UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
April 3, 1986
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
JACK ERNEST BAUGH, DEFENDANT-APPELLANT
Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 77 CR 10016- Robert D. Morgan, Judge.
Before BAUER, WOOD, and POSNER, Circuit Judge.
On July 7, 1977, Jack Ernest Baugh, a convicted felon, pled guilty to seven counts of unlawful receipt of a firearm, 18 U.S.C. § 922(h), pursuant to a negotiated plea agreement. Each count of the information on which Baugh's plea was based alleged simply that "on or about the 6th day of April, 1977" he had received a given weapon interstate commerce; one count differed from the other only insofar as it alleged receipt of a different firearm on that same day. In accordance with his plea agreement, the district court sentenced Baugh to seven consecutive five-year prison terms.*fn1 Over seven years later, Baugh moved to have his sentences on five of the seven counts vacated as illegal pursuant to Rule 35(a), Fed. R. Crim. P. he asserted that Counts I through V comprised but one offense*fn2 and thus his sentence violated double jeopardy's proxcritpion against multiple punishment. the district court denied Baugh's motion. He appeals. We reverse and remand the case to the district court for resentencing.
The government contends that Baugh's counseled guilty plea precludes consideration of his double jeopardy claim; because Baugh consented to multiple sentences at the time of his guilty plea, the government asserts he has waived his right to challenge the sentences. A guilty plea does not, however, waive a claim that an information or indicetment judged on its face, is constitutionally deficient in violation of the double jeopardy clause. The government's suggestion to the contrary ignores the plaint holdings of definitive decisions of both the Supreme Court and this court. Menna v. New York, 423 U.S. 61, 62, 46 L. Ed. 2d 195, 96 S. Ct. 241 (1975) (per curiam); McFarland v. Pickett, 469 F.2d 1277, 1279 (7th Cir. 1972).*fn3 See also United States v. Gaertner, 583 F.2d 308, 310-11 (7th Cir. 1978), cert. denied, 440 U.S. 918, 99 S. Ct. 1238, 59 L. Ed. 2d 469 (1979). See generally United States v. Ruttenberg, 625 F.2d 173 (7th Cir. 1980); United States v. DiFonzo, 603 F.2d 1260 (7th Cir. 1979), cert. denied, 444 U.S. 1018, 100 S. Ct. 672, 62 L. Ed. 2d 648 (1980). As the Supreme Court explained in Menna v. New York, 423 U.S. at 62 n. 2 (emphasis supplied):
...[A] counseled plea of guilty is an admission of factual guilty so reliable that, where voluntary and intelligent, it quit validly removes the issue of factual guilty from the case. In most cases, factual guilty is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilty and which do not stand in the way of conviction if factual guilty is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilty is established. The guilty plea, therefore does not bar the claim.
This court need not transcend the four corners of the information in this case in order to assess the validity of Baugh's claim. It is well-settled that, unless the government specifically proves a defendant either separately acquired or stored his weapons, he is presumed to have committed only one crime, not a series of crimes. Absent such proof, a district court may impose sentence for but one § 922(h) offense, United States v. Calhoun, 510 F.2d 861, 867 (7th Cir.), cert. denied, 421 U.S. 950, 95 S. Ct. 1683, 44 L. Ed. 2d 104 (1975); McFarland, 469 F.2d at 1278-79. See also United States v. Oliver, 683 F.2d 224, 232-33 (7th Cir. 1982). The information does not allege that Baugh either acquired his weapons separate or stored them in different locations. Nor, for that matter, did that government make any such allegations or present any such proof at the July 7, 1977 plea hearing.
The government does not deny the information's deficiency, but urges instead that it "might" have discovered or adduced the missing proof had Baugh not pled guilty. This argument is entirely irrelevant. Ultimate responsibility for drafting a proper criminal complaint and presently the minimal proof necessary to support a conviction on a guilty plea rests exclusively with the government, see Rule 11, Fed. R. Crim. P. It does not shift to the defendant when he agrees to plead guilty. McFarland 469 F.2d at 1279.*fn4
The government's argument that this court should nonetheless sustain the sentence because several other charges were dismissed in exchange for Baugh's plea begs the issue. Baugh pled guilty to a § 922(h) unlawful receipt of firearms charge and, despite his misguided agreement to the contrary, it is for that crime alone that he may be sentenced. A prosecutor has absolutely no authority to negotiate for or secure a sentence that exceeds the statutory maximum for the offense of which the defendant will be convicted.*fn5 Having negotiated the defective plea and voluntarily secured dismissal of the other charges, the government cannot now avoid the consequences of its acts. Launius, 575 F.2d at 772; ct. Pratt, 657 F.2d at 221.
We reverse the district court's denial of Baugh's motion to vacate his sentence on Counts I through V and remand the case for resentencing.*fn6
REVERSED AND REMANDED