USA v. Littlejohn

• Decision Date: 07 August 2000
• Docket Number: No. 99-50417,99-50417
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JEFFREY LITTLEJOHN, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 960

224 F.3d 960 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JEFFREY LITTLEJOHN, Defendant-Appellant.

No. 99-50417

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted August 7, 2000--Pasadena, California

Filed September 11, 2000

[Copyrighted Material Omitted]

COUNSEL: Gretchen Fusilier, Carlsbad, California, for the defendant-appellant.

Jerome H. Friedberg, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California D.C. No. CR-98-00947-WDK-01 William D. Keller, District Judge, Presiding

Before: John T. Noonan, Stephen S. Trott, and Marsha S. Berzon, Circuit Judges.

OPINION

TROTT, Circuit Judge:

Appellant Jeffrey Littlejohn appeals his conviction and sentence for distribution of cocaine base in violation of 21 U.S.C. S 841(a)(1). Littlejohn pled guilty pursuant to a plea agreement with the government, under which twelve counts of a thirteen-count indictment were dismissed in exchange for the plea. Littlejohn argues that both his acceptance of the plea agreement and his actual plea were involuntary. He also contends that the district court failed sufficiently to state on the record the reasons for choosing the sentence it imposed. We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742. Although we conclude that the district court was required to warn Littlejohn that by pleading guilty he would suffer ineligibility for certain food stamp and social security benefits under 21 U.S.C. S 862a, we AFFIRM Littlejohn's conviction and DISMISS his appeal from the sentence imposed by the district court. We note that the importance of this case is that we identify a new consequence of certain convictions that must be included in the information imparted to a defendant pleading guilty to specified felony offenses in order to render that plea knowing and voluntary.

BACKGROUND

Littlejohn entered into a favorable plea agreement that allowed him to plead guilty to one count of cocaine base distribution in exchange for, among other things, the government's agreement to stipulate to, and recommend, that Littlejohn receive a 240-month sentence instead of the possibility of life in prison. In addition, the plea agreement provided for a mutual waiver of appeal as to the sentence imposed. In his waiver, Littlejohn specifically"[gave] up the right to appeal any sentence imposed, and the manner in which the sentence is determined, provided that[he] is sentenced within the statutory maximum and his term of imprisonment is 240 months or less."

Littlejohn signed a statement indicating that he voluntarily agreed to the terms of the plea agreement and that his attorney had advised him "of the consequences of entering into this agreement." Littlejohn's attorney also signed a statement providing that she had "fully advised [Littlejohn ] of his rights, of possible defenses, of the statutory minimum sentence and the Sentencing Guideline provisions, and of the consequences of entering into this agreement. To my knowledge, my client's decision to enter into this agreement is an informed and voluntary one."

At his plea hearing, Littlejohn informed the court that he was pleading freely and voluntarily, a statement confirmed by his own attorney. The court advised Littlejohn of all matters required by Federal Rule of Criminal Procedure ("Fed. R. Crim. P.") 11(c) ("Rule 11(c)"),¹ the provision governing the advice a district court must give to a defendant pleading guilty. The court established a factual basis for the plea and entered a finding that Littlejohn pled guilty voluntarily and "with a full understanding of the nature of the charge and the consequences of the plea."

Littlejohn's Pre-Sentencing Report ("PSR") included a section on the "Denial of Federal Benefits," an issue discussed neither in the plea agreement nor at Littlejohn's plea hearing. The PSR stated that, under United States Sentencing Guideline ("U.S.S.G.") section 5F1.6, the court "may deny eligibility for certain Federal benefits of any individual convicted of distribution or possession of a controlled substance," and that, "[p]ursuant to 21 U.S.C. S 862(a)(1)(C), upon a third or subsequent conviction for distribution of a controlled substance, the defendant shall be permanently ineligible" for such benefits, unless ineligibility is suspended by the court under 21 U.S.C. S 862(c). Elsewhere, the PSR listed Littlejohn's three prior California convictions for "possession of a controlled substance for sale," and two prior California convictions for "possession of a controlled substance."

At sentencing, the district court noted that "[t]here is a recommendation in here [that] the defendant, having sustained a third conviction for distribution of a controlled substance, is permanently ineligible for all federal benefits as defined at 21 U.S.C. 862(d) until such time as the Court may suspend the ineligibility." However, the court and both parties expressed uncertainty about the issue of federal benefit ineligibility, and the court stated that it was reluctant to impose the ineligibility. Ultimately, the court concluded that it did not have to include the ineligibility in the judgment and commitment order, and refused to do so. The court closed its discussion of the issue by stating that "[i]f I had the discretion -we haven't fully plumbed this issue -I would suspend the ineligibility because I think it's counterproductive to rehabilitation." Littlejohn made no attempt to argue before the district court that the failure to mention federal benefit ineligibility at the time of the plea hearing or in the text of the plea agreement affected the voluntariness of either his entrance into the plea agreement or his eventual guilty plea.

The district court sentenced Littlejohn to 240 months of imprisonment -in accord with the parties' agreement -but gave little explanation of its sentencing decision. After confirming that 240 months was the amount of time settled upon by the parties, the court stated "I am agreeable. Is there anything else that needs to be said?" Littlejohn's attorney made no indication at that time that she considered the district court's statement inadequate in terms of 18 U.S.C.S 3553(c), which requires district courts to "state in open court" the reasons for imposing a sentence at a particular point within the applicable guidelines range. Later, the court said that "[p]ursuant to 18 U.S.C. S 3553(c)(1) I have stated why I've selected the point. I think it's more than sufficient to address the crimes at issue -crime at issue."

DISCUSSION

The voluntariness of Littlejohn's guilty plea is reviewed de novo. United States v. Kikuyama, 109 F.3d 536, 537 (9th Cir. 1997). The validity of Littlejohn's waiver of the right to appeal is reviewed de novo. United States v. Aguilar-Muniz, 156 F.3d 974, 976 (9th Cir. 1998). Whether the trial court's colloquy with Littlejohn satisfied the requirements of Rule 11 of the Federal Rules of Criminal Procedure is reviewed de novo. United States v. Crawford, 169 F.3d 590, 592 (9th Cir. 1999). On appeal, Littlejohn argues that his lack of warning concerning ineligibility for federal benefits rendered involuntary his entrance into the plea agreement, the waiver of appeal included therein, and his eventual guilty plea. This question appears to be one of first impression in this circuit. He also argues that the court failed to satisfy the mandate of 18 U.S.C. S 3553(c) in its selection of a 240-month sentence. He seeks a remand for re-pleading or, in the alternative, re-sentencing. The government responds by asserting that this court should review Littlejohn's claims, at most, under a plain error review, that the district court was not required to warn Littlejohn of ineligibility for federal benefits, that any error was harmless under Fed. R. Crim. P. 11(h), and that Littlejohn waived any appeal of his sentence by entering into the plea agreement.²

Whether Littlejohn's failure to raise the issue of noncompliance with Rule 11 at the district court level could be characterized as a "waiver" or a "forfeiture " is unimportant, because in United States v. Odedo, 154 F.3d 937 (9th Cir. 1998), we concluded that the "harmless error" standard of Rule 11(h) "applies to all Rule 11 errors, regardless of whether they were ever raised before the district court." Id. at 940. Here, we ultimately conclude that the district court committed only harmless error in Littlejohn's case because the error did not have any effect on his "substantial rights." Furthermore, we dismiss and refuse to consider Littlejohn's challenge to the district court's alleged noncompliance with 18 U.S.C. S 3553(c) at sentencing because he waived his right to appeal this issue.

A. Rule 11 and Direct and Collateral Consequences

The district court complied with the literal mandates of Rule 11(c) in advising Littlejohn. Prior to a 1974 amendment of Rule 11(c), the rule required district courts to determine that a defendant understood "the nature of the charge and the consequences of the plea." Fed. R. Crim. P. 11 (Advisory Committee notes to 1974 Amendment). Following the amendment, which became effective in 1975, Rule 11(c) provided district courts an explicit list of issues that defendants must be advised of prior to pleading guilty. Notwithstanding this amendment of the rule, district courts in this circuit still must inform defendants pleading guilty of the direct consequences of their plea and resulting conviction, in addition to the warnings required by the explicit language of Rule 11(c). See, e.g., United States v. Wills, 881 F.2d 823, 825 (9th Cir. 1989); United States v. King, 618 F.2d 550, 552 (9th Cir. 1980). The due process requirement of a voluntary guilty plea demands as much. See Wills, 881 F.2d at 825; see also Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988) ("A plea of guilty is...