Criminal Practice – Sentencing – Consecutive Sentences – Plea Agreement Violation

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U.S. v. Lewis. (Lawyers Weekly No. 11-01-0142, 15 pp.) (King, J.) No. 09-4467, Feb. 2, 2011; USDC at New Bern (Flanagan, Ch.J.) 4th Cir. Click here for the full text of the opinion.

Holding: The 4th Circuit vacates a defendant’s 46-month sentence for witness tampering because the order that the sentence be served consecutively to, and not concurrently with, defendant’s current sentence, violated the plea agreement between defendant and the government.

The agreement stated that the sentence at issue “shall be served concurrent with the state sentence” defendant was currently serving in North Carolina, and that the “memorandum of plea agreement” constitutes the parties’ entire agreement.

At the Rule 11 plea hearing, the judge informed defendant the court was not bound by any recommendation in the plea agreement, and the court “conditionally approved” the agreement. There was no specific discussion of the concurrent sentence provision.

At the sentencing hearing, the court stated it was imposing a consecutive sentence, over defendant’s objection. The court did not expressly either accept or reject the plea agreement, and it did not address whether defendant should have the chance to withdraw his guilty plea.

Five months later, defense counsel filed an Anders brief, but defendant filed a pro se supplemental submission challenge the consecutive sentence.

Under the circumstances, defendant sufficiently preserved his appellate contention, and it is properly reviewed for harmless – rather than plain – error.

If a court accepts a guilty plea, and thereafter decides to reject the underlying plea agreement that contains provisions of the type specified in Rule 11(c)(1)(A) or (C), it must, on the record, comply with Rule 11(c)(5). That is, the court must 1) advise the parties that it is rejecting the plea agreement, 2) afford defendant an opportunity to withdraw his guilty plea, and 3) advise the defendant that, if his plea is not withdrawn, he may be sentenced more severely than contemplated by the plea agreement.

Here, the concurrent sentence provision is drawn in mandatory and plain terms. In rejecting the concurrent sentence provision, the district court was obliged to afford defendant a chance to withdraw his guilty plea, and it erroneously failed to do so. It is surprising that the prosecutor failed to correct the court’s misunderstanding of the concurrent sentence provision. The government had an affirmative duty to fulfill its obligations under the plea agreement.

The government’s contention that the parties actually intended and understood the concurrent sentence provision to be a mere recommendation is – put mildly – nearly frivolous. Such an understanding runs counter to the plain and express terms of the plea agreement.

Defendant did not secure the benefit to which he was entitled under the concurrent sentence provision – a sentence that ran concurrently with his state sentence – and the error affected his substantial rights.

Judgment vacated and case remanded for further proceedings.