United States v. Pierre
| Decision Date | 22 April 2022 |
| Docket Number | 20-30728 |
| Parties | United States of America, Plaintiff-Appellee, v. Oliver Pierre, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Eastern District of Louisiana No. 2:17-CR-132-2
Before Smith, Elrod, and Oldham, Circuit Judges.
Oliver Pierre pleaded guilty to conspiring to traffic at least 280 grams of cocaine. In exchange, the government dropped a less serious charge and agreed not to pursue a sentencing enhancement. In hindsight, it is clear that the sentencing enhancement could not have applied to Pierre even if the government had pursued it. So, Pierre gave up his right to stand trial to avoid a punishment that could never have come. Because he has shown that the district court committed plain error by accepting a plea based on an illusory benefit, we VACATE the district court's judgment and the plea and REMAND for further proceedings consistent with this opinion.
In the spring of 2014, local law enforcement began investigating the drug trafficking activities of a person called "B.P." The officers purchased cocaine base from B.P. three times in April of that year for quantities totaling about ten grams. The DEA collected more information and by the next year learned that one of B.P.'s suppliers was named James Bickham. They purchased cocaine from B.P three more times for quantities totaling about twenty-five grams. The DEA officers soon intercepted phone calls between B.P. and Bickham and learned that the two of them hoped to make a drug deal in Houston. Specifically, they discussed having a courier, Pierre, assist them in the deal.
The officers staked out B.P.'s home at the scheduled time. They followed B.P. to a gas station, where he parked next to Pierre. Pierre tossed two bags of cocaine base into B.P.'s car, and the two of them drove away separately. The officers stopped and detained B.P. and recovered 156.1 grams of cocaine base.
Pierre was indicted for conspiring to traffic 280 grams or more of cocaine base (Count 1) and distributing 28 grams or more of cocaine base (Count 2). He was assigned counsel in late 2017 and over a year later successfully moved for the appointment of new counsel. Eventually a plea agreement was reached. Under it, Pierre pleaded guilty to Count 1. In return, the government agreed to request dismissal of Count 2 and agreed that it would not charge Pierre as a multiple offender under 21 U.S.C. § 851-a provision which, Pierre was told, would have raised his mandatory minimum sentence from ten years to fifteen years.[1]
At Pierre's re-arraignment, the district court read Count 1 of the indictment, which charged that Pierre conspired "to distribute and possess with the intent to distribute 280 grams or more of cocaine base . . . in violation of [21 U.S.C. § 841(a)(1), (b)(1)(A)] ."[2] It then explained that for him to be convicted of Count 1, the government would have to prove beyond a reasonable doubt that: (1) two or more persons reached an agreement to possess and distribute cocaine base; (2) Pierre knew of the agreement's unlawful purpose; and (3) Pierre willfully joined the agreement. At that point the court did not specifically explain that the government would have to prove that Pierre's participation in the conspiracy foreseeably involved the 280-gram quantity.
The factual basis for the plea provided by the government contained the facts surrounding the incident described above. It also included a stipulation for the purposes of sentencing that Pierre had participated in the trafficking of at least 280 grams, but less than 840 grams, of cocaine base. Pierre affirmed that the information pertaining to him was true.
The presentence report also noted that both the government and Pierre stipulated to the 280- to 840-gram quantity for the purposes of sentencing. But it likewise specifically noted Pierre's role as courier for "at least 156.1 grams of crack cocaine," and that Pierre was a "minor participant in any criminal activity." The criminal history portion of the presentence report identified five prior state convictions, and Pierre's sentencing range was thus calculated as 120 to 137 months. The district court sentenced Pierre to the statutory minimum 120 months. Pierre appealed the judgment and sentence to this court, arguing for the first time that the district court erred by accepting his guilty plea and that he was unconstitutionally deprived of effective assistance of counsel.
Pierre argues that his plea was not knowing and voluntary and thus should be vacated because, among other things, it was conditioned on the government agreeing not to pursue a sentencing enhancement under a provision that could not apply to him. We agree with Pierre and hold that that the district court plainly erred by accepting his plea under these circumstances.
Pierre argues that the district court erred by accepting his guilty plea. Because he raises this challenge for the first time on appeal, we review for plain error. See United States v. Hicks, 958 F.3d 399, 401 (5th Cir. 2020); United States v. Hughes, 726 F.3d 656, 659 (5th Cir. 2013). Under the plain error standard, Pierre must show (1) an error, (2) that is clear or obvious, and (3) that affected his substantial rights. United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010). When challenging the acceptance of a guilty plea, specifically, he must demonstrate "a reasonable probability" that he would not have pleaded guilty without the error. Hicks, 958 F.3d at 401-02. And "[i]n making this determination, we may consult the whole record on appeal." United States v. Reyes, 300 F.3d 555, 559 (5th Cir. 2002). Finally, if Pierre satisfies each criterion, we may vacate the judgment if the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
Pierre argues that his guilty plea was not knowing and voluntary because it was induced by the government's promise not to pursue a sentencing enhancement under a provision which could not have applied to him.[3] The government concedes that the sentencing enhancement provision could not have applied but argues that Pierre cannot satisfy the plain error standard because he cannot show that there is a reasonable probability he would not have pleaded guilty without the error. We agree with Pierre.
A guilty plea must be knowing and voluntary. Parke v. Raley, 506 U.S. 20, 28 (1992). "That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination." Id. at 29. A guilty plea is not sufficiently voluntary if it is induced by "deception, an unfulfillable promise, or misrepresentation . . . ." United States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997). "A plea of guilty that is based on the fear of a non-existent penalty can be neither knowing nor intelligent, and this flaw colors the fundamental fairness of the entire proceeding." Kennedy v. Maggio, 725 F.2d 269, 273 (5th Cir. 1984).
Under this standard, Pierre's plea was not knowing and voluntary, so the district court erred by accepting it. His guilty plea was induced in part by the government's promise not to charge him as a multiple offender "having at least one prior felony drug conviction, which would have resulted in a mandatory sentence of at least fifteen (15) years" under 21 U.S.C. §§ 841(b)(1)(A) and 851. The current version of § 841(b)(1)(A) explains that a defendant's mandatory minimum sentence may be increased from ten to fifteen years if he has a "prior conviction for a serious drug felony." A "serious drug felony" is one described in 18 U.S.C. § 924(e)(2) for which the defendant served a term of imprisonment of over a year and for which the defendant's release from imprisonment occurred within fifteen years of the current offense. 21 U.S.C. § 802(57). And 18 U.S.C. § 924(e)(2)(A)(ii) limits the provision to offenses which, "under State law, involv[e] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . [and] for which a maximum term of imprisonment of ten years or more is prescribed by law."
Pierre had three prior convictions for possessing a controlled substance. As the government concedes, those offenses "do not include the necessary elements of manufacturing, distributing, or possessing with intent to do so," so they do not provide a basis for the § 841(b)(1)(A) enhancement. And Pierre's one conviction for distribution carries a maximum sentence of less than ten years.[4] So, Pierre's plea was induced by the promise of an illusory benefit and thus was not sufficiently knowing and voluntary.
This error flatly contradicted the applicable statutory language of the sentencing enhancement provision, and so was "clear or obvious." Cf. Trejo, 610 F.3d at 319. To prove that any error was "clear or obvious," a defendant need not identify a past decision of this court directly holding in the defendant's favor on the exact same issue. Instead, our rule is that a defendant must show that the "error is clear under existing law." United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009) (quoting United States v Maturin, 488 F.3d 657, 663 (5th Cir. 2007)). An undisputed contradiction of statutory language is an error that is clear under existing law. United States v. Aderholt, 87 F.3d 740, 744 (5th Cir. 1996) (). There is no dispute that the sentencing enhancement provision could not have...
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