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United States v. Lovell

April 8, 1996

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

DENNIS W. LOVELL, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois. No. 94 C 300075--William L. Beatty, Judge.

Before COFFEY, EASTERBROOK, and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

ARGUED FEBRUARY 28, 1996

DECIDED APRIL 8, 1996

Dennis W. Lovell, an employee of the First Interstate Casualty Company, was indicted in the Southern District of Illinois for a single count of wire fraud, in violation of 18 U.S.C. sec. 1343. Lovell entered into a plea agreement and plead guilty to the crime charged. The district court accepted the plea and thereafter sentenced Lovell to ten months imprisonment to be followed by a three-year term of supervised release and imposed a $4,000 fine as well as a $50 special assessment fee. Lovell appeals his sentence imposed in the Southern District of Illinois, claiming that under the terms of his plea agreement (1) he was to be sentenced in the United States District Court for the District of Arizona and (2) he cannot be sentenced until all cases arising from the same set of events that gave rise to his conviction are completed. We affirm.

I. BACKGROUND

The dispute in this case concerns paragraph 8 of the 9 paragraph Plea Agreement. This paragraph consists of two sentences. The first sentence states: "In the event that the defendant enters into a plea agreement in the District of Arizona . . . the government agrees to recommend that the sentence imposed [in the present case] shall run concurrent with any sentence imposed . . . in the District of Arizona." The second sentence reads: "The government further agrees to file a motion pursuant to [Federal Rule of Criminal Procedure 20] to transfer the instant matter to the District of Arizona for sentencing purposes but in no event shall the motion be filed prior to the completion of the trial or entry of a guilty plea, whichever may be the case, by any defendant charged in connection with the scheme described in the instant information." *fn1

After defendant entered a plea of guilty to the crime charged and the court accepted the plea, the court adjourned the case for sentencing. At the sentencing hearing, Lovell asserted that the Plea Agreement gave him the absolute right to be sentenced in the District of Arizona. He failed to state that this right was premised on a charge being filed against him in the District of Arizona. The government agreed that the Plea Agreement gave him a right to be sentenced in Arizona under certain circumstances, but countered that the agreement conditioned the right to be sentenced in the District of Arizona on Lovell's being prosecuted in that jurisdiction, which never occurred. The parties' dispute centered upon whether the second sentence of paragraph 8 was a stand alone provision or one that was to be read in connection with the conditional first sentence of that paragraph. After hearing testimony and argument from both parties, the district judge stated "that the agreement was entered into between the Government and the defendant based on the understanding that there was going to be a prosecution in Arizona." (Sentencing Hearing Transcript at 31.) The court, stating that "it is quite clear that there is not . . . now a case pending nor is there any case contemplated in the district of Arizona at this time," id, proceeded to sentence Lovell, imposing a ten month prison term, a three-year period of supervised release, and a fine and assessment totaling $4,050.

Lovell also argued at the sentencing hearing that the Plea Agreement prevented the court from imposing sentence until other cases arising out of the same events were completed so that he could earn a downward departure from the prescribed sentence pursuant to sec. 5K1.1 of the Sentencing Guidelines. The court rejected this argument. The court did not deal with the question of why the language of the Plea Agreement did not impose upon the court an obligation to wait until the completion of other cases before sentencing Lovell. Rather, the court stated that it could not see what Lovell could gain in terms of his ultimate sentence by the court's waiting to impose it. The court's position in this regard seems to have been based upon the fact that the government stated that the United States Attorney for the Southern District of Illinois would not be recommending a sec. 5K1.1 departure. The court can only depart from the guidelines under this provision upon a United States attorney's recommendation.

II. ANALYSIS

A. Transfer For Sentencing

The parties and the district court all took the position that a case need not be pending in a given district or another district in order for a case to be transferred there pursuant to Federal Rule of Criminal Procedure 20. *fn2 However, there is no authority under Rule 20 (or elsewhere for that matter) for a district court to accept a guilty plea from a party and then transfer the case to a different jurisdiction for sentencing.

Subsections (a) and (b) of Rule 20 discuss the transfer of cases. Both of these provisions discuss the waiver of trial in the transferor district and the entry of a plea and the disposition of the case in the transferee district. This language does not authorize a transfer for the purpose of imposing sentence when there is no case pending in the transferee district. Therefore, the District Court for Arizona would have no jurisdiction to sentence Lovell when he was convicted in the Southern District of Illinois of the only crime with which he was charged. Thus, regardless of the terms of the Plea Agreement, we would have no authority to grant the alternative relief that Lovell seeks, vacation of the sentence imposed by the District Court for Southern Illinois and transfer to Arizona for sentencing only. The only relief we could give is to vacate both the guilty plea and sentence and then transfer the entire case to Arizona. Because we determine that Lovell is entitled to no relief, we do not take this step either.

Rule 20 requires the written consent of the United States attorneys for both the transferor and transferee district. Lovell admitted at oral argument that he never obtained the written consent of the United States Attorney for Arizona. Moreover, the United States Attorney for Arizona would have had no authority to agree to a transfer for sentencing purposes only, for there never was a case against Lovell pending in Arizona. In addition, Lovell conceded at oral argument that the United States Attorney for Southern Illinois had orally withdrawn his consent to the transfer, upon realizing that no case was going to be filed in the District of Arizona. Since ...


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