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United States v. Ushery

United States Court of Appeals, Sixth Circuit

May 6, 2015

DANIEL L. USHERY, JR., Defendant-Appellant

Argued March 4, 2015

Page 211

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:13-cr-00027--David L. Bunning, District Judge.


Christopher F. Cowan, Columbus, Ohio, for Appellant.

Daniel Steven Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Christopher F. Cowan, Columbus, Ohio, for Appellant.

Daniel Steven Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Anthony J. Bracke, UNITED STATES ATTORNEY'S OFFICE, Ft. Mitchell, Kentucky, for Appellee.

Before: CLAY, GILMAN, and SUTTON, Circuit Judges. GILMAN, J., delivered the opinion of the court in which SUTTON, J., joined. CLAY, J., delivered a separate dissenting opinion.


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During an August 14, 2013 rearraignment, Daniel L. Ushery, Jr. pleaded guilty to the distribution of crack cocaine. He was not prepared to plead guilty when the rearraignment first began. Instead of adjourning the rearraignment, however, the district court oversaw a back-and-forth negotiation between the government's attorney and Ushery's counsel concerning specific provisions of a potential plea agreement. Only after the government offered to strike the appeal-waiver provision from the proposed plea agreement--which occurred during the course of the colloquy with the district court--did Ushery express an intent to plead guilty. The court eventually accepted Ushery's plea and, in December 2013, sentenced him to 252 months in prison, an upward variance of 17 months from the top end of the applicable Sentencing Guidelines range.

Ushery timely appealed, arguing that (1) the district court violated Rule 11(c)(1) of the Federal Rules of Criminal Procedure's ban against judicial participation in plea discussions, (2) Ushery's exclusion from an August 6, 2013 pretrial teleconference violated his right to be present at every critical stage of the proceedings, and (3) his 252-month sentence was substantively unreasonable. For the reasons set forth below, we AFFIRM the judgment of the district court.


A. Underlying offense

Ushery, in April 2012, sold approximately half a gram of crack cocaine to a confidential

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informant in Campbell County, Kentucky for $100. When a police officer attempted to arrest Ushery for the offense, Ushery escaped in his car, running red lights and stop signs in the process. Only when Ushery crashed his car into a shed did the motorized chase end. He then fled on foot until he was eventually apprehended. The pursuing officer dislocated his shoulder in the process and subsequently retired due to the injury.

Upon Ushery's arrest, he was found to be in possession of small amounts of heroin, crack cocaine, and marijuana, as well as $329.50 in cash. Ushery also admitted to swallowing two bags of heroin during the pursuit. He further admitted to selling drugs in the past. At the hospital where he was transported, Ushery threatened to kill the arresting officer and the officer's family.

While in jail, Ushery called his girlfriend and asked her to retrieve money from a storage unit in Cincinnati, Ohio. The call was recorded by the police. After obtaining a search warrant, the police searched the storage unit and seized $8,781 in cash, a Marlin rifle, a .22 caliber handgun, ammunition, two boxes of baseball cards, and a digital scale.

A grand jury indicted Ushery in May 2013 for distributing crack cocaine, for possessing crack cocaine with the intent to distribute, and for possessing heroin with the intent to distribute, all in violation of 21 U.S.C. § 841(a)(1). The indictment also sought criminal forfeiture of the items seized from Ushery's person and from his storage unit. As part of the proceedings, the government filed a notice pursuant to 21 U.S.C. § 851(a)(1) that Ushery had been convicted of three prior felony drug offenses.

B. Arraignment and plea discussions

Ushery pleaded not guilty during his initial arraignment on May 16, 2013. On June 27, 2013, Ushery's counsel filed a motion for rearraignment, which the district court set for July 2. But Ushery again declined to plead guilty at the July 2 rearraignment, despite his counsel informing the court that Ushery had previously told counsel that " he was not going to trial" and that " he would have to plead." His counsel alerted the district court to Ushery's concern about being sentenced as a career offender, relating Ushery's statement to counsel that " he cannot take that much time."

During the rearraignment, Ushery expressed frustration with his counsel: " [My attorney is] making moves in this case without me. So I don't even feel comfortable with him representing me. . . . I would like, if possible, just to have another attorney." The court granted Ushery's motion for new counsel and scheduled a status conference for July 9, 2013.

At the July 9, 2013 status conference, Ushery's new counsel stated that he and Ushery were " on the same page," and that he had explained to Ushery that they would either " resolve [the case] by plea or . . . resolve it by trial." The district court set August 19, 2013 as the trial date and August 6, 2013 as the date of the final pretrial conference. It also set August 2, 2013 as the last day for Ushery to file a motion for rearraignment to enter a guilty plea. Ushery's counsel filed such a motion on August 2, at which time he also filed a motion to continue the rearraignment date. The court granted both motions and converted the August 6 pretrial conference into a telephonic status conference.

1. The August 6, 2013 teleconference

On August 6, 2013, the government's attorney and Ushery's counsel, but not Ushery, participated in a teleconference

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with the district court. The court called for the conference " to determine how [to] proceed going forward." Ushery's counsel informed the court that he had filed the motion for rearraignment " because there were concerns" about the court's deadline for doing so, but that Ushery had not yet made a decision. In discussing whether to push the trial date back a week, the court asked if Ushery needed the additional time " to try to work out final details of a plea agreement." Ushery's counsel responded affirmatively: " The resolution is a plea or a trial. Well, I can represent [that Ushery] doesn't want to go to trial, but he's concerned about signing. I said you have to make a decision. If I have a little more time, I can get it resolved."

In response, the court asked if Ushery's counsel thought " it would help to have a hearing with [Ushery] to discuss that with him." Counsel said yes. The court accordingly set a " tentative plea date" for August 14, 2013, and moved the trial date to August 26, 2013. It also stated that " if the defendant pleads guilty on [August 14], he will be entitled to all points for acceptance of responsibility. Any pleas after that date will jeopardize that."

2. The August 14, 2013 rearraignment

The district court began the August 14, 2013 rearraignment by informing Ushery that the government's attorney and Ushery's counsel had participated in a brief teleconference with the court " to discuss the potential of having [Ushery] enter a plea of guilty." So that Ushery would " receiv[e] all credits for acceptance of responsibility," the court stated that August 14 was " like a drop-dead date" for pleading guilty. Ushery's counsel replied by saying that Ushery would not be pleading guilty that day: " We're not at this point prepared to enter that plea." Just a few sentences later, Ushery's counsel reiterated the point: " At this stage, [Ushery]'s not ready to enter a plea. As I said to him, I'll be here on the 26th."

The district court, however, continued to engage with Ushery's counsel, and soon with Ushery himself, about the latter's decision regarding a potential guilty plea:

[USHERY'S COUNSEL]: . . . [Ushery] does not want to waive his right to appeal.
THE COURT: He doesn't need to waive his right to appeal.
[USHERY'S COUNSEL]: If I'm not mistaken, you're indicating you're satisfied with the plea agreement with the exception of paragraph 8. Is that accurate, Daniel?
THE DEFENDANT: Somewhat. I mean, I feel like there's too much time involved. But I would like to have a right to appeal, because I want my case [reviewed], because I feel like I'm being muscled into taking this time.
THE COURT: You don't need to be muscled to do anything, sir. You have the right to a jury trial. We have a jury trial on the 26th.
THE DEFENDANT: It's obvious I'm going to lose the jury trial.
THE COURT: All I've done is review the record. I know what the criminal complaint and the affidavit says. I know generally what the facts are going to be, as presented to the jury. Guilt or innocence is one determination. Sentencing is another determination. Of course, what you do today or potentially do today impacts the sentence, and I'm sure [your attorney] has told you that. I am not going to allow you, nor is [your attorney] going to allow you to be muscled into doing anything that you don't want to do yourself.

Ushery continued to articulate his hesitation with pleading guilty: " I've been informing

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[the government] that I didn't want to go to trial. I would just -- like 15 years is too stiff. . . . I'm trying to figure out a way to attack this career criminal [enhancement] without wasting nobody's time." The court responded by assuring Ushery that he could make whatever arguments he felt appropriate, while also acknowledging that the court would have to consider the Sentencing Guidelines, including possible career-offender status, in determining Ushery's sentence. Ushery was again advised by the court that he could plead guilty, with or without a plea agreement, or instead go to trial.

But the district court also warned Ushery about the consequences of failing to plead that day: " [T]oday is the last date that I'm going to permit you to plead guilty if you want to plead guilty and receive that third point for acceptance of responsibility," and explained the purpose behind the third point. The government's attorney then interjected as follows:

Judge, if our holdup [is that] Mr. Ushery would like to reserve the right to appeal his sentence, I'm willing to amend the plea agreement to allow him to appeal the length of his sentence. If that's our holdup here and if that's what Mr. Ushery was looking for in a plea agreement that he didn't have before, I'm willing to do that. I know that's not a negotiation with the Court, and the Court stays out of those things.
But Mr. Ushery, I guess my point is if the agreement is acceptable except for the language in paragraph 8, then we can change that to say that with the exception that the defendant may appeal the length of sentence, period. That way, whatever sentence is imposed, Mr. Ushery will have the right to appeal. If that's the thing holding Mr. Ushery up, I'm willing to make that concession, given the nature of the background of this case.

The district court responded, " Very well," before either Ushery or his counsel had said a word. After conferring with Ushery off the record, his counsel said to the court that Ushery " inten[ds] to enter a guilty plea, but he adamantly does not want to waive any appeal as it relates to the length of the sentence." The government then agreed to delete paragraph 8, which contained the appeal waiver, from the plea agreement.

With the agreement not yet finalized, the discussion next turned to forfeiture:

[USHERY'S COUNSEL]: We'll have to have a hearing on the forfeiture. We're not ...

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