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United States of America v. Scott J. Bloch

August 3, 2011

UNITED STATES OF AMERICA
v.
SCOTT J. BLOCH, DEFENDANT/APPELLANT.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION & ORDER

Before the Court is defendant Scott Bloch's appeal [70] of the Magistrate Judge's denial [47] of his unopposed motion to withdraw his guilty plea [37], or alternatively, of the Magistrate Judge's denial [54] of his motion to reconsider [50]. The government does not oppose [72] defendant's appeal of the denial of his unopposed motion to withdraw his guilty plea. In light of the government's lack of opposition, and upon consideration of the appeal, the response thereto, the entire record herein, and the applicable law, the Court REVERSES the Magistrate Judge's denial [47] of defendant's unopposed motion to withdraw his guilty plea.

I.FACTUAL AND PROCEDURAL BACKGROUND

On April 22, 2010, the government charged defendant by Information with one count of misdemeanor Contempt of Congress in violation of 2 U.S.C. § 192. On April 27, 2010, the government and defendant reached a plea agreement in which defendant agreed to plead guilty to misdemeanor Contempt of Congress in violation of 2 U.S.C. § 192, in exchange for the government's promise "not to oppose a sentence at the low end of the applicable Guidelines range," which the agreement calculated as "0 to 6 months." Plea Agreement 3--4 [3]. The agreement indicated that "the charge carries a maximum sentence of not more than twelve months' imprisonment, a maximum fine of $100,000, and a $25 special assessment," but did not otherwise inform defendant of any mandatory minimum sentence. Id. at 1.

On April 27, 2010, Magistrate Judge Deborah Robinson conducted defendant's plea hearing. At no time during the Rule 11 plea colloquy did the Magistrate Judge inform defendant that he faced a one-month mandatory minimum period of incarceration for pleading guilty to 2 U.S.C. § 192. See Tr. of Apr. 27, 2010 Plea Hr'g. And as both defendant and the government argue, the Magistrate Judge's reference to imprisonment during the plea colloquy suggested that a period of incarceration was optional rather than mandatory. See id. at 9 ("Do you understand . . . that if you are sentenced to a period of incarceration, you will not be released early on parole?") (emphasis added). Indeed, the Magistrate Judge herself acknowledges that she failed to inform defendant that he was subject to a mandatory minimum sentence as part of his plea. See Mem. Op. and Order 9 [47] ("While the court neglected during the 45-minute Rule 11 colloquy to inform Defendant of the mandatory minimum penalty provision for the offense to which he wished to plead guilty . . ."). After conducting the colloquy, verifying that defendant had not been coerced into signing the plea agreement, and hearing the factual proffer, the Magistrate Judge accepted defendant's plea.

Prior to defendant's scheduled sentencing date, the U.S. Probation Office prepared a draft presentence investigation (PSI) report indicating that 2 U.S.C. § 192 carried a "minimum term of imprisonment [of] one month." Draft Presentence Investigation Report 19 [7]. After reviewing the draft PSI, the government objected that "while 2 U.S.C. § 192 indicates a term of imprisonment of 1 to [12] months, this statute does not make the 1 month of incarceration a mandatory minimum period of incarceration." Final Presentence Investigation Report 23 [8]. On July 13, 2010, the Probation Office issued its final PSI, which-in response to the government's objection-reiterated that 2 U.S.C. § 192 required a "minimum sentence of imprisonment [of] 30 days in a common jail." Id. The Magistrate Judge subsequently ordered the parties to brief the issue of whether the statute permitted a sentence of probation. See Minute Order, July 23, 2010. In response, the parties submitted a total of four sentencing memoranda [15, 16, 23, 24] in which they argued that the statute constituted a probation-eligible offense and did not mandate incarceration. On September 8, 2010, the Magistrate Judge held a hearing on the issue, during which the government stated that the parties had entered into the plea relying on the joint understanding that the statute was a probation-eligible offense and that, should the Magistrate Judge find otherwise, fundamental fairness would permit defendant to withdraw his plea. Tr. of Sept. 8, 2010 Hr'g 8--9, 19--20, 23 [67]. Several months later, on February 2, 2011, the Magistrate Judge determined that 2 U.S.C. § 192 carried a mandatory minimum sentence of thirty days. See Mem. Op. [32].

On February 17, 2011, defendant filed an unopposed motion to withdraw his April 27, 2010 guilty plea, arguing that the Magistrate Judge's Rule 11 colloquy "did not advise him that he was facing a charge that the Court subsequently ruled mandates a minimum sentence." Unopp. Mot. to Withdraw Guilty Plea 1 [37]. The government filed a response confirming that it did not oppose defendant's motion. Gov'ts Resp. to Unopp. Mot. to Withdraw Guilty Plea [39]. On March 9, 2011, the Magistrate Judge denied defendant's unopposed motion. Mem. Op. and Order [47]. In so doing, she found that her failure to inform defendant of the mandatory minimum penalty provision in 2 U.S.C. § 192 was harmless because he was "cognizant of the full extent of the provisions of the statute." Id. at 11. She focused on the fact that defendant is a lawyer himself and was represented by counsel, id. at 5; that the mandatory minimum provision "is plainly included in the statute [and defendant] does not claim that he was unaware of the provision," but only that he believed that probation was possible, id. at 20; and that defendant was advised that he could receive up to one year in prison. Id. at 5--6, 9, 12--14, 20. Defendant subsequently filed a motion for reconsideration [49], which the government supported [52]. On March 29, 2011, the Magistrate Judge denied defendant's unopposed motion for reconsideration. Mem. Op. and Order [54].

One day later, the Magistrate Judge held a sentencing hearing during which the parties- arguing that the court had erred in refusing to grant defendant's motion to withdraw-asked that the court sentence defendant to probation. Tr. of Mar. 30, 2011 Sent. Hr'g 14--24 [68]. The Magistrate Judge nevertheless sentenced defendant to a mandatory term of thirty days' incarceration, see Minute Order, Mar. 30, 2011, and entered a stay of sentence pending appeal. See Order, Apr. 6, 2011 [62]. Defendant timely filed a notice of appeal in this Court under Federal Rule of Criminal Procedure 58(g)(2). See Notice of Appeal, Apr. 7, 2011 [63].

II.STANDARD OF REVIEW

In reviewing the Magistrate Judge's rulings, this Court applies the same standard that a federal appellate court applies when reviewing a district court case. Fed. R. Crim. P. 58(g)(2)(D). Thus, the Court reviews the Magistrate Judge's denial of defendant's motion to withdraw his guilty plea for abuse of discretion. See United States v. Berkeley, 567 F.3d 703, 708 (D.C. Cir. 2009) ("We review a district court's refusal to permit withdrawal [of a guilty plea] only for abuse of discretion."). The Court reviews the Magistrate Judge's findings of fact-such as her finding that defendant understood that he faced one month of mandatory incarceration-for clear error. See, e.g., United States v. Rivera-Gonzalez, 626 F.3d 639, 643 (1st Cir. 2010) ("The trial court's subsidiary findings of fact in connection with the plea-withdrawal motion are reviewed only for clear error.") (internal citations and quotation marks omitted).

III.DISCUSSION

Defendant argues that the Magistrate Judge abused her discretion in denying his withdrawal motion and motion for reconsideration despite her acknowledged violation of Rule 11. He asserts that the record indisputably shows a Rule 11 error in that the Magistrate Judge failed to advise him of the mandatory minimum sentence he later received at sentencing. He further asserts that this error was not harmless, as he "had no knowledge of the mandatory minimum sentence, and if he had, he would not have pleaded guilty." Br. of Def.-Appellant 12-- 13 [70]. Defendant points to his unrebutted sworn affidavit and to the circumstances surrounding the plea hearing to demonstrate that he was not aware that 2 U.S.C. § 192 carried a mandatory minimum sentence. He contends that the Magistrate Judge's omission "not only rendered his plea legally involuntary, it also defeated the purpose of [his] plea agreement, because both parties agreed that probation was possible and that the Government would recommend a sentence on the low end of the '0 to 6' month range." Id. at 13.

The government does not oppose defendant's appeal of the denial of his withdrawal motion. The government agrees-as it has at every stage of the proceedings since defendant's plea colloquy-that the Magistrate Judge's failure to inform defendant that he faced a mandatory minimum sentence constituted a Rule 11 error. The government further argues that the Magistrate Judge's assertion that her error was harmless because defendant must have known that he faced a mandatory minimum sentence "is belied by the record in this case." Gov'ts Resp. to Def.'s Appeal 3 [72]. First, the government states that the record demonstrates that defendant believed he could receive a sentence of probation when he pled guilty on April 27, 2010. The government notes that it "shared this same belief," in part because the U.S. Probation Office had concluded one year earlier that 2 U.S.C. § 192 allowed for a sentence of probation in United States v. Miguel Tejada, 09-mj-077. Id. at 4. In short, the government argues, "it was not unreasonable" for defendant to have believed that he could receive a sentence of probation when he pled guilty. Id. The government further states that it "has no reason to doubt the veracity" of defendant's statement that he would not have pled guilty had he understood that he faced one month of mandatory incarceration. Id. at 6. Thus, the government asserts, the Magistrate Judge's "Rule 11 error was not harmless and the defendant should therefore have been allowed to withdraw his plea." Id.

Federal Rule of Criminal Procedure 11(b)(1) provides, in relevant part, "Before the court accepts a plea of guilty . . . the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands . . . any mandatory minimum penalty." Fed. R. Crim. P. 11(b)(1)(I) (emphasis added). Rule 11 further permits a defendant to withdraw a guilty plea after the court accepts the plea if "the defendant can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). Here, there is no dispute that the Magistrate Judge failed to inform defendant during his Rule 11 colloquy that he was subject to a mandatory minimum period of incarceration. See Mem. Op. and Order 9 [47] ("While the court neglected during the 45-minute Rule 11 colloquy to inform Defendant of the mandatory minimum penalty provision for the offense to ...


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