United States District Court, D. Vermont
ORDER (DOC. 62)
J. Garvan Murtha United States District Judge.
August 5, 2016, the Court granted in part Defendant Brian
Hoskins' motion to vacate under 28 U.S.C. § 2255.
(Doc. 94.) The Court vacated Hoskins' sentence and
ordered the parties file memoranda regarding the posture of
the plea, plea agreement and resentencing. See Docs.
95, 96. The Court held a hearing on October 5, 2016 and
provided the parties an additional opportunity to respond,
specifically requesting discussion of United States v.
Hyde, 520 U.S. 670, 674 (1997) and United States v.
Lopez, 385 F.3d 245, 251 (2d Cir. 2004). The parties
complied. (Docs. 99, 100.)
government initially contended “[t]he guilty plea and
the stipulated sentence are merged components of the
parties' Fed. R. Crim. P. 11(c)(1)(C) Plea Agreement,
” and that by “rejecting the agreed-upon
sentence, the Court effectively reject[ed] the Plea Agreement
and plea, ” necessitating vacatur of the plea. (Doc. 95
at 1.) Hoskins contended the Court's rejection of the
plea agreement did not automatically invalidate the plea but
required only that he be given the opportunity to withdraw
his plea and expressed his desire to retain his plea and move
forward with resentencing. (Doc. 96.)
Supreme Court has held a plea and plea agreement need not be
accepted or rejected as a single unit. United States v.
Hyde, 520 U.S. 670, 674 (1997) (“[The Federal
Rules of Criminal Procedure] nowhere state that the guilty
plea and the plea agreement must be treated
identically”); see also United States v.
Lopez, 385 F.3d 245, 251 (2d Cir. 2004)
(“[N]othing in the text of the Federal Rules of
Criminal Procedure would have required that [Defendant's]
guilty plea be withdrawn either following or as a
prerequisite to nullification of his plea agreement.”).
With regard to the language of current Rule 11(c)(5), the
Court noted it “implements the commonsense notion that
a defendant can no longer be bound by an agreement that the
court has refused to sanction.” Hyde, 520 U.S.
at 676. The Court emphasized the language of the rule that
notes a court must “afford the defendant the
opportunity to then withdraw the plea.” Id. at
675; see also Lopez, 385 F.3d at 250 (“A
defendant who has entered into a . . . Binding Sentence
Agreement [under Rule 11(c)(1)(C)] has an unrestricted right
to withdraw his guilty plea after its acceptance but before
sentence if the district court rejects his plea
to the government's initial position, see Doc.
95, there is nothing in Rule 11 regarding the
government's ability to unilaterally force a defendant to
withdraw a guilty plea if the plea agreement is rejected by
the court. The Hyde Court distinguished the appeals
court statement that “the plea agreement and the
[guilty] plea are inextricably bound up together:”
This statement, on its own, is not necessarily incorrect. The
guilty plea and the plea agreement are “bound up
together” in the sense that a rejection of the
agreement simultaneously frees the defendant from his
commitment to plead guilty. See Rule 11(e)(4)
[current Rule 11(c)(5)]. And since the guilty plea is but one
side of the plea agreement, the plea is obviously not wholly
independent of the agreement.
But the Rules nowhere state that the guilty plea and the plea
agreement must be treated identically. Instead, they
explicitly envision a situation in which the defendant
performs his side of the bargain (the guilty plea) before the
Government is required to perform its side (here, the motion
to dismiss four counts). If the court accepts the agreement
and thus the Government's promised performance, then the
contemplated agreement is complete and the defendant gets the
benefit of his bargain. But if the court rejects the
Government's promised performance, then the agreement is
terminated and the defendant has the right to back out of his
promised performance (the guilty plea) . . . .
Id. at 677-78.
the Lopez Court did not decide whether a defendant
who “pleaded guilty pursuant to a . . . Binding
Sentence Agreement [under Rule 11(c)(1)(C)] would be
permitted to withdraw from his plea agreement without also
withdrawing from his guilty plea, ” it stated a
“defendant who enters into a . . . Binding Sentence
Agreement always has the option of keeping his guilty plea
intact in the event that his agreement is rejected by the
district court, even though the plea was entered on the
understanding that the agreement would be accepted.”
385 F.3d at 251 n.13.
light of the Supreme Court's Hyde and the Second
Circuit's Lopez analyses, among other cases, the
government now concedes Hoskins may retain his guilty plea.
(Doc. 100 at 4.) In agreeing to resentencing, the government
reminds the Court that a revised Presentence Investigation
Report is required to, inter alia, correct the career
offender designation. Id. Hoskins maintains his
election to continue with his guilty plea intact and requests
the case be set for resentencing as soon as practicable.
(Doc. 99 at 4.) At the October hearing, Hoskins, under oath,
elected not to exercise his right to withdraw his guilty
the Probation Office shall prepare a revised Presentence
Investigation Report. Sentencing is set for Wednesday,
December 28, 2016, at 10:30 a.m. in Brattleboro, Vermont. The
United States Attorney shall take all necessary steps to
assure Hoskins' presence at the hearing. The ...