A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

The UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT has ruled in the case of UNITED STATES OF AMERICA v. LORENZO MARTEZ LEWIS, Appellant, No. 09-4467, an appeal from the United States District Court for the Eastern District of North Carolina (February 2, 2011).

Lewis sought relief from the sentence imposed on him in the District Court on his conviction for witness tampering, in contravention of 18 U.S.C. § 1512(b)(1). After entering into a Plea Agreement with the government, Lewis was sentenced to 46 months in prison, to be served consecutively to a state sentence he was then serving. However, the parties had agreed, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, that Lewis’s sentence “shall be served concurrent with” his state sentence.

At the sentencing hearing, the district court did not expressly either accept or reject the Plea Agreement, and it did not address the question of whether Lewis should have the opportunity to withdraw his guilty plea. The Assistant United States Attorney stood mute during the defense lawyer’s objection to the court concerning the consecutive sentence.

Lewis contended on appeal that the district court’s imposition of a consecutive sentence contravened the Plea Agreement. The appellate court agreed with Lewis that the Plea Agreement was contravened.

A district court is not obliged to accept a particular plea agreement between the government and an accused, as it always has the authority to either accept or reject any agreement. Fed. R. Crim. P. 11(c)(5). If the court accepts a guilty plea, however, and thereafter decides to reject the underlying plea agreement that contains provisions of the type specified in Rule 11(c)(1)(A) or (C), it must, on the record, comply with Rule 11(c)(5). The court must advise the parties that it is rejecting the plea agreement, afford the defendant an opportunity to withdraw his guilty plea, and advise the defendant that, if his plea is not withdrawn, he may be sentenced more severely than contemplated by the plea agreement. That was not done in this case.

Note that the government sought dismissal of Lewis’s appeal on the basis of an appeal waiver in the Plea Agreement. The Court ruled that it will not enforce such a waiver when the government has failed to comply with its plea agreement obligations. The government’s obligation was to correct the lower court’s misunderstanding about the concurrent sentence provision. Therefore, the court declined to enforce the appeal waiver and vacated the sentence.

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