United States v. Richards
| Decision Date | 26 November 2014 |
| Docket Number | 8:13CR371 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DARELL RICHARDS, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the court after a sentencing hearing on August 15, 2014. The matter was continued to enable the court to address several issues, including the defendant's objections to the Presentence Investigation Report (PSR).1
The facts in this case require the court to wade into an Apprendi analysis to determine the essential demands of due process in connection with a criminal sentence increased by prior convictions.2 The case requires discussion of the balance, interplay, and tension between the Supreme Court's elements-centric focus in Apprendi and following cases and the tenuous, though still viable, Almendarez-Torres prior-conviction exception to the Apprendi rule.3 Intertwined with the inquiry are the double jeopardy implications of the defendant's plea, Fed. R. Crim. P. 11 error and due process concerns.
In this case, the government contends the court is required to sentence the defendant to a fifteen-year mandatory minimum sentence, although he entered a plea of guilty to an indictment that charges a crime with a maximum sentence of ten years. For reasons set forth below, the court finds that fundamental fairness demands that ten years is the maximum sentence the court can impose. The court also finds the defendant's objections to the Presentence Investigation Report ("PSR") should be sustained.
Darell Richards was charged in an indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Filing No. 1, Indictment. The Indictment did not charge, or hint by statutory citation, any enhancement for being an armed career criminal. Id. On February 7, 2014, the defendant entered a plea of guilty to the Indictment. Filing No. 21, text minute entry. In his petition to enter a plea, he acknowledged that the penalty for the violation is zero to ten years. Filing No. 23, Petition at 4. During the plea colloquy at the change-of-plea hearing, the court, with neither objection nor comment from the government, informed the defendant that the maximum penalty he could face was ten years. The government made no mention of the possibility of any enhanced penalty based on prior convictions.4
The court found the defendant's plea was knowing and voluntary and accepted the plea. The court then ordered the preparation of a Presentence Report (PSR) by theUnited States Office of Probation ("Probation") and set a hearing for sentencing. Filing No. 21, text minute entry.
The PSR provided the parties with the first notification of a possible sentencing enhancement. Probation found the defendant is subject to a statutory imprisonment range of a minimum mandatory of 15 years and a maximum of life, based upon the defendant's status as an "Armed Career Criminal" under 18 U.S.C. § 924(e)(1). See Revised PSR (sealed) at 6. Probation based that conclusion on three convictions that "occurred between 2007 and 2010, in the Douglas County District Court, and consist of assault on an officer; burglary; and assault on an officer."5 Id. The defendant's criminal history includes: two juvenile adjudications; two felony convictions for assault on a corrections officer, one at age 17 and one at age 18; a felony conviction for theft by receiving and flight to avoid arrest at age 15; a felony conviction for receiving a stolen item at age 16; and a felony conviction for burglary at age 20.6 Id. at 8-10.
At the sentencing hearing that commenced on May 30, 2014, the defendant objected to the imposition of the 15-year mandatory minimum sentence. The court ordered briefing on two issues: 1) whether a firearms enhancement must be pled in the indictment; and 2) when jeopardy attaches. Filing No. 28, text minute entry.
The government responded that the enhancement does not have to be charged in the indictment, but conceded that jeopardy attached at the time the court accepted the defendant's plea. Filing No. 29, Brief at 3. It argues that although jeopardy hasattached, the Fifth Amendment is not implicated because Richards's "prior convictions alone, with nothing required from the United States, operate to increase his penalties under the Armed Career Criminal Act." Filing No. 29, Response at 3.
The government concedes that the defendant was not properly advised of the minimum and maximum penalties at the time of his plea as required by Fed. R. Crim. P. 11(b)(1)(H)&(I) and acknowledges that a Rule 11 error has occurred. Filing No. 26, Government's Sentencing Statement at 2. It further concedes that the Eighth Circuit Court of Appeals would not be likely to find the error harmless on review. Id. The government contends that the remedy for the violation is "for the court to vacate the guilty plea and allow the defendant to plead anew." Id.; see also Filing No. 29, Government brief at 3.
The defendant argued in his response that he is not subject to the § 924(e) enhancement because his prior conviction for burglary is not a violent crime under Supreme Court's recent holding in Descamps v. United States, — 570 U.S. —, —, 133 S. Ct. 2276, 2293 (2013). Filing No. 32, Brief at 1. The government countered, for the first time, that Richards's conviction for flight to avoid arrest also constitutes a violent felony, and argues Richards is subject to the ACCA fifteen-year mandatory minimum regardless of whether the burglary conviction counts as a violent felony.7 Filing No. 36, Brief at 1-2.
At the rescheduled sentencing hearing on August 15, 2014, Richards orally objected to use of his flight-to-avoid-arrest conviction as an ACCA predicate felony,again basing the objection on Descamps. The court considers the defendant's response and his arguments at the hearing as objections to the PSR. The defendant contends that the court must determine whether his prior offenses trigger application of the ACCA before it considers the double jeopardy issue. Id. at 4. The defendant has not moved to withdraw his plea.
The government has submitted judicial records of the defendant's convictions for burglary and flight to avoid arrest. See Filing No. 36, Ex. 1 (2010 burglary conviction) and Ex. 2 (). The records consist of the charging documents (Informations) and sentencing orders for each crime.8 Id.
In Apprendi, the Supreme Court held that if the maximum penalty a defendant faces is increased based on a finding of fact, that fact must be treated as an element ofthe crime. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Just as with other elements, a defendant has right to have a jury determine that fact based on proof beyond reasonable doubt. Id. In the years that followed, the Supreme Court extended this rule to facts that trigger eligibility for the death penalty, facts that raise a sentencing guideline range, facts that permit larger criminal fines, and, most recently, to facts that trigger mandatory minimum sentence. See Ring v. Arizona, 536 U.S. 584, 588-589 (2002) (); Blakely v. Washington, 542 U.S. 296, 302 (2004) (); United States v. Booker, 543 U.S. 220, 226-227, 233-234 (2005) (); Cunningham v. California, 549 U.S. 270, 281 (2007) (); Burrage v. United States, — U.S. —, —, 134 S. Ct. 881, 886-87 (2010) (); Southern Union Co. v. United States, — U.S. —, —, 132 S. Ct. 2344, 2348-49 (2012) (); and Alleyne v. United States, — U.S. —, —, 133 S. Ct. 2151, 2156 (2013) (). The Supreme Court's findings were based on Fifth and Sixth Amendment concerns involving rights to trial by jury, appropriate notice, proper burdens of proof, and due process. See, e.g., United States v. Cotton, 535 U.S. 625, 627 (2002); Blakely, 542 U.S. at 307; Booker, 543 U.S. at 243. The Supreme Court has also held that a substantively unreasonable penalty is illegaland must be set aside. Gall v. United States, 552 U.S. 38, 51 (2007); see e.g., Meirovitz v. United States, 688 F.3d 369, 373 (8th Cir. 2012) (); Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir. 2011) (); see also Jones v. United States, — S. Ct. —, —, 2014 WL 1831837, *1 n.* (October 14, 2014) (Mem.) (Scalia, Thomas, and Ginsburg, J.J., dissenting from denial of certiorari in a case involving a sentence increase based on acquitted conduct).
The limits of due process are defined with reference to the line that separates an element of a crime from a sentencing factor. See, e.g., Booker, 543 U.S. at 242; Blakely, 542 U.S. at 302; Apprendi, 530 U.S. at 494; Jones v. United States, 526 U.S. 227, 232-33 (1999) (). These cases establish that when proof of a fact achieves the status of an element of what is essentially a greater offense, a defendant is afforded several Constitutional protections: the right to a jury determination and the right to proof beyond a reasonable doubt.9 See...
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