In a decision dated March 10, 2017, the Circuit issued a blistering decision vacating the district court’s denial of the defendant’s motion to withdraw his guilty plea in United States v. Johnson, No. 15-3498-cr (Jacobs, J., joined by Judges Cabranes and Parker), holding that the defendant’s plea to offenses requiring a mandatory life sentence was not made knowingly, voluntarily and intelligently.  Readers squeamish of benchslaps are advised to stop reading here: the panel called out the defendant’s asleep-at-the-wheel trial counsel by name no fewer than a dozen times, and chided the “robotic” prosecutor for delivering a prolix recitation of the sentence facing the defendant during plea allocation.  But the panel saved its strongest admonishment for the district court judge, whom it believed so incapable of handling the proceedings fairly and competently on remand that it directed the case to be reassigned.  In the end, only the defendant – a repeat offender facing felony drug trafficking charges – emerged from the opinion unscathed.

Defendant Calvin Johnson had been indicted in October 2014 for participation in a drug-trafficking conspiracy and for possession of a firearm.  Because Johnson had two prior convictions for possession of a controlled substance in the third degree, and the Government had filed an information that it would seek an enhanced penalty based on those prior convictions, 18 U.S.C. § 851 dictated that the only possible sentence for Johnson’s offenses was mandatory life imprisonment. 

The panel’s description of the plea allocution reads like it was written by Kafka:  The district court, appearing via teleconference, asked Johnson whether his counsel had advised him of the “potential sentences” (plural), and Johnson responded that he had.  The district court then asked the prosecutor to outline the potential minimum and maximum sentences.  The prosecutor elliptically mentioned that both the minimum and maximum terms were life imprisonment, but then obfuscated the terminality of the sentence by proceeding to describe (a) a prospect of supervised release; (b) the ten-year maximum sentence of Johnson’s second count; and (c) Johnson’s relinquishment of certain rights by pleading guilty, such as the right to hold public offices and obtain firearms.  To heighten the confusion, the district court then informed Johnson that “the Court can sentence you above the Guidelines, below the Guidelines or [e]ven outside of the Guidelines depending upon the facts . . . .”  The district court then asked for the applicable Guidelines ranges from the prosecutor, who proceeded to reel off a series of varying ranges before summarizing that “[a]ll of the guideline provisions I’ve described are nevertheless trumped by the fact that the statutory minimum is a life term . . . .”  The district court turned to Johnson and asked, “now that you’ve heard about the statutory sentence and Guidelines, do you still wish to plead guilty?”  Johnson said that he did.  Finally, the district court questioned Johnson’s attorney about the plea; defense counsel said his firm could think of “[n]o viable defense to the charges” and that he knew of no reason why Johnson should not plead guilty.  Contented, the district court entered the plea.

About four months later, Johnson wrote a letter to the district court stating that his attorney had misled him about the potential for a lower sentence and that he had misunderstood the district court’s references to sentencing outside the Guidelines during the plea allocution.  Had he been informed by his attorney that he was pleading guilty to sentences requiring a mandatory life sentences, Johnson asserted, he never would have entered a plea.  He therefore asked to withdraw his plea and that his attorney be replaced.  The district court denied Johnson’s requests without a hearing, citing Johnson’s statements under oath at the plea allocution that he understood the charges and plea and that defense counsel had advised him of the consequences of pleading guilty. 

As the uncanny cherry on top, at sentencing, Johnson’s counsel appealed to the court’s discretion in applying the Guidelines – even though the statutory minimum sentence rendered the Guidelines and judicial lenity inapplicable.

In considering Johnson’s position on appeal, the panel did not pull punches in describing the failings of the district court, the government, and defense counsel.  The district court failed to carry out its duty of informing Johnson of the maximum and minimum penalties as required by Rule 11 of the Federal Rules of Criminal Procedure.  In particular, the district court’s reliance on the prosecutor to lay out the potential sentences in “baffling complexity” and with “robotic references to (inapplicable) calculations and judicial discretion” signified a failure by the district court to ascertain that Johnson actually understood what he was pleading to.  It was “easy to see” how Johnson might have been confused and thus lacked “sufficient awareness of the . . . likely consequences” of his plea to render the plea valid under Brady v. United States, 397 U.S. 742 (1970).

The panel then parsed the plea allocution step by step to identify the incoherence in the information imparted to Johnson.  The prosecutor’s discourse on the ramifications of Johnson’s guilty plea “was technically sound, but confusing and difficult to reconcile with the inevitability of Johnson’s sentence,” and the “possible maximum” of which he spoke “was no mere possibility.”  Next, by describing judicial discretion under the Guidelines, the district court “compounded the confusion: and made it less likely Johnson “could appreciate that he would be sentenced to life no matter what.”  The prosecutor’s ensuing explanation of the ranges of potential sentences before indicating that the mandatory sentence “trumps” them was “long and technical” and did not “[e]xplain[] the statutory minimum in terms the defendant would understand” – an element “essential to a valid plea.”  All of this could have been avoided, the panel lamented, had the district court “clearly and unambiguously t[old] the defendant that, notwithstanding everything else being said, the consequence of his guilty plea would be a life sentence, period.”

The panel then focused on the complete illogic of Johnson’s decision to plead guilty given the absence of any discernable benefit to him, and pointed the finger at the district court.  “There might be some motive for a knowing and intelligent waiver in this situation, but none is obvious, and the district court did not attempt to elicit one.”  Particularly in light of how obviously irrational the plea was, the district court was obligated to ensure that Johnson understood “that pleading guilty means he will be sentenced to life in prison and that no other outcome is possible”; had that been explained, “it is unlikely that Johnson, if rational, would be taken the plea.”  Because the guilty plea had therefore not been made voluntarily, knowingly, and intelligently, the panel vacated the plea and the judgment of conviction based thereon.

Had the decision ended there, the panel’s unvarnished criticism of the district court and counsel would have been remarkable enough.  But the panel went further, directing that the matter should be assigned to a different judge on remand.  Citing the Circuit’s multi-factor standard for reassignment under United States v. Robin, 553 F.2d 8 (2d Cir. 1977), the panel concluded that reassignment was warranted here “to preserve the appearance of justice,” and it was not outweighed by any significant “countervailing considerations of efficiency and feasibility.”  The panel explained that “the appearance of justice would best be preserved” if Johnson could proceed to trial “before a judge who has not already accepted his guilt,” and there would be little duplication of efforts because “Johnson pleaded guilty without extensive earlier proceedings and the case does not appear to be factually complex.” 

The Second Circuit has expressed displeasure in recent months with how some district judges are conducting plea allocutions.  Last year, the Circuit took district judges to task for not following scripts when conducting Rule 11 guilty plea allocutions.  The Circuit stated in United States v. Pattee, 820 F.3d 496 (2d Cir. 2016), that “compliance with Rule 11 is not a difficult task” and explained that “[t]echnical errors can be avoided if a district or magistrate judge has a standard script for accepting guilty pleas, which covers all of the required information.”  The panel then identified four guilty pleas with imperfections that could have been avoided if the district judge had used a script. 

Here, the problem was not the absence of a script with the necessary technical requirements.  Rather, the district judge allowed the formality of the setting and the long list of Rule 11 requirements to overshadow the frightening reality that the defendant was pleading guilty to a crime with a mandatory life sentence rather than going to trial and taking a shot at an acquittal.  Given the apparent irrationality of such a decision, the circumstances required that the district court not read from a dry checklist, but instead make crystal clear to the defendant that he was embarking on a hopeless path by pleading guilty.  Read together with Pattee, the decision in Johnson suggests that the Circuit wants district judges to use checklists but also not to lose sight of common sense when assessing whether a plea is made knowingly, voluntarily, and intelligently.