United States v. Sutton

• Decision Date: 10 July 2017
• Docket Number: No. 16-5587,16-5587
• Citation: 862 F.3d 547
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randall SUTTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

862 F.3d 547

UNITED STATES of America, Plaintiff-Appellee,

v.Randall SUTTON, Defendant-Appellant.

No. 16-5587

United States Court of Appeals, Sixth Circuit.

Argued: April 26, 2017

Decided and Filed: July 10, 2017

ARGUED: Steven R. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for Appellant. Nicholas Maynard Parker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Steven R. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for Appellant. Charles P. Wisdom, Jr., Callie R. Owen, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

Before: SUHRHEINRICH, BATCHELDER, and STRANCH.

OPINION

SUHRHEINRICH, Circuit Judge.

I. INTRODUCTION

In 2005, Defendant Randall Sutton committed four armed bank robberies in quick succession in Kentucky and in Ohio. Defendant agreed to plead guilty to the Kentucky charges in the Southern District of Ohio and the case was properly transferred from the Eastern District of Kentucky to the Southern District of Ohio pursuant to Rule 20 of the Federal Rules of Criminal Procedure. Although Defendant pleaded guilty to the Ohio charges in the Southern District of Ohio, he never formally entered a guilty plea to the Kentucky charges, but was nevertheless sentenced in the Southern District of Ohio as if he had. No one seemed to notice, however—not the defendant, not the government, not the district court—until five years later, when Defendant filed a motion in the Southern District of Ohio to vacate under 28 U.S.C. § 2255, challenging his conviction and sentence on the Kentucky charges on the ground that he never pleaded guilty to those charges. The Southern District of Ohio vacated Defendant's conviction and sentence on the Kentucky charges and transferred the case back to the Eastern District of Kentucky, where he was arraigned and then entered a not guilty plea, nearly eleven years after he had been indicted. He then filed a motion to dismiss, alleging that his speedy trial rights had been violated under both the Speedy Trial Act (STA), 18 U.S.C. § 3161 et seq ., and the Sixth Amendment, which the Eastern District of Kentucky court denied.¹ The question is whether this oversight violated Defendant's rights under either the STA or the Sixth Amendment.

II. BACKGROUND

On July 27, 2005, Defendant robbed a bank in Fort Wright, Kentucky, while brandishing a firearm, in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 924(c)(1).² In September and October 2005, he robbed three banks in Ohio, while brandishing a firearm, all in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 924(c)(1). On December 14, 2005, Defendant was indicted by a federal grand jury in the Eastern District of Kentucky for the Kentucky armed bank robbery (the Kentucky case). He was in custody in Ohio at that time. A week later, on December 21, 2005, a federal grand jury in the Southern District of Ohio indicted him for the Ohio robberies and related firearms offenses (the Ohio case).

On November 1, 2006, Defendant agreed to plead guilty to two Ohio charges, one count of armed robbery in violation of § 2113(a) and (d), and one count of brandishing firearms in violation of § 924(c)(1). In that plea agreement Defendant also agreed to waive jurisdiction pursuant to Rule 20 of the Federal Rules of Criminal Procedure³ and enter a guilty plea to one additional count of armed bank robbery and one additional count of brandishing a firearm charged in the Kentucky case. He signed a statement of facts that included facts for both crimes. ID# 883.

On February 15, 2007, Defendant entered a guilty plea to two bank robbery counts in the Ohio case. At that time Defendant agreed to the factual statement as read before the court, which included the Kentucky offense. ID # 871. Defendant was willing to also plead guilty to the Kentucky charges, but the district court decided to wait until the Rule 20 paperwork was completed before accepting Defendant's guilty plea to the Kentucky charges. On May 4, 2007, Defendant signed the requisite Rule 20 consent form to transfer the Kentucky charges to the Ohio court. Accordingly, the Kentucky case was transferred to the Southern District of Ohio and consolidated. That form reflected Defendant's desire to "plead guilty to the offense charged, to consent to the disposition of the case in the Southern District of Ohio ... and to waive trial in the above captioned District," i.e. the Eastern District of Kentucky. ID# 10.

But Defendant never actually pleaded guilty to the Kentucky charges after the case was transferred. Nonetheless, he was sentenced on both the Ohio and Kentucky charges on August 29, 2007, in the Southern District of Ohio. He received concurrent terms of eleven years on both the bank robbery charges (one in the Ohio case and one in the Kentucky case), and consecutive terms of seven years for the Ohio § 924(c) charge and twenty-five years for the Kentucky § 924(c) charge, for a total of forty-three years. Despite never actually entering a guilty plea to the Kentucky charges, Defendant did not object at the time of sentencing or during his direct appeal. The court and the government did not catch the error either. On April 19, 2012, after his discretionary appeal to the United States Supreme Court was denied, Defendant collaterally attacked his conviction and sentence pursuant to 28 U.S.C. § 2255 in the Southern District of Ohio. On October 6, 2013, while the motion to vacate was pending, Defendant filed a "Supplemental Memorandum," asserting for the first time his right to a speedy trial. See United States v. Sutton , No. 05-cr-183, Doc. No. 206, at 7-10 (S.D. Ohio Oct. 6, 2013).

On September 30, 2015, the Southern District of Ohio court vacated his conviction and sentence on the Kentucky charges. The district court did not address Defendant's speedy-trial argument, because it could not under Federal Rule of Criminal Procedure 20. See United States v. Sutton , No. 05-cr-183, Doc. 211 (S.D. Ohio Sept. 30, 2015). In that same order the Southern District of Ohio court gave Defendant "the opportunity to enter a valid plea to the Kentucky charges, consistently with his plea agreement." Id. at ID# 1667. After status conferences on October 9, 2015, December 11, 2015, and December 16, 2015,⁴ during which time Defendant apparently mulled over the offer, the Ohio court transferred the case back to the Eastern District of Kentucky on December 23, 2015. This transfer order stated that the case was being transferred back to the Eastern District of Kentucky for disposition because Defendant did not enter a guilty plea. ID# 806. On January 20, 2016, the Eastern District of Kentucky court ("district court") held a status conference and appointed counsel for Defendant. On February 18, 2016, Defendant entered a not guilty plea to the Kentucky charges and trial was scheduled for April 18, 2016.

On February 26, 2016, Defendant filed a motion to dismiss the indictment, arguing that the STA clock began ticking on February 15, 2007, the date he pleaded guilty to the Ohio charges, or August 29, 2007, the date he was sentenced on both the Ohio and Kentucky charges. Under either of these start dates, the seventy-day limitation of the STA was easily exceeded. The United States countered that the proper start date for STA purposes was January 20, 2016, the date Defendant first appeared before the Eastern District of Kentucky.

On April 27, 2016, the district court denied Defendant's motion, rejecting both sets of dates for calculating compliance with the STA. R. 129. First, the district court rejected Defendant's suggestion that the STA clock began running during one of his appearances in the Ohio court because (1) the Sixth Circuit held in United States v. O'Dell , 154 F.3d 358, 360, 362 (6th Cir. 1998), that the plain language of 18 U.S.C. § 3161(c)(1) requires a not guilty plea, and Defendant never entered a plea of not guilty to the Kentucky charges during any Ohio appearance; and (2) the Ohio court would not have had jurisdiction to try him had he pleaded not guilty, because Rule 20(c) requires the transferee court to return the case to the court "where the prosecution began" if the defendant pleads not guilty after the transfer. See Fed. R. Crim. P. 20(c).

The district court also rejected the United States' argument that the STA clock started running on January 20, 2016, when Defendant first appeared for a status conference in the Eastern District of Kentucky (by that time he had entered a not guilty plea on January 18, 2016). Although the government's argument appeared to fit within the language of § 3161(c)(1), the district court noted that the Sixth Circuit applies a different rule when a defendant enters a guilty plea that is later vacated on a collateral attack. United States v. Bond , 956 F.2d 628, 631 (6th Cir. 1992), holds that § 3161(e), which provides that the seventy-day period shall begin running from "the date the action occasioning retrial becomes final," applies in cases where the district court has vacated the conviction and sentence it previously imposed. Thus, § 3161(e) requires the STA clock to begin running on the "date that the district court vacated the ... guilty plea." Id. at 632.

Nonetheless, the district court found the rule difficult to apply in the present case, because the court vacating Defendant's conviction and sentence—the Ohio court—only had jurisdiction pursuant to Rule 20. Thus, "the date the action occasioning retrial becomes final" would be September 30, 2015, when the Ohio court granted Defendant's § 2255 motion. But, the district court determined that this could not be the start date for the STA because Rule 20 required the Ohio court to return the paperwork to the Kentucky court, and the Kentucky court did not regain jurisdiction over Defendant's case until December 23, 2015, the date on which the Rule 20 paperwork was returned. The district court analogized to situations where an appeals court vacates a guilty plea, and held that the...