to Proceed Form, filed Dec. 20, 2017). In so signing, Mr. Finnesy affirmatively represented that he had been informed of his right to "enter" a guilty plea before a U.S. district judge, and that he was waiving that right and consenting to "enter[ ]" a guilty plea before a U.S. magistrate judge. Id.

A magistrate judge presided at Mr. Finnesy’s plea hearing. During the hearing, the magistrate judge confirmed that Mr. Finnesy had agreed to have a magistrate judge "conduct[ ]" the hearing, and accepted the signed Consent to Proceed form. R., Vol. III, at 64–65 (Tr. Plea Hr’g, dated Dec. 20, 2017). At the end of the hearing, Mr. Finnesy pleaded guilty, and the magistrate judge "accept[ed]" the guilty plea. Id. at 83–84.

In the lead-up to sentencing on Mr. Finnesy’s escape-from-custody conviction, the parties submitted several filings laying out their recommendations on Mr. Finnesy’s sentence. These filings included Mr. Finnesy’s Motion for Downward Variance and Sentencing Memorandum. Therein, Mr. Finnesy addressed, in relevant part, the parties’ recommendation for a concurrent sentence, requesting that the district court "impose a sentence concurrent with his State case that he is presently serving." Id. , Vol. I, at 27–28 (Mot. for Downward Variance & Sentencing Mem., filed Feb. 21, 2018).

The day after Mr. Finnesy’s submission of his motion, the United States Probation Office filed a Presentence Investigation Report ("PSR") in connection with Mr. Finnesy’s sentencing on the escape-from-custody offense. As relevant here, the PSR calculated a base offense level of thirteen under U.S.S.G. § 2P1.1(a)(1),² and recommended a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a), resulting in a total offense level of eleven. And, as to the issue of whether Mr. Finnesy’s sentence should run consecutively to or concurrently with his state sentence, the PSR acknowledged the parties’ recommendation for a concurrently run sentence, but the PSR itself made no recommendation on this issue. Rather, insofar as the PSR did address Mr. Finnesy’s state sentence, it did so in the context of recounting Mr. Finnesy’s criminal history (including the underlying state offenses) and in assigning criminal-history points to the state offenses. Mr. Finnesy’s counsel ultimately did not lodge any objections to the PSR’s above-noted calculations or recommendations. See R., Vol. II, ¶ 139, at 39 (Modified PSR, filed Feb. 22, 2018); id. (in section of report entitled, "Objections," noting that "[c]ounsel, for the defendant, has no objections to the presentence investigation report").

Shortly thereafter, the government filed a Motion to Determine Breach of Plea Agreement (the "motion to determine"). In so moving, the government explained that it had been informed of Mr. Finnesy’s recent involvement in a "prisoner altercation" in which he had "possess[ed] a ‘shank’ and us[ed] it to harm another inmate at the detention facility where [Mr. Finnesy] [was] housed." R., Vol. I, at 30 (Mot. to Determine, filed Feb. 28, 2018). These actions, the government contended, constituted a breach of the plea agreement’s condition that Mr. Finnesy not "engage[ ] in additional criminal conduct," id. (quoting R., Vol. I, at 20–21), and that this breach, in turn, relieved the government of its obligation under the agreement "to join [Mr. Finnesy] in recommending concurrent sentencing with [the state sentence]," id. The government requested that the district court so find, and that it do so at Mr. Finnesy’s upcoming sentencing hearing.

To that end, the district court took up the government’s motion to determine several weeks later at Mr. Finnesy’s sentencing hearing. There, the government adduced evidence of the alleged prisoner altercation in which Mr. Finnesy had purportedly used a shank to attack another inmate, including testimony on the incident, a still shot from a video of the altercation, and the shank itself. The government argued that based on this evidence, it was clear that Mr. Finnesy had committed battery, in violation of the plea agreement’s condition that he not commit additional criminal violations pending sentencing. The government also presented testimony from a captain at the Butler County Sheriff’s Office, who averred that Mr. Finnesy had attempted to traffic contraband by surreptitiously giving prescription medication to another inmate; this conduct, too, the government argued, constituted a criminal violation, in breach of the plea agreement. Mr. Finnesy’s counsel rejoined that the video did not show a shank in Mr. Finnesy’s hand, and that, given the jail setting and "other surrounding circumstances," Mr. Finnesy’s actions during the incident in question did not qualify as battery. Id. , Vol. III, at 38–39 (Tr. Sentencing Hr’g, dated Mar. 6, 2018). Mr. Finnesy’s counsel also asserted that the only evidence of contraband trafficking was "essentially hearsay statements," in the form of other officers’ reports to which the captain then attested. Id. at 39. The district court agreed with the government, holding that Mr. Finnesy’s actions involving the shank constituted battery and that he had trafficked contraband. Then, "on the basis of this evidence that [the district court] heard," the court made the following ruling:

I am going to grant the [g]overnment’s motion that Mr. Finnesy has breached his plea agreement; therefore, [he] is not entitled to the acceptance of responsibility reduction of two points in this case, and that’s going to adjust his offense level to a level 13, criminal history category VI.

Id. at 40. Thus, having determined that Mr. Finnesy breached the plea agreement, the district court then granted the government’s request that it be released from its plea-agreement obligation to join Mr. Finnesy in recommending that the instant sentence run concurrently with the state se...