Tuesday, June 30, 2009
Ind. Decisions - Two Indiana opinions today from the 7th Circuit
In U.S. v. Rolls-Royce (SD Ind. Judge Barker), a 13-page opinion (that is not readily summarized) from a panel including Judges Wood and Posner, Chief Judge Easterbrook writes:
Now that the question has been squarely presented, we join the fifth circuit in concluding that the resolution of personal employment litigation does not preclude a qui tam action, in which the relator acts as a representative of the public. The special status of the United States counsels against reflexive transfer of rules of preclusion from private to public litigation. See United States v. Mendoza, 464 U.S. 154 (1984) (non-mutual issue preclusion does not apply to suits involving the United States). Cf. EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (an employee’s private disposition, via arbitration, of a claim against an employer does not diminish the federal government’s ability to pursue judicial relief independently); EEOC v. Sidley Austin LLP, 437 F.3d 695 (7th Cir. 2006) (employee’s failure to make a timely charge of discrimination does not prevent EEOC from suing to vindicate interest in law enforcement). * * *In U.S v. Cole (ND Ind., Judge Moody), a 10-page opinion, Judge Sykes writes:
The judgment of the district court is affirmed with respect to the claim under §3729(a)(7) and otherwise reversed. The case is remanded for a decision on the merits.
Parrish Cole entered into a written plea agreement with the government in which he acknowledged distributing less than 400 grams of heroin and less than a kilogram of marijuana. The district court accepted the plea agreement but found, based on information in the presentence report, that Cole should be held responsible for a greater quantity of drugs than the amounts he had admitted in the agreement. The court increased Cole’s guidelines range accordingly and sentenced Cole to 97 months in prison, which was nearly double the sentence Cole expected if the court had followed the recommendations in the plea agreement. Cole challenges his sentence; although in his plea agreement he waived his right to appeal, he argues that the appeal waiver is unenforceable because the district court’s independent calculation of the drug quantities effectively nullified the agreement.
We disagree. The enforceability of Cole’s appeal waiver hinges on whether the drug quantities in Cole’s plea agreement were binding on the district court for sentencing purposes. Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure provides that if the district court accepts a plea containing an agreement between the government and the defendant about a specific sentence, sentencing range, or the applicability of a specific guidelines provision, policy statement, or sentencing factor, the court is bound by the parties’ agreement for purposes of sentencing. Cole’s drug-quantity admissions in the plea agreement do not fall into any of these categories but are instead factual stipulations that fall outside Rule 11(c)(1)(C)’s scope and thus do not bind the district court. See U.S.S.G. § 6B1.4(d). Accordingly, when the district court independently quantified the amount of drugs attributable to Cole based on information in the presentence report, it did not nullify the plea agreement. The appeal waiver in Cole’s agreement is enforceable, and we dismiss his appeal.
Posted by Marcia Oddi on June 30, 2009 12:00 PM
Posted to Ind. (7th Cir.) Decisions