Seventh Circuit Vacates Federal Drug Conspiracy Conviction Because District Court Failed to Ensure Defendant Understood ‘Agreement’ Element of Conspiracy and Failed to Ensure Factual Basis for Guilty Plea
by Mark Wilson
The U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Indiana committed plain error in accepting a guilty plea without ensuring that the defendant understood the nature of the charged drug conspiracy offense and that there was an adequate factual basis for the guilty plea on that charge.
In September 2018, Indianapolis Police and Drug Enforcement Agency investigators executed a search warrant of the home of Thomas Goliday, recovering assorted drugs and a loaded handgun. During the search, Goliday waived his Miranda rights and agreed to speak with investigators in hopes of obtaining lenient treatment from prosecutors for cooperating. Goliday admitted that the drugs and gun were his. He also told investigators that he had purchased two ounces of heroin a week for a year from the same supplier and sold it to other users in smaller amounts.
Prosecutors charged Goliday with three counts of possession with intent to distribute drugs – one count each of fentanyl, methamphetamine, and crack cocaine – in violation of 21 U.S.C. § 841(a)(l). They also charged him with conspiracy to distribute more than 1,000 grams of heroin based on his admission that he bought two grams a week for the past year. They also filed an information under 21 U.S.C. § 851, notifying Goliday that, based on a prior felony drug conviction he faced an enhanced sentence, if convicted.
Goliday pleaded guilty. Without the conspiracy charge, he faced a statutory minimum 10- year sentence and a maximum of life. The conspiracy charge, however, increased the minimum sentence to 15 years or 180 months. While the federal Sentencing Guidelines recommended a sentence between 168 and 210 months, the conspiracy charge narrowed the range to 180 to 210 months.
At the plea hearing, the District Court sought to fulfill its obligations under Federal Rule of Criminal Procedure 11(b) by describing the charges to which Goliday was pleading guilty and making an independent judicial determination that there is a sufficient factual basis to conclude he committed the offenses. During his plea colloquy, Goliday said the allegation that he possessed 1,000 grams of heroin was not true. At that point, the following exchange took place:
COURT: Well, let me ask you this, do you agree that the government would be able to prove those facts that [it] just read into the record at a trial beyond a reasonable doubt if this case were to go to trial?
GOLIDAY: I don’t see how. There was a statement that I made to the authorities to help them with my supplier to help him get convicted. The statement that I made to the police was just to tell them where I was getting my drugs from and that boosted that quantity up like that. I didn’t have that much drugs. I only had 80 grams of dope in my house at that time. The 1,000 grams, I made a statement to the agents telling them that they can go bust this guy and get the drugs from him and they asked me how much I was getting from this guy and I told them and they turned around and used that to boost my quantity up and put me in a conspiracy because when I first got locked up it wasn’t a conspiracy at all.
COURT: Okay. Well, the question, then, is that there is no allegation that you had 1,000 grams or more of a mixture or substance that contained a detectable amount of heroin. It alleges that there was a conspiracy to possess with intent to distribute and to distribute heroin and that the conspiracy involved 1,000 grams or more.
GOLIDAY: Yes, sir.
COURT: Okay. And the facts otherwise set forth in the factual basis [the Government] read are accurate and true?
GOLIDAY: Yes, sir.
Despite Goliday’s apparent confusion, the District Court determined there was a sufficient factual basis for him to plead guilty to the conspiracy charge as well as the three substantive drug possession charges and sentenced him to four concurrent 180-month sentences. Goliday timely appealed, arguing that the District Court erred by not ensuring he understood the conspiracy charge and by failing to confirm the existence of facts sufficient to support the conspiracy charge.
Goliday did not object to the factual basis or move to withdraw his guilty plea at the plea hearing, so the standard of review is that of plain error, the Court stated. See United States v. Vonn, 535 U.S. 55 (2002); Fed. R. Crim. P. 52(b). In order to satisfy this demanding standard he must show that the error (1) was “clear and obvious,” (2) prejudiced his substantial rights, and (3)”seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Triggs, 963 F.3d 710 (7th Cir. 2020).
The Court noted that Rule 11(b)(1)(G) requires the District Court to confirm that the defendant understands the “nature of each charge” to which he is pleading guilty. This is an essential due process requirement to ensure that the guilty plea is “truly voluntary.” McCarthy v. United States, 394 U.S. 459 (1969). Additionally, under Rule 11(b)(3), the District Court must make an independent judicial determination “that there is a factual basis for the plea.” Failure to substantially comply with either of these requirements, may be grounds for vacating the plea. See Rule 11(h); United States v. Blalock, 321 F.3d 686 (7th Cir. 2003) (requiring only substantial compliance with, not literal adherence to, the commands of Rule 11).
Turning to the District Court’s obligation to ensure Goliday understood the nature of the charges against him – specifically, the conspiracy charge – during the plea hearing, the Court stated that when there is general confusion about the elements of the charged offense the guilty plea cannot stand. United States v. Schaul, 962 F.3d 917 (7th Cir. 2020). In particular, because of its complexity, defendants are often confused about the elements of a drug conspiracy under § 846. United States v. Neal, 907 F.3d 511 (7th Cir. 2018).
The Court explained that the “agreement” requirement of a conspiracy is the primary source of confusion. An ordinary buyer-seller relationship alone does not satisfy the agreement requirement for a criminal conspiracy because “the buyer’s only purpose is to buy and the seller’s only purpose is to sell: the buyer and seller lack a shared criminal goal.” See id. The Court further explained that a conspiracy under § 846 requires “evidence of an agreement to commit a crime other than the crime that consists of the sale [of drugs] itself.” United States v. Johnson, 592 F.3d 749 (7th Cir. 2010); United States v. Vizcarra-Millan, 15 F.4th 473 (7th Cir. 2021); United States v. Duran, 407 F.3d 828 (7th Cir. 2005).
After reviewing Goliday’s plea colloquy, the Court determined that it was marked by general confusion. Specifically, the Court stated that Goliday was confused on two points: (1) he didn’t understand that he faced charges for entering into a “more wide-reaching partnership with his supplier beyond an agreement to buy particular quantities of heroin” and (2) he didn’t understand that by conceding the “agreement” element he would be “held legally responsible for all drug amounts traceable to that illegal agreement, not just those quantities he possessed at the time of his arrest.” Thus, the Court concluded Goliday didn’t understand the nature of the conspiracy charge, so the District Court committed clear and obvious error by not ensuring he truly understood.
Similarly, the Court found fault with the District Court regarding its obligations under Rule 11(b)(3). It is settled law that drug purchases alone are insufficient to satisfy the agreement element for a conspiracy under § 846, yet purchases alone are all the Government has for the conspiracy charge, the Court stated.
The Government argued that evidence of Goliday’s regular buys over the course of a year for resale establishes the factual basis for the conspiracy plea. The Court rejected that argument, stating that it’s done so before and doing so again. It explained that large drug buys involving standardized transactions over a long period of time presents the jury with “two equally plausible inferences” – it’s a conspiracy or an ordinary buyer-seller relationship. Johnson; see also United States v. Colon, 549 F.3d 565 (7th Cir. 2008) (rejecting argument that any “wholesale customer of a conspiracy is a co-conspirator per se”). Thus, the Court concluded that the District Court “plainly erred by accepting Goliday’s plea without an adequate factual basis.”
Because plain error was the standard of review in this case, the Court pointed out that Rule 11 errors alone do not entitle Goliday to relief. He must also establish that the errors affected both his substantial rights and “the fairness, integrity, or public reputation of the judicial proceedings.” Triggs. To meet that burden, Goliday must show that there’s a reasonable probability that he would not have pleaded guilty to the conspiracy charge but for the errors. See United States v. Sura, 511 F.3d 654 (7th Cir. 2007) (citing United States v. Dominguez Benitez, 542 U.S. 74 (2004)). Reviewing courts look to the record in determining whether the burden has been met. See Dominguez Benitez.
The Court stated that if Goliday had understood the elements of conspiracy, he would have realized that the Government lacked the evidence to prove beyond a reasonable doubt that he agreed to participate in a joint enterprise with his suppler to engage in some criminal activity other than the individual drug purchases themselves. With that knowledge, there was a reasonable probability that Goliday would have “assessed his strategic position at trial differently,” so his substantial rights were affected, the Court determined.
Finally, turning to the issue of whether the error impugned the “fairness, integrity, or public reputation of the judicial proceedings,” the Court determined that it did. It stated that the District Court failed to ensure that Goliday had “real notice of the true nature of the charges against him,” which the U.S. Supreme Court characterized as “the first and most universally recognized requirement of due process.” Bousley v. United States, 523 U.S. 614 (1998). Importantly, the Court explained that the District Court’s failure to ensure there was an adequate basis for Goliday’s guilty plea “means the court may have allowed Goliday to plead guilty to an offense of which he is actually innocent.” See United States v. Olano, 507 U.S. 725 (1993).
Accordingly, the Court vacated the conspiracy conviction and remanded for further proceedings, and because the mandatory minimum sentence for the conspiracy conviction may have increased the sentence on the other three substantive drug convictions, the Court vacated them and remanded for plenary resentencing. See: United States v. Goliday, 41 F.4th 778 (7th Cir. 2022).
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