Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:99 cr 168-1--Rudy Lozano, Judge.
Before Ripple, Manion, and Rovner, Circuit Judges.
The opinion of the court was delivered by: Per Curiam
Shukri Shaker pleaded guilty to possession of a firearm by a felon as part of a plea agreement, but sought to withdraw his plea before the district court accepted it. The district court denied Shaker's motion to withdraw his plea, and Shaker appeals. We reverse and remand.
After federal agents learned that Marvin Harris was selling crack cocaine from John's Food Store in Gary, Indiana, they arranged a series of controlled buys through a cooperating witness. After the fourth buy the agents executed a search warrant for the store, seizing cash, crack cocaine, and guns from the check-out area and detaining Shukri Shaker, who was working as a cashier. Shaker cooperated with the agents, directing them to crack cocaine hidden in a false-bottom can behind the check-out counter and explaining that although he knew of Harris's crack dealing, he was not involved. Shaker told the agents that he worked for his brother Gamal, the store's owner, and that when he asked Gamal about Harris's activities he was told to mind his own business. Harris too was interviewed; he told the agents that he shared the profits from his drug sales only with Gamal, not Shaker, but conceded that both brothers assisted his sales by exchanging cash for crack from behind the check-out counter.
In July 1999 a grand jury returned a three-count indictment charging Shaker, Gamal, and Harris with conspiracy, possession of crack with intent to distribute, and maintenance of a crackhouse. The government, however, agreed to dismiss the indictment as to Shaker in exchange for his guilty plea to a one-count information charging Shaker with possession of a firearm by a felon, 18 U.S.C. sec. 922(g)(1). That plea agreement made no mention of the drug sales. After a change-of-plea hearing on November 4, 1999, the district court, despite finding Shaker competent and his plea knowing, voluntary, and supported by a sufficient factual basis, explicitly deferred acceptance of Shaker's plea:
I am deferring my decision on acceptance or rejection of your plea of guilty and your Plea Agreement until after I've had an opportunity to study the Presentence Report. If your plea of guilty and your Plea Agreement are then accepted, I will so advise you.
On December 15, the facts underlying the soon-to-be dismissed drug charges resurfaced in the PSR: the probation office determined that in violating sec. 922(g)(1) Shaker possessed the firearms "in connection with" the drug offenses and proposed a "cross reference" to a drug crimes guideline. See U.S.S.G. sec.sec. 2K2.1(c)(1)(A); 2D1.1. The application of the drug guideline resulted in a minimum term of imprisonment of 84 months, four times the minimum term contemplated by the firearms guideline. On December 23 the government objected to the cross reference to the drug guidelines, arguing in identical language in both a written objection to the PSR and in a memorandum to the probation officer:
[Sec.] 2K2.1(c)(1) requires the defendant to use or possess a firearm during the commission of another offense. The government has no evidence that the defendant used or possessed a firearm during any of the crack sales. The government believes this section is not applicable to the defendant.
Additionally, the government does not believe that the drug dealing is "relevant conduct" to the crime of a Felon in Possession of a Firearm, or that it falls under the "common scheme" or "same course of conduct" as defined in [sec.] 1B1.3(a)(2) and the Commentary.
Shaker filed a similar objection on January 5, 2000, but the probation officer defended his initial recommendation in a January 14 addendum to the PSR. Shaker then re-entered negotiations with the government, and on February 4 the government moved to postpone Shaker's sentencing to allow time for Shaker to provide additional information and for the government to file a motion for downward departure based on Shaker's substantial assistance to authorities. See U.S.S.G. sec. 5K1.1.
The government, though, never moved for a downward departure, and on October 4 Shaker moved to withdraw his guilty plea, arguing that the government led him to believe during plea negotiations that he would receive a lesser sentence unaffected by the conduct related to the dismissed drug counts. Shaker filed an amended motion on October 10, arguing that the government agreed to limit his accountability to the facts stipulated in the plea agreement and that any sentence based on additional facts made his guilty plea involuntary. The amended motion also noted that the district court had deferred acceptance of Shaker's plea pending review of the PSR:
13. Further, the Court upon taking of said Plea, advised the Defendant that it would advise the Defendant as to whether his Plea would be accepted or rejected on his Sentencing Date subject to receipt of said Pre-Sentence Investigation Report. As such, the Court can either ...