Wednesday, February 23, 2011

District Court Must Allow Defendant to Withdraw Plea When It Overrides Mandatory Provision

US v. Lewis: Lewis entered into an agreement with the Government to plead guilty to one count of witness tampering (another of those counts and a felon in possession charge would be dropped). Part of the plea agreement stated that the "parties agree that this sentence of imprisonment shall be served concurrent with the state sentence [Lewis] is currently serving . . .." At the plea hearing, the district court explained that it was not bound by any "recommendations" in the plea agreement and that Lewis might be sentenced more severely than the agreement contemplated. Although the district court explained that some agreements could be withdrawn from if the district court did not accept it, this was not one of those agreements. At sentencing, the district court imposed a sentence of 46 months, to be served consecutively to the undercharged state sentence "over the defendant's objection."

On appeal, Lewis argued (first in a pro se brief filed as part of the Anders process and then by subsequent counsel) that the plea agreement with regards to the concurrent/consecutive sentence issue had been breached. The Fourth Circuit agreed. The primary issue, the court said, was whether the plea agreement provision about the concurrent/consecutive sentencing issue made the plea a "binding" one under Rule 11(c)(1)(C). If so, then Lewis should have been allowed to withdraw the plea if the district court would not accept it. If not, Lewis was stuck. The court "readily rejected" the Government's argument (which it also called "nearly frivolous") that the agreement was not meant to be an 11(c)(1)(C) agreement, noting that the concurrent/consecutive sentence provision was phrased in mandatory terms, where other provisions were not. Furthermore, the district court's "conditional approval" at the plea hearing strongly suggested it was that type of plea. Therefore, when the district court did finally reject the agreement, by sentencing Lewis to a consecutive term, it erred by not allowing him to withdraw from the agreement. Because the error was not harmless, the court vacated Lewis's sentence and remanded the case for further proceedings.

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