APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. NO. 2:11-CR-20125-CM-1).
REVERSED and REMANDED.
Thomas H. Johnson, Petefish, Immel, Heeb & Hird, LLP, Lawrence, KS, for Defendant-Appellant.
Barry R. Grissom, United States Attorney, and James A. Brown, Assistant United States Attorney, Topeka, KS, for Plaintiff-Appellee.
Before McHUGH, McKAY, and BALDOCK, Circuit Judges.[*]
BALDOCK, Circuit Judge.
Defendant Ronald Catrell appeals his sentence, alleging: (1) a portion of the sentence illegally exceeded a statutory maximum, and (2) the Government vindictively insisted on a plea agreement recommending 132 months in prison. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Although we find no prosecutorial vindictiveness here, we must reverse and remand in order for the district court to correct its imposition of an illegal sentence.
In late 2011, the Government filed an information in the District of Kansas charging Defendant with various fraud-related crimes. The information was filed with the understanding tat Defendant would plead guilty. Defendant, however, fled the jurisdiction after posting bond and was only returned to Kansas after authorities arrested him in South Carolina in July 2012. He then entered a different, binding plea agreement with the Government under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Per this agreement, Defendant would receive 120 months in prison for the following crimes: bank fraud (18 U.S.C. § 1344), wire fraud (18 U.S.C. § 1343), money laundering (18 U.S.C. § 1957), and aggravated identity theft (18 U.S.C. § 1028A). Defendant thereafter pled guilty to these four felony counts.
Before sentencing, however, and after a lengthy hearing, the district court allowed Defendant to withdraw this guilty plea. The Government then procured an indictment against Defendant with over a dozen new criminal counts. Within weeks, Defendant entered into a new Rule 11(c)(1)(C) agreement with the Government. This time, Defendant would plead guilty to the same four crimes as before and receive 132 months in prison--a 12-month increase from the prior plea. To reach this total, the parties agreed to a 24-month sentence for aggravated identity theft, to run consecutively with concurrent 108-month sentences for bank fraud, wire fraud, and money laundering.
Defendant subsequently pled guilty and affirmed, after extensive questioning, that he was doing so of his own free will and pursuant to the Rule 11(c)(1)(C) agreement. He also stated that although he was surprised and disappointed with the 12-month increase, he was nevertheless requesting the 132-month sentence outlined in the agreement; in addition, he acknowledged he would have no opportunity to ask for a lower sentence once the court accepted the agreement. Indeed, at the change of plea hearing alone, he affirmed his acquiescence to the 132-month sentence at least eight separate times. In light of the unexpected indictment, Defendant explained, the plea agreement " is the best approach to this--to resolve this matter."
Later, at sentencing, Defendant opined in allocution that the new indictment was " punishment for withdrawing the [earlier guilty] plea" and that " I feel like there's no choice but to accept" the new plea agreement. Upon questioning, however, he again reiterated that he nevertheless willingly entered the agreement and willingly pled guilty, fully aware that his sentence would be 132 months. The court then accepted the agreement and sentenced Defendant to 132 months. In crafting the sentence, though, the court sentenced Defendant to 54 months for aggravated identity theft (as opposed to the 24 months set out by the parties) and 78 months for the other three crimes (as opposed to the 108 months set out by the parties). Thus, while the total sentence was identical to that put forth in the Rule 11(c)(1)(C) agreement, the math used to achieve that total was different. Neither party objected to the court's alternate method. Defendant now appeals his aggravated identity theft sentence. But first, we must address his claim of prosecutorial vindictiveness.
Defendant argues the Government vindictively punished him for withdrawing his initial guilty plea by adding 12 months to his sentence in the final Rule 11(c)(1)(C) agreement. At minimum, he argues, the Government should have to rebut a presumption of vindictiveness on remand. We disagree. Although the parties dispute the applicable standard of review, binding precedent forecloses Defendant's argument even under de novo review. Simply put, " in the 'give-and-take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." United States v. Lampley, 127 F.3d 1231, 1245 (10th Cir. 1997) (alteration omitted) (emphasis added) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)).
Nothing in the record indicates Defendant was forced to go along with the 132-month sentence. True, Defendant mentioned at sentencing that " I feel like there's no choice but to accept" the new plea agreement. The district court immediately pressed Defendant on this statement, though, and he reiterated--in line with his numerous comments at the extremely thorough change-of-plea hearing--that he had willingly entered the agreement and willingly pled guilty. We see no evidence in the record that indicates otherwise, so there can be no error. See United States v. Sarracino, 340 F.3d 1148, 1179 (10th Cir. 2003) (" Sarracino made the tactical choice to reject the plea bargain and proceed to trial. The government had probable cause to seek the reindictment of Sarracino for second degree murder based on the facts . . . and did so. . . . 'A claim of vindictive prosecution cannot insulate the defendant from the lawful consequences of his tactical choices.'" (citations omitted)); United States v. Berger, 251 F.3d 894, 910 (10th Cir. 2001) (" [T]he fact that the prosecutor informed the defendants that if they withdrew from their plea agreements they would lose the benefit of the agreed-upon prison terms does not give rise to an inference of vindictiveness . . . ." ).
We now turn to Defendant's primary contention, which is that the district court erred by sentencing him to 54 months for aggravated identity theft. The Government concedes error on this point, and rightly so. Aggravated identity theft under 18 U.S.C. § 1028A requires a " term of imprisonment of 2 years" --no more, no less. See id. § 1028A(a)(1); United States v. Dooley, 688 F.3d 318, 319 (7th Cir. 2012) (" Section 1028A has an unusual penalty provision. Every conviction under that statute is punished ...