United States v. McIntosh

• Decision Date: 21 March 2022
• Docket Number: No. 20-5089,20-5089
• Citation: 29 F.4th 648
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. John Michael MCINTOSH, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

29 F.4th 648

UNITED STATES of America, Plaintiff - Appellee,

v.John Michael MCINTOSH, Defendant - Appellant.

No. 20-5089

United States Court of Appeals, Tenth Circuit.

FILED March 21, 2022

John M. Bowlin, Bowlin & Schall LLC, Greenwood Village, Colorado, for Defendant-Appellant.

Eleanor F. Hurney, Assistant United States Attorney (Clinton J. Johnson, Acting United States Attorney, with her on the briefs), Tulsa, Oklahoma, for Plaintiff-Appellee.

Before McHUGH, EBEL, and EID, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant John Michael McIntosh pled guilty to five counts of robbery in violation of 18 U.S.C. § 1951, plus three counts of brandishing a pistol during those five robberies in violation of 18 U.S.C. § 924(c). During the change-in-plea hearing held by the district court, however, Mr. McIntosh repeatedly expressed doubts about whether he should plead guilty and suggested that his mental capacity was impaired. After much indecision and two off-the-record discussions with the government, he finally went forward with the plea and the district court completed its plea colloquy.

But two months after entering the plea, Mr. McIntosh filed a motion to withdraw it, contending that the plea was neither knowing nor voluntary and therefore violated his constitutional due process rights. The district court denied the motion and accepted the plea agreement at sentencing. Mr. McIntosh now appeals, arguing that the plea was constitutionally invalid in the first instance and also arguing, in the alternative, that the denial of his motion to withdraw the plea was an abuse of discretion. Exercising jurisdiction under 28 U.S.C. § 1291, we find that the district court failed to ensure the plea was knowingly and voluntarily made, and so we VACATE Mr. McIntosh's convictions and REMAND for further proceedings.

I. BACKGROUND

A grand jury charged Mr. McIntosh with five counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and five counts of brandishing a firearm during the robberies, in violation of 18 U.S.C. § 924(c), based on allegations that he robbed five Oklahoma convenience stores and other retail establishments at gunpoint over a period of six days in February 2019.

Before trial, at the request of defense counsel and by order of the district court, a psychologist examined Mr. McIntosh and diagnosed him with substance abuse disorders and malingering. The evaluator concluded that Mr. McIntosh did not meet the diagnostic criteria for any mood, depressive, or psychiatric disorder that would render him unable to understand the proceedings against him. The district court subsequently found Mr. McIntosh competent to stand trial.

About a month before trial was scheduled to begin, Mr. McIntosh notified the district court that he intended to plead guilty pursuant to an agreement with the government. The agreement stipulated that Mr. McIntosh would plead guilty to eight of the ten charges and be sentenced to 300 months’ imprisonment, while the government would dismiss two of the brandishing counts against him. In advance of a change-in-plea hearing, Mr. McIntosh signed the plea agreement documents, including a statement attesting that he had reviewed the entire agreement with counsel, understood all provisions, and voluntarily agreed to the deal.

But at the beginning of the district court's change-in-plea hearing on November 1, 2019, Mr. McIntosh voiced doubts about the agreement, stating:

I just feel like—honestly I feel like that it's too much time in my opinion. And I haven't been taking my medication because they took me off of it in David L. Moss [Criminal Justice Center]. And I just don't feel like my judgment is right, you know what I'm saying? I just feel like—I'm all over the place. You know, I want to take the deal, I don't want to take the deal. And I feel like my mental state of mind isn't right to take anything right now because I don't understand, you know, what's really going on.

(R., vol. II at 16.)

The district court responded that Mr. McIntosh seemed to "need[ ] some other time," and asked Mr. McIntosh's counsel for their thoughts. (Id. at 17.) Counsel replied that Mr. McIntosh had a "basic understanding" of the plea agreement and appeared to be competent, and noted that the government's plea offer was likely the best option for him. (Id. at 18.) At that point, the government offered to speak with Mr. McIntosh and his counsel off the record to explain the plea agreement in more detail. The court agreed and granted recess, during which the parties conferred.

Upon returning from recess, Mr. McIntosh told the court that he would "just take the deal." (Id. at 22.) The court proceeded to explain some of the terms of the plea agreement to him and stated, "I think what the government and the defense counsel have done is something that would be better for you." (Id. at 22.) The court then administered an extensive plea colloquy, asking Mr. McIntosh and his counsel questions such as whether he suffered from any mental disability or whether there was any reason the hearing should not proceed. No objections or reasons not to proceed were given.

After the court discussed the rights being waived and the precise terms of the plea agreement with Mr. McIntosh, Mr. McIntosh asked to speak with his lawyer. He was allowed to do so, and when the hearing resumed his counsel informed the court that Mr. McIntosh had changed his mind again and now wished to go to trial. The court said, "All right. You understand the difference? ... You know that whatever the government has told you about, you know, for 25 years here, the government can go a lot further?" (Id. at 39–40.) Mr. McIntosh said he did understand and confirmed that trial was what he wanted.

The government requested to speak with Mr. McIntosh again. The court allowed them to have an off-the-record conference. After this second conference with the government, Mr. McIntosh again indicated he was willing to proceed with the plea agreement. The court said, "All right. Thank you. If it helps, I think it's the right thing you did, all right?" (Id. at 40.) Mr. McIntosh then confirmed that he was satisfied with his representation and told the court there was no reason why it should not accept his guilty plea. The hearing proceeded with the government stating the facts underlying the charges, Mr. McIntosh expressly pleading guilty to each charged count, and the district court making findings to support the conviction—including a finding that "the plea of guilty is knowingly, voluntarily, and intelligently made with a full understanding of the nature of the charges, the consequences of the plea, and defendant's constitutional rights." (Id. at 49.) The court accepted the plea but deferred its decision on the stipulated sentence until the sentencing hearing, which was scheduled for February 3, 2020.

On December 30, 2019—approximately two months after entering the guilty plea, but before sentencing—Mr. McIntosh filed a motion to withdraw his plea. He claimed that the plea was not "knowing" because he did not understand "that the Court had no authority to order a sentence below the stipulated twenty-five years," and that it was not voluntary because "it was clear that [he] did not wish to enter plea of guilty" and "[t]he nature of the environment was such that Mr. McIntosh was unable to exercise his free will." (R., vol. I at 63–64.) The district court denied this motion, finding that Mr. McIntosh's guilty plea was knowing and voluntary and as a result there was no "fair and just" reason to grant his request. (Id. at 124.)

At sentencing, the district court accepted the plea agreement terms and sentenced Mr. McIntosh to 25 years’ imprisonment. This appeal followed, challenging both the district court's initial acceptance of the plea and its subsequent denial of the motion to withdraw the plea.

II. STANDARD OF REVIEW

Challenges to the validity of a plea are generally reviewed de novo. United States v. Rollings, 751 F.3d 1183, 1191 (10th Cir. 2014). The government argues, however, that Mr. McIntosh failed properly to preserve his challenges to the plea's validity, which would mean this court would apply a plain-error standard of review. See United States v. Perez-Perez, 992 F.3d 970, 974 (10th Cir. 2021). We disagree. Mr. McIntosh specifically claimed that his plea was not knowing and not voluntary in his motion to withdraw the plea below. In that motion, he supported his claims that the plea was not knowing by highlighting the statements that his "judgment" was not "right," his "mental state of mind" was not "right," and he did not "understand ... what [was] really going on." (R., vol. I at 83–84.) As for his claims of involuntariness, the motion noted the repeated conferences with the government during the hearing and argued that they were coercive.

On appeal, Mr. McIntosh makes arguments that are substantially similar—if not identical—to his arguments below, asserting that the plea was not knowing and not voluntary due to his "frail" mental state, which the district court inadequately explored, plus alleged coercion by the government. (Aplt. Br. at 14.) Though his appellate briefs may be more detailed than his motion to withdraw the plea, Mr. McIntosh's arguments below nonetheless gave the district court ample opportunity to consider these issues—and the district court in fact did so in a thorough written opinion. This is sufficient to preserve Mr. McIntosh's arguments. See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (noting that "a federal appellate court does not consider an issue not passed upon below" (emphasis added) (quoting Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) ).

We will review de novo Mr. McIntosh's claim that his guilty plea was not entered knowingly and voluntarily. United States v. Mitchell, 633 F.3d 997, 1002 (10th Cir. 2011) (applying de novo review where the issue of "whether [the defendant's] plea was knowing and...