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The First Circuit Vacates A Plea

Sometimes being a defense lawyer in federal court is a matter of playing for dropped balls. In some cases, if everything goes the way it looks like it should for the government, there’s not much chance of a good result. But, mistakes are often made. If the right mistakes happen, things can look different quickly.

877665_sport_balls_1.jpgThe appeal in the First Circuit’s recent opinion in United States v. Ortiz shows the importance of playing for a dropped ball.

A Night in May

According to a statement of facts that Mr. Ortiz signed, in May of 2007, he and his friends decided to try to steal a car. The car was occupied. The men in the car got out, and had a fistfight with Mr. Ortiz and his friends. When the fight was over, the men in the car got back in the car and tried to drive away.

One of Mr. Ortiz’s friends blocked the way of the car. People yelled. Mr. Ortiz shot into the car, killing the driver.

Mr. Ortiz was charged with four crimes: (1) conspiracy to commit carjacking; (2) car jacking; (3) use of a firearm in connection with a crime of violence; and (4) causing the death of a person through the use of a firearm. [FN1]

Mr. Ortiz Pleads Guilty

Mr. Ortiz worked out a plea to Count Three – use of a firearm in connection with a crime of violence under 18 U.S.C. 924(c). Because a gun was discharged, Count Three carries a mandatory minimum term of ten years.

As a part of the plea agreement, Mr. Ortiz and the government agreed that they would both ask for the ten year sentence be imposed. At the plea hearing, the judge told Mr. Ortiz that Count Three carried a mandatory minimum ten year sentence.

In his plea, Mr. Ortiz also waived his right to appeal.

A charge under 924(c) does not have a maximum penalty established by statute – rather, courts have construed it as having a maximum sentence of life. [FN2] This fact, however, was not mentioned in Mr. Ortiz’s plea agreement paperwork. It was also not addressed at his plea hearing – which violates Rule 11 of the Federal Rules of Criminal Procedure.

Mr. Ortiz Has a Presentence Report

Mr. Ortiz, like every other person who is convicted in federal court, was the subject of a presentence report. The presentence report accurately stated that the maximum penalty for his count of conviction was life in prison.

At his sentencing hearing, though, the district judge neglected to ask whether Mr. Ortiz had read the presentence report.

Mr. Ortiz is sentenced

Expecting to receive a sentence of ten years in prison, Mr. Ortiz was surprised when the court imposed a sentence of 30 years.

He was further surprised when one of his friends from the night of the shooting, beat two counts at trial and received a sentence of only 15 years.

Mr. Ortiz tried to withdraw his plea after he was sentenced because his sentence was three times the amount of he expected to receive. The district court denied the motion. Mr. Ortiz appealed.

The Appeal

The government argued that Mr. Ortiz could not bring an appeal, because he waived that right in his plea agreement. The government also argued that the original plea should stand.

The court of appeals, though, thought differently. It remanded, since Mr. Ortiz was not aware that by pleading guilty he could be sentenced to life in prison.

The court remanded, with instructions to vacate the conviction.

As an interesting postscript, the court noted that Mr. Ortiz, if re-convicted, could, of course, receive up to life in prison. Mr. Ortiz’s counsel presented, during the course of the appeal, a statement that Mr. Ortiz was aware of that risk, and wanted to proceed with the appeal anyway.

Here’s to hoping Mr. Ortiz doesn’t do worse on remand.

[FN1] The opinion describes these each as aiding and abetting charges to the substantive counts, then, bizarrely, in footnote one, takes the government to task for charging these as, e.g., a violation of “18 U.S.C. § 2119(3) and 2.” (emphasis in original). The footnote then continues “Because it is unclear what statutory provision “and 2″ refers to in each instance, we have omitted that language here.”

I hate to, in essence, say “duh” to a court of appeals, but, I think it’s pretty obvious that “and 2” refers to 18 U.S.C. § 2, the statutory provision that sets out aiding and abetting liability.

I’m no fan of defending the government, but this is an odd attack based on a blindingly obvious misunderstanding by the opinion’s author.

[FN2] This quirk leads to a delightfully paradoxical turn of phrase – the statutory maximum for a violation of 18 U.S.C. § 924(c) is not set by statute.