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A deficient Rule 11 plea colloquy, plain error imposition of a consecutive sentence and an upwards departure that lacked a reasoned explanation: United States v. Dawayne Brown, et al, _ F.3d _ (D.C. Circuit, No. 15-3056 (June 15, 2018).

Every time you are convinced you’re read it all, another one pops out of the hopper. Chief Judge Garland and Circuit Judges Kavanaugh and Millet’s’ eyeballs must have been bulging when they learned how the Government came across Dawayne (“Goon”) Brown and his associates in the PCP distribution trade. It turns out that one Louis Clifton walked into an MPD station and related what the per curiam decision describes as “an extraordinary story” that “[a]rmed men had taken over his apartment and were using the apartment to manufacture and sell PCP – all while Clifton continued to live there.” Mr. Clifton presented an account of enduring his unwelcome roommates, Mr. Brown and his friend, Keith Matthews, who were using his apartment for several weeks to make “dippers” of PCP-laced cigarettes and store the proceeds from selling dippers. The gendarmes then pounced and surprised Brown inside the apartment. They arrested him, seizing an Uzi, a .38-caliber revolver and PCP. (Slip Op. at 3-4).

An examination of Brown’s cell phone text messages led to Matthews’ arrest, at which point the police learned that the takeover of Clifton’s apartment was no isolated event. Brown, Matthews and several of their chums had created a PCP operation that they called “Little Mexico.” Little Mexico’s modus vivendi involved using Woodberry Village apartments to stash guns and sell PCP. (Slip Op. at 4-5).

Brown, Matthews and four others were indicted for narcotics conspiracy-related offenses. One, Ira Adona, pled guilty to the conspiracy charge. He was supposed to be sentenced separately in the Superior Court for a shooting offense and in the federal court for the PCP conspiracy.  (Two others pled guilty but didn’t appeal their sentences.)   Brown, Matthews and Marquette Boston stood trial and were duly convicted of drug and/or weapons charges. (Slip Op. at 5-6).

We need not tarry long over Brown and Boston’s appeals. Brown raised three issues, all claiming instructional errors. The court rejected each, pointing out that one faltered because Brown himself had urged the instruction. United States v. Ginyard, 215 F.3d 83, 88 (D.C. Cir. 2000), teaches that a defendant may not complain about invited error. (Slip Op. at 7-8). Mr. Boston largely focused on the sufficiency of the evidence, of which the panel found adequate to convict. For instance, the officers had to use a battering ram for roughly a minute to enter the apartment Boston was living after their knock and announcement, which a reasonable jury could have considered that to be evasiveness indicating constructive possession of the contraband found inside the apartment. (Slip Op. at 9) (citing United States v. Dorman, 860 F.3d 675, 680 (D.C. Cir. 2017)).

Adona – and as we shall see, Matthews – fared better. Adona prevailed notwithstanding his plea agreement’s waiver of appellate rights for any sentence that didn’t exceed the statutory maximum or the Guidelines range determined by the court. Typically, those provisions bar an appeal. (Slip Op. at 11) (citing and quoting United States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016)). Here, however, Adona pointed to ambiguities that permeated the Rule 11 colloquy, a permitted ground for appellate scrutiny under Hunt and decisions such as United States v. Kaufman, 791 F.3d 86, 88 (D.C. Cir. 2015) and United States v. Godoy, 706 F.3d 493, 495 (D.C. Cir. 2013). (Slip Op. at 11-12).

The panel assessed whether ‘the district court mischaracterized the meaning of the waiver in a fundamental way’” and found that the district court’s oral pronouncement had “‘mischaracterized the meaning of the waiver in a fundamental way’” by suggesting to Adona that he could appeal a sentence he thought unreasonable. (Slip Op. at 12-14) (citing Hunt, 843 F.3d at 1028-29; Kaufman, 791 F.3d at 88; and United States v. Fareri, 712 F.3d 593, 594-95 (D.C. Cir. 2013)).“ In assessing the adequacy of plea colloquies,” the panel explained, “ we do not assume familiarity with criminal-law argot. Rather, we ask how a defendant like Adona (who left school after completing eleventh grade . . .) would understand the district court’s pronouncement.”  (Slip Op. at 13-14) (citing Godoy, 706 F.3d at 495).

The Government pointed to statements Adona’s counsel made at the colloquy and insisted that the lawyer’s remarks had cured any ambiguity about Adona’s understanding of his appellate rights. The Court rejected that theory: “Adona’s counsel merely told him that he retained the right to appeal an above-Guidelines sentence, without suggesting that was the only category of sentence he could appeal. Indeed, that was not the only category of sentence he could appeal, even under the written plea agreement – which permitted him also to appeal a sentence ‘above the statutory maximum’.” (Slip Op. at 14-15) (emphasis original). The panel tartly added that the government had none nothing to clarify or correct the record – “despite our recent admonition that ‘the United States Attorney’s Office would be well advised to develop instructions and training for its attorneys to make it part of their routine practice to help ensure that district courts fulfill each of the requirements of Rule 11 . . . when a defendant enters a plea.’” (Slip Op. at 15) (quoting United States v. Shemirani, 802 F.3d 1, 3 (D.C. Cir. 2015)).

Turning to the merits of Adona’s appeal, the panel addressed the district judge’s sentencing Adona to a 108-month term – at the top of the Guidelines range – to be served consecutively to the sentence imposed in the Superior Court. Although courts have discretion under 18 U.S.C. § 3584(a), to sentence defendants convicted of multiple crimes concurrently or consecutively, a provision that the so-called “advisory” Guidelines seeks to check. In particular, U.S.S.G. § 5G1.3 “‘operates to mitigate the possibility that the fortuity of two separate prosecutions will grossly increase a defendant’s sentence. . .  .’” (Slip Op. at 19-20) (quoting Witte v. United States, 515 U.S. 389, 405 (1995)).

Here, Adona had received a 29-month sentence in the Superior Court and his counsel urged against excessive punishment, by noting that Adona’s Relevant Conduct calculations for the federal sentence factored in his offense conduct underlying the local court under the “Use of Violence” enhancement. Because Gall v. United States, 552 U.S. 38, 49 (2007); holds that “a court must nonetheless ‘begin all sentencing proceedings by correctly calculating the applicable Guidelines range,’” the district court committed plain error by failing to acknowledge that the Guidelines recommended a concurrent sentence. (Slip Op. at 20-21).

The Government, unwilling to take that result graciously, strenuously contented that Adona could not show that the trial judge would have imposed a concurrent sentence. The court replied that “a defendant need not show that a sentence would have issued differently but for the district court’s plain error. He need demonstrate only a “reasonable likelihood that the sentencing court’s obvious errors affected his sentence.” (Slip Op. at 21-22) (citing United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994)) (emphasis original). And here, given various and equivocal comments the district judge had made prior to Adona’s sentencing, the panel found the prosecution’s claim to be overstated. Vacating the sentence, the panel directed that on remand, the district court must consider – but is not bound by – the guidance of § 5G1.3(b). (Slip Op. at 22).

Matthews, thanks to fancy footwork by trial counsel, fended off all but one of charge in a 22-count indictment, namely, unlawful possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).   fought Miller tooth-and-nail.  Although the district court and the Probation Office agreed that the relevant Guidelines range was 78 to 97 months, and despite the Probation Office’s determination that nothing warranted an upward variance in Matthews’ case, the district court sentenced Matthews to 108 months of imprisonment. That was a 38% increase above the lower portion of the range and an 11% increase above the very top of the range. The panel found that the district court properly calculated Matthews’ Guidelines range, but it failed to explain adequately its variance from that range. (Slip Op. at 24).

First, the Court of Appeals found that settled circuit precedent barred Matthews’ spirited claim that a prior conviction for attempted assault with a dangerous weapon did not qualify as a “crime of violence” under the felon-in-possession Guidelines such that his base offense level should have been four points lower and his sentencing range reduced significantly.(Slip Op. at 25-29) (citing, inter alia, James v. United States, 550 U.S. 192, 198 (2007) (“the ‘attempted use’ language of the Armed Career Criminal Act’s similarly worded elements clause demonstrated ‘Congress’ inclusion of attempt offenses’”).

On the other hand, Matthews gained traction with his challenge to the District Court’s inadequate justification for the upwards variance. As the Court of Appeals stated: “Thrice before, this court has held that an inadequately explained and insufficiently particularized upward variance constitutes plain error. See, e.g., United States v. Brown, 808 F.3d 865, 867, 872 (D.C. Cir. 2015); United States v. Akhigbe, 642 F.3d 1078, 1086 (D.C. Cir. 2011); In re Sealed Case, 527 F.3d at 191-192. Today marks the fourth time.”

To impose an upward variance, under Circuit precedent “the district court must undertake an individualized assessment of the defendant’s particular offense and characteristics, and then ‘must state the specific reason why the defendant’s conduct was more harmful or egregious than the typical case represented by th[e] [relevant Sentencing Guidelines] range.’” (Slip Op. at 31) (quoting Brown, 808 F.3d at 867). Not only must the sentencing court state such reasons “‘with specificity’” under 18 U.S.C. § 3553(c),” it “must provide an explanation ‘sufficiently compelling to support the degree of the variance.’” (Slip Op. at 31) (quoting Gall, 552 U.S. at 50). Here, the trial judge’s failure to explain its decision where enhancements almost doubled the applicable sentencing range (from 51-63 months to 97-121 months before the Acceptance credit) was found to be plain error. (Slip Op. at 31-33). In sun, the district court’s decision was found “devoid of the ‘individualized reasoning’ necessary to understand why the court felt an upward variance “was appropriate for this particular defendant” in a way that it would not be for others to whom the same drug and firearms enhancements are applied.” (Slip Op. at 34) (quoting Akhigbe, 642 F.3d at 1086). “[A]t no point did the district court’s sentencing colloquy offer the specific reason or reasons ‘why [it] found [Matthews’] conduct more harmful or egregious than the typical case accounted for in the properly calculated Guidelines range.’” (Slip Op. at 35) (quoting Brown, 808 F.3d at 871).

Circuit Judge Millett concurred. In so doing, she observed how the government’s indictment had collapsed like a house of cards and yet Mr. Matthews found himself sentenced using acquitted conduct.  She again expressed her “exclamation on a point [that she has] previously expressed: the constitutionally troubling use of acquitted conduct as the specific basis for increasing a defendant’s prison sentence above the Sentencing Guidelines range.” Citing her and Judge Kavanaugh’s concurrence in the denial of rehearing en banc in United States v. Bell, 808 F.3d 926, 929–930 (D.C. Cir. 2015), she stated in no uncertain terms that “‘In a constitutional system that relies upon the jury as the great bulwark of our civil and political liberties,’ allowing courts at sentencing ‘to materially increase the length of imprisonment’ based on conduct for which the jury acquitted the defendant guts the role of the jury in preserving individual liberty and preventing oppression by the government.” (Slip Op. at 1-4) (Millett, J., concurring).

Circuit Judge Kavanaugh dissented in part, stating that he would dismiss Adona’s appeal based on the appeal waiver in his plea agreement and would affirm Matthews’ sentence as procedurally and substantively reasonable

Barbara Kittay (Adona) and Jonathan Zucker/Patricia Daus (Matthews) are no strangers to these pages and deserve kudos for excellent results once again for their respective clients.

  • Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit. (Full disclosure: having previously secured three of the necessary four votes for certiorari over the application of acquitted conduct in sentencing, the author shares Judge Millett’s concern.)