United States v. McIntosh

• Citation: 704 F.3d 894
• Decision Date: 07 January 2013
• Docket Number: No. 10–15894.,10–15894.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James Leray McINTOSH, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

704 F.3d 894

UNITED STATES of America, Plaintiff–Appellee,

v.James Leray McINTOSH, Defendant–Appellant.

No. 10–15894.

United States Court of Appeals,Eleventh Circuit.

Jan. 7, 2013.

Ramona Albin, Michael B. Billingsley, Gregory R. Dimler, Alice H. Martin, Joyce White Vance, Birmingham, AL, for Plaintiff–Appellee.

James Derek Drennan (Court–Appointed), Jaffe & Drennan, PC, Birmingham, AL, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Alabama.

Before DUBINA, Chief Judge, and CARNES and GILMAN,^* Circuit Judges.

GILMAN, Circuit Judge:

James Leray McIntosh was sentenced to a term of 120 months of imprisonment, the mandatory-minimum sentence for his convictions on a drug-trafficking charge and a weapons charge. Due to a technical error in the original indictment and a more substantial mistake by the government in its handling of that error, no indictment was pending against McIntosh at the time of his sentencing. This has caused McIntosh to challenge the power of the district court to sentence him at all. He also challenges the length of his sentence due to the enactment of the Fair Sentencing Act of 2010, Pub.L. 111–220, § 2(a), 124 Stat. 2372 (the FSA), after he committed his offenses but before his sentencing.

Although we are unaware of any prior case with a substantially similar factual scenario, we conclude that the district court retained the power to sentence McIntosh, and that the exercise of that power did not violate any of his constitutional rights or run afoul of the Federal Rules of Criminal Procedure. The sentence imposed, however, must be vacated because the court did not apply the U.S. Sentencing Guidelines as revised by the FSA. We therefore AFFIRM the district court's orders denying McIntosh's motions to terminate the proceedings and withdraw his guilty plea, but we VACATE the sentence and REMAND the case for resentencing consistent with this opinion.

I. BACKGROUND

McIntosh was indicted in September 2007 on one count of possessing five grams or more of crack cocaine with the intent to distribute the drug and on one count of carrying a firearm during and in relation to a drug-trafficking offense. The charges arose from a November 2005 traffic stop during which an officer discovered cocaine and a firearm in McIntosh's vehicle. But the indictment mistakenly alleged that McIntosh committed these offenses in February 2007.

The government discovered this mistake after McIntosh pleaded guilty to the charged offenses but before his sentencing. To correct the error, the government obtained a second indictment alleging the proper date of the offenses and then filed a motion to dismiss the original indictment without prejudice, which the district court granted. Why the government chose this course of action, as opposed to simply filing a superseding indictment or recognizing that the error was merely a technical one not requiring any correction, is a mystery that its counsel could not explain at oral argument other than to characterize the steps taken as an “overreaction.” The consequences of the government's misstep, however, have engendered the host of constitutional and procedural challenges set forth below.

To begin with, McIntosh entered a conditional guilty plea to the new indictment, but reserved his right to appeal his conviction on double-jeopardy grounds. After the court sentenced McIntosh to 120 months of imprisonment, he timely appealed.

This court agreed with McIntosh that the second indictment violated the Double Jeopardy Clause of the Fifth Amendment. United States v. McIntosh, 580 F.3d 1222, 1229 (11th Cir.2009) [hereinafter McIntosh I]. It found that jeopardy attached when the district court accepted McIntosh's original guilty plea and that the acceptance of such a plea on each count was “itself a conviction.” Id. at 1228 (internal quotation marks omitted). Because the dismissal of the original indictment, which contained only a technical error regarding the date of the offenses, “did not vacate the convictions or set aside the guilty plea,” id., “the Double Jeopardy Clause prohibited a second prosecution of McIntosh for the same offenses.” Id. at 1229. This court therefore vacated the judgment of conviction and remanded the case with instructions to dismiss the second indictment. Id.

Once the district court dismissed the second indictment, the government moved to set a sentencing hearing based on the convictions established by McIntosh's guilty plea to the original indictment. The court granted the motion over McIntosh's objection. McIntosh then filed a motion to terminate the proceedings, arguing that the court lacked jurisdiction to proceed to sentencing absent a pending indictment and that such a sentencing would violate the Double Jeopardy Clause. The court denied the motion and, after this court dismissed McIntosh's interlocutory appeal for lack of jurisdiction, set the case for sentencing in December 2010.

McIntosh also objected to his Presentence Report in its entirety, moved to withdraw his guilty plea, and argued that the FSA's revised penalty provisions should be applied to his sentence. His motions were denied and his objections were overruled. The court then sentenced him to a 120–month term of imprisonment, the mandatory-minimum sentence providedby the pre-FSA Guidelines. This timely appeal followed.

II. ANALYSIS

A. Standards of review

We review de novo questions concerning alleged violations of the Double Jeopardy Clause, McIntosh I, 580 F.3d at 1226, a district court's subject-matter jurisdiction, Mesa Valderrama v. United States, 417 F.3d 1189, 1194 (11th Cir.2005), the sufficiency of an indictment, United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir.2012), and the legal interpretation of sentencing statutes, United States v. Burge, 407 F.3d 1183, 1186 (11th Cir.2005). The district court's denial of a motion to withdraw a guilty plea, on the other hand, is reviewed under the abuse-of-discretion standard. United States v. Medlock, 12 F.3d 185, 187 (11th Cir.1994).

B. Sentencing McIntosh based on his guilty plea to the original indictment did not violate the Double Jeopardy Clause

The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. “Based on the fundamental notion that serial prosecutions by the government are abusive,” McIntosh I, 580 F.3d at 1227, the Clause “protects against a second prosecution for the same offense” and “protects against multiple punishments for the same offense,” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). McIntosh argues that proceeding to sentence him based on his guilty plea to the original indictment, after that indictment was dismissed, constitutes a second prosecution for the same offense in violation of the Double Jeopardy Clause.

As this court noted in McIntosh I, jeopardy attached once the district court unconditionally accepted McIntosh's guilty plea to the original indictment. 580 F.3d at 1227–28. But McIntosh contends that the subsequent dismissal of the original indictment terminated the case, making any further proceedings in the case a second, and thereby unconstitutional, prosecution for the same offense. His argument, however, is directly at odds with this court's conclusion from McIntosh I that the dismissal of the original indictment did not withdraw McIntosh's guilty plea or vacate his conviction. The court noted that McIntosh's “conviction still exists and awaits a sentence,” id. at 1228, and reiterated in the summary of the holding that his “initial conviction was never vacated,” id. at 1229. In short, dismissing the original indictment did not terminate the case as McIntosh asserts.

McIntosh's double-jeopardy argument ultimately depends on the proposition that the dismissal of the original indictment, after his conviction but before his sentencing, terminated the case. But he cites no authority to support such a proposition. To the contrary, his sentencing was the natural progression of a single, continuous course of jeopardy. Because the original prosecution did not end, the sentencing that proceeded from that original prosecution cannot be characterized as a second prosecution. See Schiro v. Farley, 510 U.S. 222, 230, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994) (refusing “to treat the sentencing phase of a single prosecution as a successive prosecution for purposes of the Double Jeopardy Clause”). That the government unconstitutionally placed McIntosh in double jeopardy through the prosecution of a second indictment does not transform the first and only sentencing on the original indictment into a double-jeopardy problem. The sentencing was neither a second prosecution of, nor a second punishment for, the same offense. See Pearce, 395 U.S. at 717, 89 S.Ct. 2072. As such, proceeding to sentencing after McIntosh's conviction did not violate the Double Jeopardy Clause.

C. The district court retained jurisdiction despite the dismissed indictment

McIntosh next argues “that an indictment is a jurisdictional predicate and prerequisite” for prosecuting a criminal case. He cites precedent from the Supreme Court and lower courts that speak to the necessity of a valid indictment as a prerequisite to a federal court's exercise of jurisdiction. See, e.g., Ex parte Bain, 121 U.S. 1, 13, 7 S.Ct. 781, 30 L.Ed. 849 (1887) (holding that a court has no jurisdiction over an offense not properly presented by an indictment), overruled by United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); Ex parte Wilson, 114 U.S. 417, 429, 5 S.Ct. 935, 29 L.Ed. 89 (1885) (holding that the district court exceeded its jurisdiction by holding a defendant to answer for a crime and sentencing him without an indictment); United States v. Moore, 37 F.3d 169, 173 (5th Cir.1994) (“[T]he lack of an indictment in a...