Submitted October 25, 2013
Appeal from United States District Court for the District of North Dakota - Fargo.
For United States of America, Plaintiff - Appellee: Megan A. Healy, Assistant U.S. Attorney, Tara Vavrosky Iversen, Assistant U.S. Attorney, Christopher C. Myers, Assistant U.S. Attorney, U.S. Attorney's Office, District of North Dakota, Fargo, ND.
For Fred Miles Thompson, Defendant - Appellant: Neil Fulton, Federal Public Defender, Federal Public Defender's Office, Pierre, SD; Richard J. Henderson, Assistant Federal Public Defender, Federal Public Defender's Office, Fargo, ND; Scott Duncan McGregor, Federal Public Defender's Office, Rapid City, SD.
Fred Miles Thompson, Defendant - Appellant, Pro se, Pine Knot, KY.
Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Fred Thompson pleaded guilty to conspiracy to possess with intent to distribute a mixture containing methamphetamine, in violation of 21 U.S.C. § § 841(a)(1) and 846, and use of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Thompson to 480 months' imprisonment on Count 1 and a consecutive life sentence on Count 2. Thompson appeals, challenging the district court's compliance with Fed. R. Crim. P. 11, alleging the district court improperly participated in plea negotiations and failed to advise him of the maximum sentence for Count 2. Because we find Thompson has not made the required showing that there was a reasonable probability that but for the alleged errors, he would not have entered a guilty plea, we affirm.
On March 21, 2012, a grand jury returned a two-count indictment against Thompson, charging him in Count 1 with conspiracy to possess with intent to distribute a mixture containing methamphetamine and in Count 2 with use of a firearm during a drug trafficking crime. On September 12, 2012, the government filed an information under the " three strikes" provision of 18 U.S.C. § 3559(c)(4), asserting Thompson was subject to a mandatory life sentence if convicted on Count 2.
Thompson and the government negotiated a plea agreement wherein Thompson agreed to plead guilty to both counts of the indictment in exchange for the government agreeing to reduce the drug quantity charged in Count 1, thus lowering the statutory mandatory minimum sentence to which he was exposed, and to withdraw the § 3559 information. The plea agreement set forth the statutory penalties for each count: Count 1 carried a mandatory minimum sentence of 5 years, a maximum sentence of 40 years, and 4 years of supervised release; Count 2 carried a consecutive 7-year mandatory minimum sentence,
a maximum sentence of life, and 3 years of supervised release. The plea agreement also contained an appeal waiver, which provided that Thompson waived his right to appeal, except for a claim of ineffective assistance of counsel or a sentence above the court-determined sentencing guidelines range.
The day before trial was to begin, Thompson notified the district court he would plead guilty. The proposed plea agreement was provided to the district court for review. The district court delayed the arrival of the jury to the afternoon to allow time for a change of plea hearing. When he appeared before the court the following morning, however, Thompson stated he had changed his mind and still wanted a trial. The district court then engaged in the following dialogue with Thompson:
THE COURT: Now if you're convicted on both counts--the second count is a use of a firearm in a crime of violence and drug trafficking in violation of 18 U.S.C. § 924. That's 18, United States Code, Section 924. And so basically here's what's going to happen. There was an offer on the table that would have reduced the penalty on the first count and would have removed the life--mandatory life sentence on the second count. So--and I think that what you would have been looking at a mandatory minimum, if I understand what the plea offer was, you would have been looking at a mandatory minimum five years on Count One with a consecutive seven on Count Two. So if you took the Plea Agreement there would be a mandatory minimum 12 years of imprisonment. If you're acquitted obviously you don't go to prison at all. If you're convicted on both counts you will be sentenced to a life sentence plus seven years.
Now that means in this system that you will die in prison. That's because there is no parole and no early release in the federal system, okay? The only way you can get out of prison if you're convicted on the charges that you currently face is if the president of the United States pardons you or commutes your sentence to a period of years.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. Now that means that at the end of the day if you try this case and it goes to a jury and you're convicted I will have no choice, none, but to sentence you to life plus seven. And there will be absolute--I won't be able to do anything else no matter how much I might wish I could. No matter how much I might try to do it, the law will only allow one sentence.
As a matter of fact, even though we will have a delay between the time the verdict comes in and the time of sentencing, we really don't need it because in the end I won't have any choice. So the sentencing hearing will become a mere formality and the only reason we'll hold that sentencing hearing if you're convicted is to make some recommendations about where you might serve your time in ...