United States v. Lloyd
Opinion
In August 2015, defendant-appellant Patrick Lloyd pleaded guilty to two charges set forth in a third superseding indictment. These were: (1) conspiracy to possess with intent to distribute controlled substances, in violation of
On appeal, Lloyd raises several arguments for vacating his firearm conviction. Most significantly, he maintains that the District Court failed to satisfy two signal requirements of Federal Rule of Criminal Procedure 11 : that a district court judge accepting a plea personally inform the defendant of (among other matters) the "nature of each charge" as to which the defendant is pleading guilty, Fed. R. Crim. P. 11(b)(1)(G) ; and that, before entering judgment on a guilty plea, the court determine "that there is a factual basis for the plea," Fed. R. Crim. P. 11(b)(3).
Lloyd further challenges his firearm possession conviction on grounds related to the Pinkerton theory of liability relied on by the government. Finally, he asserts that he received ineffective assistance of counsel in the proceedings leading up to his plea.
Because Lloyd's written plea agreement contains an appeal waiver, we begin by addressing the Rule 11 arguments, for if he is unable to sustain them, the waiver will bar his substantive arguments. Lloyd raised neither of his Rule 11 arguments in the District Court, so we review the District Court's actions for plain error.
We conclude that, when the District Court accepted Lloyd's plea, it erred by failing to "inform [him] of, and determine that [he] underst[ood] ... the nature of each charge to which [he] [was] pleading." Fed. R. Crim. P. 11(b)(1)(G). During the change-of-plea hearing, the court did not articulate the elements of the crime to which Lloyd was pleading guilty, ask the government to do so, or have Lloyd state in his own words the factual conduct underlying his convictions such that the court could be certain and the record would reflect that Lloyd understood "the nature of each charge." This is a significant failure. We nevertheless reject Lloyd's challenge because he has pointed to nothing in the record suggesting that, had the District Court satisfied this element of Rule 11, he would not have pleaded guilty to the firearm charge.
See
United States v. Torrellas
,
Lloyd's second Rule 11 argument rests on subsection (b)(3) of the Rule, which mandates that district courts "determine that there is a factual basis for the plea" and that they do so not necessarily at the plea colloquy, but at latest "[ b ] efore entering judgment on a guilty plea." Fed. R. Crim. P. 11(b)(3) (emphasis added.) In his change-of-plea hearing before the District Court, Lloyd acknowledged the accuracy of the facts as set forth in his written plea agreement. Lloyd's presentence report also set out relevant facts, and the District Court adopted that report at sentencing. Together, these made clear to the District Court before it entered judgment that the plea was supported by a sufficient factual basis. We therefore also reject Lloyd's second Rule-11-based challenge to his guilty plea.
Having concluded that Lloyd's challenges to his guilty plea do not succeed, we dismiss the appeal as to Lloyd's two substantive arguments regarding his criminal liability for firearms possession under the theory endorsed in Pinkerton . Both are barred by his appeal waiver. Finally, we adhere to our ordinary practice of declining on direct appeal to consider a claim of ineffective assistance of counsel, and leave Lloyd to pursue his claim through habeas corpus proceedings, where the relevant facts may be more fully developed.
We therefore AFFIRM the District Court's judgment of conviction, and DISMISS the appeal in remaining part.
*116 BACKGROUND
On April 23, 2014, a grand jury in the Northern District of New York returned a third superseding indictment ("Indictment") against defendant-appellant Patrick Lloyd and five codefendants. 1 The Indictment alleged that, from some time in 2012 through September 2013, Lloyd and his codefendants conspired to distribute controlled substances in St. Lawrence, Franklin, and Clinton Counties, New York.
The Indictment charged Lloyd with two crimes: (1) conspiracy to possess with intent to distribute and to distribute controlled substances, in violation of
In August 2015, on the eve of trial, Lloyd reached an agreement with the government to plead guilty, and on August 6 of that year, the District Court conducted Lloyd's change-of-plea hearing. Because the primary issue on appeal relates to the way the court conducted that hearing, we describe it in some detail.
The District Court opened the hearing by confirming with defense counsel that Lloyd intended to change his earlier plea of not guilty "and enter a plea of guilty to Counts [1] and [2] of the [Indictment], charging him with conspiracy to possess with the intent to distribute and the distribution of controlled substances and the possession of a firearm in furtherance of a drug trafficking crime, all in violation of federal law, all pursuant to the terms of a plea agreement." Appellant's App. ("AA") 43. Proceeding under oath, Lloyd answered "yes" to the court's questions whether he had had a chance to read the written plea agreement and discuss it with counsel, and whether counsel "[w]as ... able to explain those things ... in a way so that [he felt he] underst[oo]d the terms and conditions of that plea agreement." Id. at 45. The court then informed Lloyd that it would "incorporate the plea agreement into the record of these proceedings since [Lloyd had] read it and [he] underst[oo]d it and [he had] discussed it with counsel." Id.
The court next addressed the constitutional rights that Lloyd would relinquish by pleading guilty. See generally Fed. R. Crim. P. 11(b)(1). The District Court listed aloud the following rights as being subject to Lloyd's waiver: the right to a jury trial; to refrain from incriminating himself; to maintain his earlier plea of not guilty; to testify at trial, if he wished; to compel the appearance of witnesses; and to be proved guilty, if at all, beyond a reasonable doubt. The court then advised Lloyd of the maximum and minimum terms of imprisonment and supervised release, as well as the maximum possible fine, for each count of conviction, and informed Lloyd that he faced a $100 special assessment on each count. The District Court confirmed with Lloyd that Lloyd was a United States citizen and told him that, as a consequence of his conviction, he would lose the right to vote and to carry firearms. Lloyd responded in *117 the affirmative when asked if he understood these effects of a conviction.
Next, the District Court explained the terms of Lloyd's appeal and collateral attack waiver: Lloyd's waiver provided that he would give up his rights to "challenge the convictions resulting from [the] plea, ... challenge any sentence of imprisonment of life or less, ... challenge any fine within that permitted by law, [or] challenge any term of supervised release permitted by law." AA 52. Lloyd again declared that he understood, and the District Court confirmed with Lloyd that nobody had threatened Lloyd, pressured him to plead guilty, or promised him any benefit not identified in the plea agreement. See generally Fed. R. Crim. P. 11(b)(2).
The District Court then "turn[ed] to the last area": determining whether "there are facts that would demonstrate ... that [Lloyd] committed the two crimes [he was] pleading guilty to." AA 55-56. On this point, the court and Lloyd engaged in the following exchange:
THE COURT: ... Now, here is what I always do: When a plea agreement is filed, I sit down and read the facts that are contained in it, so I get a copy of this in advance. Even though you didn't execute the final one until you appeared here in court, I have seen a copy, I read those facts and the facts in the plea agreement will support your plea if they're true. I know you signed the agreement saying they're true, but I like to make doubly certain: Are the facts contained in this plea agreement true?
THE DEFENDANT: Yes.
THE COURT: Then you are admitting them to me?
THE DEFENDANT: Yes.
THE COURT: Then as to the two counts in the indictment, the drug count and the gun count, how do you plead, guilty or not guilty?
THE DEFENDANT: Guilty.
Id. at 56. The District Court accepted Lloyd's guilty plea, set a sentencing date, and adjourned court.
Thirteen months later, the court sentenced Lloyd principally to 20 years' imprisonment on Count 1 (the drug count), and 5 years' imprisonment on Count 2 (the firearm count), the statutory minimum on each count. Because the court was required to impose these terms of incarceration as consecutive sentences, Lloyd's 25-year sentence reflected the mandatory minimum term of his imprisonment. Judgment entered on September 8, 2016, and Lloyd, acting pro se , filed a notice of appeal dated the following day. He is counseled on appeal.
DISCUSSION
Lloyd argues that we must vacate his conviction for possessing a firearm in furtherance of a drug trafficking crime. 2 He urges several grounds for vacatur: (1) that Pinkerton liability for firearm possession constitutes an impermissible, judicially created "common-law crime[ ]," Appellant's Br. 15; (2) that Pinkerton liability is an element of a criminal offense and therefore the government's failure to charge it in the indictment renders his conviction on this count invalid; (3) that, for two distinct reasons, the District Court's plea colloquy *118 did not comport with Federal Rule of Criminal Procedure 11, rendering his plea involuntary and not knowing; and (4) that, in the District Court proceedings, he received ineffective assistance of counsel. For its part, the government urges us to conclude primarily that the appeal waiver contained in Lloyd's plea agreement is enforceable and bars Lloyd's Pinkerton and Rule 11 arguments; furthermore, it contends, all of Lloyd's challenges fail on the merits. 3
An appeal waiver included in a plea agreement does not bar challenges to the process leading to the plea. Challenges that typically survive appeal waivers include those asserting that the district court failed to comply with the important strictures of Rule 11, which governs entry of guilty pleas.
See
United States v. Adams
,
I. Rule 11
As courts have long emphasized, "[a] guilty plea is no mere formality, but a 'grave and solemn act.' "
United States v. Arteca
,
A district court's Rule 11 obligations, then, while seemingly routine, and
*119
comprised of exchanges that may appear rote, should not be casually discharged: they are a serious matter. Close and regular adherence to the Rule's demands bears heavily on the legitimacy of the plea-bargaining system as a whole, a system that in recent times has come to resolve the prosecutions of the vast majority of federal defendants.
See
Missouri v. Frye
,
For this reason, even when on plain error review we have affirmed judgments of conviction presenting Rule 11 issues, we have noted with increasing concern the tendency of some courts within our Circuit to stray from rigorous compliance with the Rule, and even to adopt practices at odds with the Rule's explicit directives.
See
Pattee
,
As noted above, Lloyd asserts that the District Court failed to comply with Rule 11(b)(1)(G) and Rule 11(b)(3), and that its failures warrant vacatur of his conviction on the firearm count. Rule 11(b)(1)(G) calls for the district court to inform the defendant of and ensure "that the defendant understands ... the nature of each charge to which the defendant is pleading." Fed. R. Crim. P. 11(b)(1)(G) (emphasis added). Rule 11(b)(3) focuses on the court's own careful determination, before entering judgment on a guilty plea, "that there is a factual basis for the plea." Fed. R. Crim. P. 11(b)(3).
Lloyd did not identify either of these claimed errors in the District Court at any time. Had he (or the government) done so, of course, the District Court could have rectified the error at the time. Absent that timely objection, we review the District Court's actions for plain error only, as we mentioned above.
See
United States v. Torrellas
,
To satisfy the plain error standard, Lloyd must demonstrate that "(1) there was error, (2) the error was plain, and (3) the error prejudicially affected his substantial rights"; if such error is demonstrated, we will reverse, still, only when (4) "the error seriously affected the fairness, integrity or public reputation of judicial proceedings."
A. Rule 11(b)(1)(G) : Lloyd's understanding of the nature of the charged offense
With respect to the District Court's Rule 11(b)(1)(G) obligation to ensure that Lloyd understood "the nature of each charge," we begin by addressing the first prong of the plain error standard. We conclude that the court committed error (although, as discussed further below, we need not decide whether this error was "plain" under the second prong). Importantly, Rule 11(b)(1) requires that the court "address the defendant personally in open court." During that address, " the court must inform " a defendant of the matters listed in Rule 11(b)(1) before it accepts a guilty plea. The Rule's text forecloses the possibility that the court may satisfy its Rule 11 obligation to "inform" the defendant of those matters and to ensure that the defendant understands them merely by making a general mention of information set forth in a written plea agreement. Nor is it consistent with the Rule for the District Court to have "generally referenced the charges during the change of plea hearing," as the government suggests here. Appellee's Br. 32-33.
Our decision in
United States v. Blackwell
,
Despite the detail of the
Blackwell
colloquy-a colloquy that was, in relevant part, significantly more extensive than that conducted by the District Court in this case-we concluded that the court did not satisfy its Rule 11 obligation to "inform the defendant of, and determine that the defendant understands, the nature of the charge to which the plea is offered."
See
Acknowledging, still, that courts are "not required to follow any particular formula" in satisfying their obligation, we explained that the district court in
Blackwell
had fallen short of its Rule 11 obligation because it: (1) "never asked [the defendant] whether he understood the nature of
*121
the offense to which he was entering a guilty plea"; (2) "did not itself explain the elements of the conspiracy to [the defendant], nor did it read the indictment to him"; and (3) "did not ask the defendant to describe his participation in the offense,"
So too here. The District Court did not explain to Lloyd the elements of the crimes to which he was pleading guilty and failed entirely to ask Lloyd to describe his "participation in the offense,"
Reading the elements of a crime to a defendant "is not a difficult task,"
Pattee
,
Although we conclude that the court erred, Lloyd's application for vacatur does not succeed because he has not shown "a reasonable probability that, but for the error, he would not have entered the plea."
Torrellas
,
Lloyd fails to demonstrate that, had the District Court articulated each element of the offense to which he pleaded guilty, he would not have entered the plea. Although Lloyd presents a colorable argument that he might have been confused about the complexities of the
Pinkerton
-based firearms charge, in which he bears criminal liability for his codefendant's firearms possession, he has been unable to identify any aspect of the record suggesting that, had the District Court explicitly reviewed the elements of that liability with him at his change-of-plea hearing, he would not have entered a plea of guilty to that count. We therefore reject Lloyd's argument that his conviction should be vacated as a result of the District Court's failure to comply with Rule 11(b)(1)(G) ;
cf.
Gonzales
,
One final point: Although it took a different position in its brief, at oral argument on appeal the government repeatedly-and prudently-stopped short of characterizing the plea colloquy as satisfying Rule 11(b)(1)(G). While we appreciate the government's candor, its change of position raises its own set of concerns. In
Pattee
, we recently reminded litigants that "[ Rule 11 ] failures are not attributable solely to judges": "Prosecutors and defense attorneys also have an obligation to make sure that the Rule is followed."
B. Rule 11(b)(3) : Determining the factual basis for the plea
We next consider Lloyd's claim that the District Court did not comply with Rule 11(b)(3) -which requires the court to determine whether there is an adequate factual basis for the plea-and that this failure, too, requires vacatur of his conviction.
To be sure, and as described, the plea colloquy in this case was no paragon, and in recent years, we have expressed our disappointment with practices of the sort used here in this critical colloquy.
See
United States v. Coffin
,
On this record, however, we conclude that the District Court did not plainly err in entering judgment on Lloyd's guilty plea. Unlike Rule 11(b)(1), which requires that the court advise a defendant of certain matters during a change-of-plea hearing in open court, Rule 11(b)(3) imposes on a district court an obligation that it must satisfy merely "
[b]efore entering judgment
on a guilty plea," without any mention of a requirement that the court make its finding on the record. Under Rule 11(b)(3), the District Court had "to assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty."
Pattee
,
In sum, we reject Lloyd's contention that the District Court committed Rule 11 errors that warrant vacatur of his conviction.
II. Remaining matters: Pinkerton and ineffective assistance of counsel arguments
In addition to his Rule 11 arguments, Lloyd asks us to overrule Pinkerton and urges, in the alternative, that, to support a conviction, Pinkerton liability must be specifically charged in the indictment. He also asserts that his convictions should be vacated because his counsel was constitutionally ineffective with respect to his entry of a guilty plea.
Lloyd's
Pinkerton
arguments are barred by the appeal waiver that he agreed to in his plea agreement. The District Court explained that waiver during the change-of-plea hearing; Lloyd also affirmed under oath that he had read and discussed the plea agreement with counsel.
See
Sanford v. United States
,
Lloyd's guilty plea would be invalid and his appeal waiver unenforceable if he prevailed on his claim that he received constitutionally ineffective assistance of counsel during his plea proceedings.
See
Lee v. United States
, --- U.S. ----,
*125
United States v. DeLaura
,
Here, the record is devoid of testimony or other evidence from Lloyd's prior counsel or otherwise regarding the representation provided Lloyd in the interactions leading up to Lloyd's entry of the guilty plea and subsequent sentencing. We accordingly adhere to our "usual practice" and decline on this appeal to consider Lloyd's ineffective assistance claim. Lloyd is free to pursue that claim in a collateral proceeding. 12
CONCLUSION
For the reasons set forth above, the District Court's judgment is AFFIRMED , except that as to Lloyd's Pinkerton arguments, the appeal is DISMISSED .
When we heard argument in this case, Lloyd's appeal was consolidated with that of one codefendant, Michael Spencer. Shortly after argument, however, we severed the appeals. See Order, Case No. 16-3169, Doc. No. 108.
Lloyd's brief appears not to challenge his conviction on the drug count, and thus our discussion in this opinion focuses on the firearm count. Regardless, any Rule 11 or ineffective assistance claims tied to the drug count would fail for the same reasons-set forth in the remainder of this opinion-as they do with respect to the firearm count. (Because the government pursued a Pinkerton theory of liability for the firearm count only, no Pinkerton argument was available with respect to the drug count.)
The appeal and collateral attack waivers contained in Lloyd's written plea agreement explicitly exclude ineffective assistance claims.
In a recent summary order, we rejected out-of-hand the very waiver argument that the government advances here.
United States v. Coffin
,
Rule 11 was substantially amended in 2002. See Fed. R. Crim. P. 11 advisory committee's note to 2002 amendments. The version of Rule 11 in effect at the time of the Blackwell guilty plea, however, mirrored in relevant part the current Rule 11(b)(1)(G). Compare Fed. R. Crim. P. 11(c)(1) (1996), with Fed. R. Crim. P. 11(b)(1)(G) (2002), and Fed. R. Crim. P. 11(b)(1)(G) (2015).
We are not outliers among the circuit courts in stressing the need for strict compliance with this part of Rule 11. Many of our sister circuits also interpret Rule 11 as requiring district courts, on the record, to ensure that defendants understand the elements of the offenses to which they are pleading guilty, and imposing consequences for failures in this respect.
See
United States v. McCreary-Redd
,
Nonetheless, we frequently see cases presenting Rule 11(b)(1) challenges to plea allocutions.
See also
United States v. Zea
,
Although the ultimate obligation to comply with Rule 11 falls on district courts, if counsel repeatedly fails to call the courts' attention to Rule 11 errors, the failure might needlessly permit "[a] recurring pattern of failure by a district judge to comply with Rule 11 [that] could undermine faith in the judiciary."
Pattee
,
Because the District Court could also consider the presentence report in concluding that Lloyd's plea was supported by the requisite factual basis, we need not opine as to whether Lloyd's monosyllabic admission of the facts in the written plea agreement is independently sufficient.
We note that, at sentencing, the District Court failed to confirm that Lloyd had the opportunity to review the presentence report with counsel. See Fed. R. Crim. P. 32(i)(1)(A) ("At sentencing, the court: [ ] must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report."). Lloyd has not argued on appeal, however, that this additional oversight provides a ground for reversal.
At oral argument before our Court, Lloyd's counsel suggested that the Supreme Court's recent decision in
Class v. United States
, --- U.S. ----,
We express no view on the merits of any such petition, or with regard to whether the petition would comply with the applicable procedural requirements imposed by
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Patrick LLOYD, Defendant-Appellant, Jon Garcia, Codi Burke, Bernie Russo, Kimberly Jandrew, Justin Brailsford, Travis Moore, Zachary Huto, Leslie Moore, Paul Williams, Catherine Berry, Ginelle Gardner, Michael Spencer, Jessica Monaghan, Defendants.
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