The opinion of the court was delivered by: Gilbert, District Judge
This matter comes before the Court on the government's motion to stay district court proceedings pending appeal (Doc. 165). Though defendant Jerry Vinyard (Vinyard) has not responded, the Court is prepared to rule.
This Court orally sentenced Vinyard to 240 months' imprisonment on May 3, 2007. The next day, it released Vinyard on bond pending his designation by the Bureau of Prisons. (Doc. 149). Counsel for the government filed a notice of appeal of this Order on May 7, 2007, and, two days later, moved to stay Vinyard's release pending a ruling from the Seventh Circuit Court of Appeals. (Doc. 152, 155). This Court, in turn, on its own motion, vacated Vinyard's oral sentence, vacated his guilty plea, and appointed him new counsel. It set the case for a hearing on June 14, 2007. (Doc. 156).
On June 5, 2007, counsel for the government filed a notice of appeal of the Court's order vacating Vinyard's sentence and plea. (Doc. 164). The same day, counsel filed the motion now before the Court. "Given the quick approach of [the] June 14th [hearing]" counsel for the government filed an "Emergency Motion to Stay District Court Proceedings" in the appellate court on June 12, 2007. United States v. Vinyard, No. 07-2304 (7th Cir. 2007).
Counsel for the government recognizes in his brief that his filing of a notice of appeal divests this Court of jurisdiction over the case, Rakovich v. Wade, 834 F.2d 673, 674 (7th Cir. 1987), but because the Court previously set the hearing on June 14th, he felt it necessary to file his emergency motion with the appellate court.
The Court recognizes the effect of counsel's appeal and, for that reason, GRANTS his motion to stay and CANCELS the hearing set for June 14th. Given the jurisdictional divestiture accomplished by the filing of the notice of appeal, the Court questions the need for a motion to stay in this Court and an emergency motion in the appellate court -- apparently the Court acts too slowly in managing its calendar for counsel's liking. In any event, the Court now takes this opportunity to expound upon its rationale for vacating Vinyard's conviction and plea.
As it explained in its May 10th Order, "Upon reflection of the colloquy this Court had with Defendant at his sentencing hearing and the concern in the mind of the Court as to whether [he] knowingly and voluntarily agreed to the findings contained in the presentence report as [they] relate to relevant conduct, this Court went back and reviewed the transcript of the sentencing hearing." (Doc. 156 at 1). After reviewing the sentencing transcript and the transcript of Vinyard's plea hearing, the Court realized that it "failed to follow the procedural dictates of § 851(b) and (c) in that [it] failed to inform [Vinyard] of his opportunity to challenge the prior conviction which the Government used to enhance the Defendant's sentence." (Id.). Because the conviction upon which counsel for the government relied was 22 years old, the Court concluded that its failure to warn Vinyard of his rights posed due process problems, "[n]otwithstanding [the] provisions of § 851(e) . . . and [United States] v. Arango-Montoya, 61 F.3d 1331 (7th Cir. 1995)." (Id. at 2). The Court's review of the sentencing hearing transcript solidified its belief that Vinyard wanted to challenge portions of his relevant conduct. It appeared then, and appears now, quite likely that Vinyard did not "knowingly and voluntarily agree to the relevant conduct contained in the presentence report." Id. "In an effort to be overly cautious and to make sure [Vinyard's] procedural rights are protected so as not to have this case come back" before the Court, the Court granted the relief described above. Id. at 3.
Despite the fact that the Court did not enter a written judgment in this case, counsel believes that, given Rule 11(e) of the Federal Rules of Criminal Procedure and the Seventh Circuit's decision in United States v. Ogden, 102 F.3d 887 (7th Cir. 1996), Vinyard's "plea may be set aside only on direct appeal or collateral attack." As counsel has reminded this Court and the Court of Appeals, the question is most assuredly one for the Court of Appeals to make. Certain aspects of this case, however, merit further comment.
As an oath-bound representative of the federal government, the Court is puzzled why an Assistant United States Attorney would not be interested in making sure the constitutional, procedural, and substantive rights of every defendant are protected -- especially in the case of man facing a mandatory minimum sentence of twenty years, which given his age, will likely be a life sentence.
Even a casual review of the transcript of the sentencing hearing clearly shows that Vinyard was troubled by the relevant conduct calculation and wanted to contest it. At his pragmatic best, counsel for the government told Vinyard at the sentencing hearing that there was no realistic possibility that his relevant conduct figure would be less than 500 grams. This, of course, is not the point. If Vinyard did indeed wish to contest his relevant conduct, he had a right to do so. Unfortunately, this Court went along with counsel for the government and counsel for Vinyard and helped prevent Vinyard from exercising his rights under the law. The atmosphere in the courtroom during these proceedings was confusing, hasty, and, at times, chaotic. The expression on the defendant*s face alone should have been enough to tell the Court to stop the proceedings and continue the sentencing hearing. While the Court granted Vinyard a short break to consult with his attorney, it should have continued the sentencing hearing and allowed him to pursue his objections. The Court encourages the Court of Appeals to review the sentencing transcript, which the Court has attached to this Order.
Perhaps more troubling was this Court's failure to inform Vinyard, as required by the statute, of his right to challenge his prior conviction. While the Court admits that it does not habitually make this warning in its sentencing hearings, the statute directs courts to do so to make sure that a defendant waives his right to challenge his prior conviction knowingly and intelligently. In 99% of cases, the Court's failure to warn is probably harmless error -- the Court has not seen the issue raised in an appeal of one of ...