Sunday, July 9, 2017

Plea colloquy not enough to trigger mandatory minimum (Biglow redux)

Remember the Biglow cases? We blogged about them back in 2015. In Biglow II, the Tenth Circuit made it clear that the mandatory minimum sentences in 21 U.S.C. § 841(b) cannot be triggered on anything less than proof or an admission that X amount was involved in the scope of the criminal activity that the defendant jointly undertook, and that X amount was reasonably foreseeable to the defendant.

We wondered at the time what kind of plea colloquy would satisfy this requirement. Last month, the Tenth Circuit answered that question in United States v. Carillo.

Mr. Carillo was charged with participating in a 100-plus gram heroin conspiracy. This quantity would have subjected him to a mandatory minimum of 5 years in prison. But the only overt act attributed to him in the indictment was one 50-gram sale.
 
Mr. Carillo pleaded guilty as charged without a plea agreement. At his plea hearing, the prosecutor recited Mr. Carillo's involvement in the 50-gram sale, and Mr. Carillo agreed with that recitation. Nothing in the plea record established that the 100-grams-plus quantity charged in the conspiracy as a whole was either within the scope of Mr. Carillo's agreement or reasonably foreseeable to him. Nonetheless, the district sentenced Mr. Carillo to the 5-year mandatory minimum rather than within his 27-33 month guideline sentencing range.
 
Mr. Carillo appealed, attacking his plea in multiple ways. The Tenth Circuit rejected most of his attacks, but held that this record did not establish an adequate factual basis for Mr. Carillo's plea: "[T]o prove the factual basis for Carillo’s conspiracy plea, the record has to show that the 100-gram drug quantity was within the scope of the agreement and reasonably foreseeable to him." (Citing Alleyne). "Carillo's admission to one fifty-gram heroin on day one of the conspiracy---with no further alleged involvement---was insufficient to support his plea to conspiracy to distribute 100 grams of heroin."

So what's the remedy? Withdrawal of the plea? Or can Mr. Carillo stand convicted of a lesser included conspiracy---one that doesn't trigger that statutory minimum? The parties didn't address this issue on appeal, and so the Tenth Circuit punted it back to the district court.

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