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Fifth Circuit Remands case for Acceptance of a Plea Deal Based on an Illusory Benefit: Pierre

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Pierre was a suspected courier for a drug conspiracy.  The agents saw Pierre throw two bags of cocaine into a co-conspirator’s car.  He was later indicted for conspiring to traffic 280 grams or more of cocaine base and distributing 28 or more grams of cocaine base.   The parties came to a plea agreement:

Under it, Pierre pleaded guilty to Count 1. In return, the government agreed to request dismissal of Count 2 and agreed that it would not charge Pierre as a multiple offender under 21 U.S.C. § 851—a provision which, Pierre was told, would have raised his mandatory minimum sentence from ten years to fifteen years.”

On appeal, Pierre argued that his plea was not knowingly and voluntary made as it was “was conditioned on the government agreeing not to pursue a sentencing enhancement under a provision that could not apply to him.”

The District Court plainly erred;  Pierre’s plea conditioned on the government agreeing not to pursue a sentencing enhancement that did not apply to him.


Pierre’s “guilty plea was induced in part by the government's promise not to charge him as a multiple offender ‘having at least one prior felony drug conviction, which would have resulted in a mandatory sentence of at least fifteen (15) years.’”  In order for the government to charge him that way he must have had a “serious drug felony” as described in 18 USC 924(c)(2)(A)(ii).  That includes:

“under State law, involv[e] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... [and] for which a maximum term of imprisonment of ten years or more is prescribed by law.”

The court indicated that Pierre’s priors didn’t qualify:

“Pierre had three prior convictions for possessing a controlled substance. As the government concedes, those offenses “do not include the necessary elements of manufacturing, distributing, or possessing with intent to do so,” so they do not provide a basis for the § 841(b)(1)(A) enhancement. And Pierre's one conviction for distribution carries a maximum sentence of less than ten years. So, Pierre's plea was induced by the promise of an illusory benefit and thus was not sufficiently knowing and voluntary.”  The court determined that this was error and that it was “clear or obvious.”

Pierre also showed that absent the error there was a reasonable probability that he would not have pleaded guilty:

“because the promise not to seek the inapplicable sentence enhancement was the primary benefit he was to receive in exchange for pleading guilty to Count 1. If applicable, the enhancement would have increased his mandatory minimum sentence by fifty percent, from ten years to fifteen years. Avoiding that enhancement is a substantial benefit and, indeed, the presentence report described it as the “[i]mpact” of the plea agreement. Moreover, as Pierre points out, he and his counsel participated in plea negotiations for quite a long time, and Pierre only agreed to plead guilty after the government offered not to seek the enhancement. The plea's timing does not prove a direct causal relationship between the government's promise and Pierre's plea, but it certainly weighs in Pierre's favor; it suggests that the promise made a difference for his decision.”

Finally, Pierre showed that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

“In this case Pierre lost the opportunity to pursue a more favorable outcome in a manner consistent with his fundamental rights—either by going to trial or by negotiating a different plea agreement founded on accurate assumptions—so we exercise our discretion to vacate the judgment and his plea.”

Pierre’s plea was vacated and the case was sent back down to the district court.  No. 20-30728

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