United States v. Hoff, Case No. 18-3476
| Decision Date | 28 March 2019 |
| Docket Number | Case No. 18-3476 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. E. STANLEY HOFF, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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The First Amendment protects freedom of speech, among other guarantees, not threats of physical harm. One aspect of this case calls for interpreting the distinction between the two.
E. Stanley Hoff pled guilty to one count of threatening to assault or murder a United States official, in violation of 18 U.S.C. § 115, for leaving a threatening voicemail at the office of a member of Congress. Hoff argues that (1) the district court erred by allegedly failing to rule on his motion to withdraw his guilty plea, (2) he received ineffective assistance of counsel because his counsel failed to obtain a ruling on the motion to withdraw Hoff's guilty plea, and (3) the district court imposed a procedurally and substantively unreasonable sentence. For the reasons that follow, we AFFIRM.
In February and March of 2017, Hoff left three voice messages at the Hillard, Ohio office of United States Representative Steve Stivers that gave the Congressman concern for the safety of himself and his family. Congressman Stivers contacted the Capitol Police to investigate these calls. During the Capitol Police investigation, an investigating agent (Agent Andriko) warned Hoff not to contact Congressman Stivers's office again. Nevertheless, Hoff left two additional voice messages on April 30, 2017, and June 18, 2017.
The latter message was left just four days after a shooting at a baseball practice in Washington D.C. where Republican congressmen and their staffs were fired upon. In that message, Hoff referenced the baseball practice shooting: R. 47-1, PageID 274-75. Hoff continued: Id. at 275.
After the Capitol Police determined the caller's identity—Hoff had blocked his number—the Capitol Police obtained a warrant for his arrest. Following Hoff's arrest, a grand jury in the Southern District of Ohio indicted him on one count of threatening to assault and murder a United States official and threatening to assault and murder a member of the immediate family of a United States official, in violation of 18 U.S.C. § 115(a)(1)(A), (a)(1)(B), and (b)(4).
After a mental-health evaluation and a denied motion for bond, Hoff entered into a plea agreement on October 24, 2017. Pursuant to that agreement, Hoff pled guilty to leaving "a voice mail at the Hilliard, Ohio, office of United States Representative Steve Stivers (OH-15)," inviolation of 18 U.S.C. § 115. R. 27, PageID 79. Hoff also acknowledged that he had made his calls to Congressman Stivers "because of Representative Stivers['s] official duties." Id. The district court accepted Hoff's guilty plea on October 24, 2017.
On January 11, 2018, approximately three months after the district court accepted Hoff's guilty plea, Hoff moved to withdraw his counsel. The motion stated that Hoff no longer wanted to work with his present counsel and was "adamant that he wants to withdraw his guilty plea and communicated his decision to do so on or about December 12, 2017." R. 35, PageID 136. In response to the motion, the district court held a status conference on January 30, 2018.
During the status conference, the district judge questioned defense counsel about Hoff's motion to withdraw. Hoff's counsel explained that "Mr. Hoff has indicated that he is resolute in his decision to move to withdraw his plea." R. 54, PageID 297. The district judge responded, "I'm resolute in my decision to deny that[,]" but was "willing to hear what [Hoff has] to say" on the matter. Id. In the colloquy that followed, Hoff explained to the district judge that had suffered from an onset of depression and was suicidal at the time and of the guilty plea and now wished to withdraw it. Based on Hoff's explanations, the district judge decided to "re-refer" Hoff to a psychiatrist "for an updated evaluation to determine whether or not the situation has changed with [Hoff's] mental health post-plea so that [the court] can either grant [his] motion or deny the motion with the most up-to-date information that we have." Id. at 305. After reaching this conclusion, the district court granted Hoff's motion to withdraw his counsel and in turn, appointed new counsel for him. The district judge also told Hoff the following: Id. at 307.
Having secured new counsel, Hoff moved to extend the time to object to the initial presentence report. The motion made no mention of withdrawal of his guilty plea, nor did Hoff formally file a motion to withdraw his guilty plea before his sentencing. The district court granted Hoff's motion for extension of time, and on May 11, 2018, the district court sentenced Hoff to 40 months' imprisonment followed by three years of supervised release.
This timely appeal followed.1
We first address Hoff's assertion that the district court erred in failing to rule on his motion to withdraw his guilty plea. Relying on Federal Rule of Appellate Procedure 27, Hoff asserts that the district court either did not rule upon or implicitly denied his oral motion to withdraw his guilty plea, which was raised during the January 30, 2018, status conference. Hoff contends that the district court's "implicit denial" is reversible error because he successfully demonstrated that he had "two very strong, fair and just reasons in the instant matter" to satisfy the withdrawal standard under Federal Rule of Criminal Procedure 11(d)(2)(B).
The district court's denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Hockenberry, 730 F.3d 645, 661-62 (6th Cir. 2013); accord United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008). Of course, this standard of review presupposes that the defendant has not waived or forfeited2 his rights to challenge the districtcourt's denial of his motion to withdraw a guilty plea. See United States v. Denkins, 367 F.3d 537, 543 (6th Cir. 2004). A defendant waives a particular challenge when he abandons it in the proceedings below. See id. at 544. When the defendant abandons (i.e., waives) his challenge, "that challenge is forever foreclosed, and cannot be resurrected on . . . appeal." United States v. Saucedo, 226 F.3d 782, 787 (6th Cir. 2000).
This case presents circumstances similar to those in Denkins and United States v. Smith, 608 F. App'x 395 (6th Cir. 2015) (per curiam), where this court held that each defendant abandoned his motion to withdraw his guilty plea. In Denkins, the defendant simultaneously moved for withdrawal of his guilty plea and for a competency evaluation, "with the former motion resting solely on the ground that Defendant lacked the mental competency to understand the nature of the proceedings or to knowingly, voluntarily, and intelligently enter a plea." 367 F.3d at 543. After the evaluation concluded that the defendant was competent, the defendant withdrew his objection to the presentence report and as a result, "the district court was never called upon to decide whether to permit Defendant to withdraw his plea on the ground of incompetency." Id. at 544. In those circumstances, this court concluded that the challenge was abandoned on appeal, as the district court had given the defendant an opportunity to explore the basis for his plea withdrawal and "surely would have been willing to revisit the issue." Id.
Likewise in Smith, this court concluded that the defendant abandoned his motion to withdraw his guilty plea. 608 F. App'x at 396. The defendant in Smith simultaneously moved to withdraw counsel and withdraw his guilty plea. Id. The district court granted the defendant's motion to withdraw counsel but denied the defendant's motion to withdraw his plea without prejudice. Id. Quoting the district court, this court noted that the district court denied the motionto withdraw the plea without prejudice because "[t]his will allow Defendant to consult with new counsel on the risks and benefits of proceedings with such a motion." Id. (internal quotation marks omitted). This court then concluded that the defendant's "failure to renew his motion and the factual concessions in his supplemental sentencing memorandum constituted an effective abandonment of his motion to withdraw his guilty plea." Id.
Smith and Denkins guide us to a similar conclusion here. Turning to this case, we discern no difference from our precedents that would warrant a different outcome. Hoff moved to withdraw his counsel when he moved to withdraw his guilty plea. Hoff's counsel explained that he had not formally filed a motion to withdraw the guilty plea. Instead, defense counsel explained that R. 54, PageID 306. Just as in Smith, the district court here granted the motion to withdraw and informed Hoff that the court acknowledged his oral request to withdraw his plea and...
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