United States v. Leroya Cozad, 2022 WL 16492 (10th Cir. Filed January 3, 2022)
The Court in this opinion summarizes a concern defense attorneys have- use a plea agreement or plea to the indictment? This is a very different calculus in Federal Court where the judge does most of the “sentencing” as compared to state court where the prosecutors provide the agreed sentence.
In Cozad, the Court looked at “whether under 18 U.S.C. § 3553(a) it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement.” The 10th U.S. Court of Appeals tells us it is unreasonable.
Facts of the Case
Ms. Leroya Cozad was indicted on a single charge of aiding and abetting the making of counterfeit currency. In negotiations with the Government, she offered to enter a guilty plea to four (4) years-probation. The government countered with a “low end” guidelines sentence. She chose to enter a guilty plea to the indictment, without a plea agreement. The probation officer determined that guideline range was 24 to 30 months. Subsequently and prior to sentencing, both parties submitted sentencing memorandums. Ms. Cozad sought probation and the government sought the low end of 24 months, which is what it had sought during plea negotiations.
The District Court rejected those requests and sentenced Ms. Cozad to 27 months, the midpoint of the guidelines. In explaining that decision the district court stated:
I think sometimes there’s sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right. And, in practice, one of the factors I’ve used to lean against a low-end guideline range are defendants who submit a plea without a plea agreement, without the agreements that typically happen in a plea agreement.
That’s certainly their right to plead without a plea agreement, but they do not have a right to a low-end guideline range sentence, and so it’s always been my — again this isn’t a hard-and-fast rule by any means that I apply, but it’s always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in that, they’re entitled to additional consideration, which is where I start at a low-end guideline range.
But in my calculation, without a plea agreement, I have always started with looking more at the mid-tier of the guideline range, which is where I think the guidelines initially envisioned that courts would operate, and not giving them the additional credit for actually entering into a plea agreement to do that.
In this case, having thought about it obviously since our hearing last week, having looked through the briefs that have been filed in this case since that time, as well as additional information I’ve received from the probation office and going back through the report as well, it’s my conclusion that, first of all, Ms. Cozad has not shown demonstration that entitles her to a variance from the guideline recommendation of a custodial sentence, and I cannot find that that variance has been earned; and secondly, in light of the matters that I’ve just discussed overall, that a low-end guideline range sentence is not appropriate. [Emphasis in Opinion) Record cite at *2 Rec., vol. III at 42–44 (emphasis added).
Appeal
The Court began its analysis with discussing that a defendant’s sentence was reviewed for either procedural or substantive reasonableness. The Court focused on the fact that that the district court “described its customary practice of distinguishing defendant’s based on the nature of their plea.” And also that while the “district court made a passing reference to ‘the agreements that typically happen in a plea agreement,’ the court did not specify what those agreements are.”
As we know, and the Court of Appeals discussed, those agreements can be appeal waivers and, fast track type agreements. The Court began by analyzing, the district court’s decision under 18 U.S.C. § 3553(a) stating that there were only four permissible factors that could be considered by statute. And while a court under 18 U.S.C. § 3661 is told that “no limitation shall be placed on the information concerning the background, character and conduct of a person…” That does not mean that all information is relevant to a defendant’s character.
The Court analyzed that the defendant’s need for rehabilitation was impermissible a factor under 18 U.S.C. § 3582(c) See United States v. Story, F.3d 1241, 1247-48 (10th Cir. 2011) or even worse, refusing to testify, in United States v. Cabrera, 811 F.3d 801, 808-09 (6th Cir. 2016) that Court held that a within-guidelines sentence was procedurally unreasonable because it was based on the defendant’s refusal to testify. The Court pointed to several other illegal considerations, such as prison sentences for inability to pay restitution and as Justice Stevens summarized in Rita v. United States, 551 U.S. 338, 365 (2007) for non-relevant factors, when he noted that it would be “unreasonable for a district court to give “harsh sentences to Yankees fans and lenient sentences to Red Sox fans.”
The Court then turned to Ms. Cozad’s sentence and stated that it did not see how the “fact of a defendant’s open plea, standing alone, bears any meaningful relationship to the § 3553(a) factors.” This was because a plea agreement is a contract and either party may reject the other party’s offer or refuse to negotiate entirely. It continued stating that the fact that the parties failed to mutually agree, as here where Ms. Cozad requested probation and the government requested the low end (of the properly calculated guidelines); that failed contractual negotiation and agreement is not something that provides “insight into the defendant’s character.” It also does not constitute one of the proper reasons under the statute to aid a district court in determining a sentence to comply with §3553(a)- a sentence that is sufficient, but not greater than necessary. The court stated that penalizing a defendant on the “absence of a plea agreement alone is arbitrary.”
The government tried to go back to the district courts use of the “other agreements” that a plea agreement may contain. The 10th Cir. has held that a district court could consider a negotiated appellate waiver because it could show acceptance of responsibility beyond the mere guilty plea. Think of a defendant who failed a urinalysis or violated some other item and is in need of demonstrating to a court that he wants to be committed to acceptance of responsibility.
The Court continued though and discussed that the cases that discussed the appellate waiver in a plea agreement as consideration, were, “fundamentally different than the absence of an appeal waiver in an agreement that never happened and whose terms remain purely hypothetical.”
The government’s next reason was that without providing a benefit for “uniformity purposes” and “additional leniency” to individuals who use a plea agreement, defendant’s would not have a “compelling” reason to use a plea agreement.. The Court explained that the Government’s theory was based on a false premise. Because a prosecutor could always file additional charges or seek aggressive interpretation of the guidelines to provide a “compelling reason”. See Fed. R. Crim. P. 11(c)(1)(B),(C). Therefore, with the government’s recommendation, a defendant who refuses to a plea bargain would still risk receiving a higher sentence in many cases. Thus providing a “compelling” reason to accept a plea agreement in some cases.
Lastly, the Court looked at fast track plea agreements. These are plea agreements where the government has provided an agreement with a specific departure under §5K3.1 of the United States Sentencing Guidelines. The Sentencing Commission adopted § 5K3.1 at the direction of Congress, which sought to incentivize early plea deals by accommodating fast track programs within the guidelines. In the author’s experience these usually provide anywhere for 1 to 2 points for offenses like alien smuggling or illegal re-entry. Fast Track Plea Agreements reward defendants with the set reduction by entering a plea usually prior to the indictment and for waiving any pre-trial motion practice. The Court recognized that these programs do not fit into the § 3553(a) factors, but do reflect Congress’ intent. In Cozad, the district court placed its own expression of this intent, where Congress had not spoken.
Conclusion
Ultimately this does not mean that a defendant cannot receive a harsher sentence if she enters a guilty plea without a plea agreement; rather a defendant cannot receive a harsher sentence simply because she did not have a plea agreement. Rule 11(c) prevents a judge from entering into the negotiations of a plea agreement. See United States v. Carver, 160 F.3d 1266, 1269 (10th Cir. 1998). This does not mean that the government cannot provide the “compelling reasons” for a defendant to choose a plea agreement, only that the court cannot do so. Reflecting on plea decisions in federal court, this happens many times- role agreements, acceptance recommendations-where it may be at risk, and the hardest to obtain, charge bargaining where a charge is offered that does not contain a mandatory minimum. These are some quick examples of “compelling” reasons that can be negotiated in a beneficial plea agreement. However simply entering into a plea agreement in a single count fraud indictment may not provide any incentive or “compelling reason” where the government is recommending the low end of a properly calculated guideline. Here Cozad explains that you should not be punished for solely that act of acceptance and not taking a benefit-less agreement.
