[Posted February 3, 2011] I was away from the keyboard yesterday afternoon when word of US v. Lewis hit the wire, so I’ve only now had an opportunity to read it. It isn’t a Virginia case – it arose in the Eastern District of North Carolina – but it deals with the federal sentencing guidelines, and it isn’t your garden-variety US v. Booker issue. The outcome in this appeal is something that very, very seldom occurs. This one is important enough that criminal practitioners should take the time, right now, to click on the link above and read the 15-page opinion. This is what happened:

Lewis reached an agreement to plead guilty to one count of witness tampering; the other two counts in his indictment were to be dismissed. The agreement contained several specific provisions, including the prosecutor’s undertaking to recommend a three-point reduction; that agreement was specifically recited to be nonbinding on the court. Another provision stated the parties’ agreement that any prison term imposed would be served concurrently with a state-court sentence that Lewis was already serving.

At the plea hearing four days later, the judge explained to Lewis that the recommendations wouldn’t be binding on her. After ascertaining that the agreement represented the deal the parties had struck, she signed the agreement as “conditionally accepted” and ordered a presentence report.

So far, everything is going as planned all around. But at the sentencing hearing, the judge had a surprise for Lewis: Although she agreed to the three-point reduction, she abruptly rejected that part of the agreement that made the sentence run concurrently with the state term, sentencing an astonished Lewis to a consecutive term. She even anticipated the defense’s response, interjecting, “and this is over the defendant’s objection, I know”; but she held firm in her determination that Lewis would serve separate federal time. When Lewis’s lawyer spoke up, the following colloquy ensued:

Mr. Speaks [Lewis’s lawyer]: Judge, do you recall that the plea agreement includes language about —

The Court: I am very cognizant of the plea process, and, in this case, it is unusual for me not to adhere to what was agreed to, as it is not binding on the court. Are you making an argument that it is binding?

Mr. Speaks: No, your Honor. I understand that it’s not binding.

The Court: Okay. I have a responsibility to impose a sentence that is sufficient, but not greater than necessary, to comply with the purposes of sentencing. And it’s the Court’s determination that this consecutive sentence accomplishes that purpose. And, for that reason, I am differing from the agreement of the parties in imposing the sentence that I’ve imposed. [Emphasis added by Fourth Circuit]

Well, now. The prosecutor stood in silence as this exchange took place, recognizing the non-binding nature of plea agreements. Lewis wanted to appeal this unexpected turn of events. His lawyer looked into it and decided that the matter was hopeless, so he filed an Anders brief. Upon receipt of that brief, Lewis filed a supplement claiming that the sentence didn’t comply with the contractual terms of his deal with the prosecutor.

Normally at this point, the court reviews the case and issues an unpublished opinion, disposing of oral argument and summarily affirming the sentence. But after taking a look at the supplement, someone at the Fourth decided that this warranted a closer look. Lewis received replacement counsel by appointment, and the case was calendared for oral argument. (My faithful readers recognize that the Fourth hands out oral-argument invitations with tweezers, so just getting a slot on the argument docket is a victory of sorts.) At this point, the prosecutor is probably checking his hole card, wondering what could possibly be amiss with this plainly valid exercise of the district judge’s sentencing discretion.

In its opinion issued yesterday, the Fourth Circuit spells out what was amiss. It reverses the sentencing order and remands for further proceedings, holding that if the judge wanted to reject the sentencing order, she could do that – that’s the nonbinding aspect of the agreement – but once she accepted it, she couldn’t deviate from the terms spelled out in it. Sentencing Lewis to consecutive time instead of concurrent time amounted to a rejection of the plea agreement, and pursuant to statute, if the judge does that, Lewis has to be given the opportunity to withdraw his guilty plea.

So, how many reversals have you seen in appeals where an Anders brief is filed? In addition, the court has some measured but forceful words for the trial court, which seemed to attempt to short-circuit what turned out to be a perfectly valid objection. Nor is the prosecutor spared:

The government’s contention that the parties actually intended and understood the concurrent sentence provision to be a mere recommendation is — put mildly — nearly frivolous. Such an understanding runs counter to the plain and express terms of the Plea Agreement.

One other aspect of this ruling merits some discussion on a website that’s devoted to appellate advocacy: Why didn’t the defense lawyer’s acknowledgement that the agreement was nonbinding waive the objection for appeal? After all, he seemed to back down once the judge curtly asked whether he questioned the nonbinding nature. The answer is that while the recommendation really is nonbinding on the court, the court still has to decide to reject it; it can’t accept the agreement and then modify it. That’s basic contract law, which applies to plea agreements with special force.

So what happens now? I’m in serious danger of venturing into the realm of speculation here, so I’ll limit this discussion to the available choices facing the court on remand. As I read it, the court can re-sentence Lewis to a concurrent term, as the agreement provides; or else it can reject the agreement and give him an opportunity to withdraw his guilty plea.