Monday, January 5, 2015

Like Christmas Presents, Sentences Also Come in Packages

The Holidays derailed us for a bit. But we are back (as of yesterday), with updates on a number of recent published decisions from the Tenth Circuit. Today: United States v. Catrell.
The case involves the imposition of an illegal sentence. Ronald Catrell committed a number of fraud-related crimes. He pleaded guilty to bank fraud, wire fraud, money laundering, and aggravated identity theft. The parties agreed on a 120-month sentence via a Rule 11(c)(1)(C) plea agreement (the one that binds the district court). But then Mr. Catrell got cold feet and withdrew his plea (the opinion does not tell us why). Then he got a different type of cold feet and pleaded guilty again. This time, the parties agreed on a 132-month sentence via a Rule 11(c)(1)(C) plea agreement. So a net loss of 1 year for our indecisive defendant.
Because the aggravated identity theft conviction carries a 2-year consecutive sentence (no more, no less, and never concurrent to a non-identity theft count), the parties structured the agreed-upon sentence as 24 months on the aggravated identity theft count, consecutive to concurrent 108-month sentences on the other three counts (again, for a grand total of 132 months).
Yet, at sentencing, everyone forgot about this portion of the plea agreement, and Mr. Catrell walked away with a 54-month sentence on the aggravated identity theft count (plus 78 months on the other three counts) Because 54 is greater than 24, the sentence on the aggravated identity theft count was an illegal sentence.
So the Tenth Circuit vacated the sentence and remanded for resentencing in accordance with the terms set forth in the plea agreement (a Pyrrhic victory for our defendant). In doing so, however, the Court managed to reject arguments from both parties. First, the government's affirm-on-plain-error-review argument fell for an obvious reason: an illegal sentence is always plain, reversible error. Second, the defendant sought a windfall: vacate the 54-month sentence, but not the 78-month sentences, which would result in a total sentence of 102 months on remand (78 plus 24). There are a number of problems with this argument (the obvious is that it contradicts the terms of the (c)(1)(C) agreement). But, perhaps in the Holiday spirit, the Court noted that sentences come in packages, and, when one portion of the package goes away, the rest of it does too. The defendant made some attempts to avoid this result (trying to distinguish vacated convictions from vacated sentences (unhelpful considering that a vacated conviction results in a vacated sentence), and trying to distinguish between sentences imposed pursuant to 11(c)(1)(C) agreements (a head scratcher, considering that the defendant basically asked the Court to sentence him below the agreed sentence). Nor did the Court buy the defendant's argument that the government should have appealed the 78-month sentences. That is an interesting argument, but no match for the sentencing package doctrine, which can be used to vacate perfectly lawful sentences (see this case, where a court used the sentencing-package doctrine to vacate a firearms sentence in light of a Supreme Court case related solely to crack cocaine sentences).  
The defendant also raised a prosecutorial vindictiveness argument based on the 1-year bump in the (c)(1)(C) agreement. The Court brushed this aside, noting that the defendant could have rejected the proposed plea agreement. Not knowing much of anything about the underlying facts, that seems like a plausible conclusion; the better practice would be not to plead guilty, then withdraw the plea, then plead guilty again. We imagine good things hardly ever come from such tactics.
We end with this observation: all of this could have been avoided had the government not required a plea to the aggravated identity theft count. Why not just plead to the other counts and avoid a consecutive/concurrent conundrum? A healthy dose of pragmatism would have gone a long way in this case.

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