Fourth Circuit: Plea Agreement Barred Prosecution of Dismissed Charges After Successfully Appealing Conviction
by David M. Reutter
The U.S. Court of Appeals for the Fourth Circuit held that the Government was barred by a plea agreement from pursuing dismissed charges after the defendant prevailed on appeal in challenging the charge to which he entered a plea of guilty.
Shelby Petties was indicted in 2015 by a federal grand jury on three counts: one count of failure to register as a sex offender (“Count One”) and two counts of committing a crime of violence, kidnapping, while having failed to register as a sex offender (“Count Two” and “Count Three”). Petties moved to dismiss counts two and three, arguing they failed to allege violations under 18 U.S.C. § 2250(d) because kidnapping under 18 U.S.C. § 1201 does not categorically qualify as a crime of violence.
After the U.S. District Court for the Eastern District of North Carolina denied that motion, the parties entered into a plea agreement. Petties entered a conditional guilty plea to Count Two and waived his appellate rights, except for the right to appeal the denial of the motion to dismiss the crime of violence issue. In return, the Government agreed to dismiss Count One and Count Three and “to not further prosecute [Petties] for conduct constituting the basis for the Indictment.” The District Court in January 2017 accepted the plea on the terms in the agreement, entered judgment, and sentenced Petties to 96 months imprisonment and 10 years of supervised release. Pursuant to the plea agreement, Count One and Count Three were dismissed.
As contemplated by the agreement, Petties appealed and argued that the District Court erred in denying his motion to dismiss. The case was ordered held in abeyance pending the decisions by the U.S. Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and United States v. Davis, 139 S. Ct. 2319 (2019), which invalidated on vagueness grounds the nearly identical residual clauses in 18 U.S.C. § 16(b) and 18 U.S.C. § 924(c)(3)(B), respectively. In light of those decisions, the Government conceded that kidnapping under § 1201 doesn’t qualify as a crime of violence, and moved to vacate the District Court’s judgment and remand of the case. The Fourth Circuit granted the motion.
On remand, Petties moved for immediate release from custody because the judgment had been vacated and the plea agreement barred the Government from pursuing the other counts. The Government disagreed, arguing it had been relieved of its obligations under the plea agreement once the judgment was vacated on appeal. The District Court denied release.
To preserve his ability to appeal, Pettis pleaded not guilty to all three counts and proceeded to a bench trial where he declined to present a defense. The District Court found him guilty on all three counts, but it dismissed Counts Two and Three as multiplicitous. As a result, Pettis stood convicted of failing to register as a sex offender. The District Court sentenced him to 96 months in prison and five years’ supervised release. Petties again appealed.
The Court first addressed the issue of whether the plea agreement permitted the Government to pursue charges dismissed in exchange for Petties conditional guilty plea in the event he successfully challenged his conviction on appeal. The Court observed that plea agreements are “grounded in contract law,” but they receive “greater scrutiny” than ordinary commercial contracts due to the waiver of a defendant’s constitutional rights. United States v. Edgell, 914 F.3d 281 (4th Cir. 2019). In addition, the Government is held to a stricter standard than the defendant for any “imprecisions or ambiguities” in plea agreements, according to the Court. United States v. Harvey, 791 F.2d 294 (4th Cir. 1986).
The Court stated that under the terms of the plea agreement, Petties was required to enter a guilty plea to Count Two, and he dutifully fulfilled his part of the deal. In exchange, the Government agreed to dismiss Count One and Count Three as well as “not further prosecute [him] for conduct constituting the basis” for the indictment as a whole. The parties entered into the plea agreement with the understanding that Petties would appeal his conviction on Count Two. Consequently, the possibility of a successful appeal was a contingency expressly contemplated by the parties, the Court reasoned.
“If the government wanted to reserve its right to pursue the failure to register charge should Petties’ challenge prove successful, it could have included language to that effect in the agreement — as the government often does,” the Court wrote. See, e.g., United States v. Sayer, 748 F.3d 425 (1st Cir. 2014) (Government expressly reserved right to reinstate and prosecute a dismissed charge if defendant were successful in challenging conviction). Yet, the Government failed to include any such provision in the agreement. Therefore, the Court ruled that the Government cannot prosecute Petties on Count One.
The Court rejected the District Court’s reasoning that since there wasn’t an explicit provision in the plea agreement barring Petties from being prosecuted on Court One in the event he successfully challenged his conviction on Count Two, the Government was entitled to proceed against him on Count One. The Court explained that its foregoing conclusion represents the “fairest” interpretation of the agreement. But even if the plea agreement were ambiguous on this issue, the provision in question would be construed against the Government and in favor of Petties. See United States v. Barefoot, 754 F.3d 226 (4th Cir. 2014) (ambiguities in a plea agreement are “construed against the government as its drafter”).
Thus, the Court held that the terms of the plea agreement barred the Government from pursuing Count One on remand.
Accordingly, the Court vacated Petties’ conviction and sentence and remanded to the District Court with instructions to order his release from federal custody. See: United States v. Petties, 42 F.4th 388 (4th Cir. 2022).
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