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Friday, April 04, 2008

Ind. Decisions - 7th Circuit issues one Indiana opinion

In U.S. v. Ivory Griffin (ND Ind., Judge Sharp), a 7-page opinion, Judge Kanne writes:

Ivory Griffin pled guilty to one count of possessing an unregistered firearm, 26 U.S.C. § 5861(d), and one count of possessing a firearm after having been previously convicted of a felony, 18 U.S.C. § 922(g)(1). The district court sentenced him to a total of 146 months’ imprisonment on both counts. On appeal, Griffin seeks to withdraw his guilty pleas on the basis that the court conducted an incomplete plea colloquy. See Fed. R. Crim. P. 11(b). Griffin also challenges his sentence on the grounds that the court (1) denied him his right to allocution before imposing sentence; and (2) inappropriately entered a corrected judgment. We affirm Griffin’s convictions. However, we vacate his sentence and remand for resentencing. * * *

Despite conducting an otherwise thorough Rule 11 colloquy, the district court did not specifically advise Griffin that he would have had the right to present evidence or that he could have compelled the attendance of witnesses through the court’s subpoena power. See Fed. R. Crim. P. 11(b)(1)(E). And although the court informed Griffin that he would “be sentenced under the appropriate [Sentencing] Guidelines,” the court did not explain that it had the authority “to depart” from the applicable guidelines range. See Fed. R. Crim. P. 11(b)(1)(M).

This is not the first time that we have addressed a challenge to a Rule 11 colloquy when counsel failed at the plea hearing to inform the district court of its omissions. And it is difficult to understand why counsel here did not help the court avoid correctable omissions. Confusion over Rule 11’s requirements should not be the reason; the Rule is not new, unclear, or even difficult to access. Not only should counsel for the government, as well as for the defendant, be familiar with Rule 11 before even walking into a plea hearing, but it would also be a good practice for them to have a copy of the Rule handy so they can follow along with the court’s colloquy. That way, if the court overlooks one of the Rule’s provisions, counsel can bring the omission to the court’s attention and avoid any later grief. We would like to think that any sentencing judge would not only correct the omissions that he or she made while conducting the colloquy, but would appreciate the opportunity to do so.

Moreover, counsel have nothing to gain by remaining silent about the district court’s omissions. * * *

The fact remains, however, that Rule 11 is controlling law in federal criminal matters. See Fed. R. Crim. P. 1(a)(1). As such, counsel have a professional duty to speak up if they notice that the court happens to forget a portion of the colloquy. See Ind. Rules of Prof’l Conduct R. 3.3(a)(2) (“A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”) * * *

With that said, we turn to Griffin’s challenge to his sentence, which, unlike his attempt to withdraw his guilty pleas, has merit. Griffin argues that his sentence should be vacated and his case remanded for resentencing on the ground that the district court violated his right to a meaningful allocution by announcing the sentence it intended to impose before affording him the opportunity to speak. The government agrees. We do as well; a district court plainly errs by announcing its intended sentence before a criminal defendant’s allocution. * * *

Griffin’s convictions are AFFIRMED. His sentence, however, is VACATED, and his case is REMANDED to the district court for resentencing.

Posted by Marcia Oddi on April 4, 2008 12:58 PM
Posted to Ind. (7th Cir.) Decisions