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United States v. Glosser

September 29, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
GREGORY A. GLOSSER, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Central District of Illinois. No. 07 CR 20042-Michael P. McCuskey, Chief Judge.

The opinion of the court was delivered by: Williams, Circuit Judge.

ARGUED NOVEMBER 5, 2009

Before BAUER, MANION, and WILLIAMS, Circuit Judges.

The government appeals from a 121-month sentence a defendant received for attempting to possess more than 500 grams of methamphetamine, arguing that the district court committed procedural error by announcing and promising that it would impose the mandatory minimum sentence during the change of plea hearing, before it knew the advisory guidelines range or had heard either party's argument regarding the sentence. Although we recognize that the court's references to the ten-year mandatory minimum stemmed from a desire to ensure the defendant understood the minimum time he faced (he had previously been incorrectly informed that he faced a statutory minimum of five years), we agree with the government that the premature announcement of sentence constitutes procedural error that requires we vacate the sentence and remand for further proceedings.

I. BACKGROUND

After being arrested while possessing methamphetamine, John Sims agreed to cooperate with law enforcement authorities and identified Gregory Glosser as a person selling methamphetamine in the Charleston, Illinois area. Sims wore a wire during a meeting with Glosser, and Glosser expressed his desire for methamphetamine to resell. Glosser also said that if Sims could not obtain the drugs, Glosser would go to Oklahoma to get the methamphetamine on his own. About a week later, law enforcement agents arranged for Sims to meet with Glosser. Sims told Glosser he had a pound-anda-half of methamphetamine in the packages he had with him, and Glosser responded that they would make about $57,000 when they resold it. After Sims gave the packages to Glosser, law enforcement agents placed Glosser under arrest. He was read his Miranda warnings and admitted that he intended to resell the methamphetamine in gram quantities.

Glosser was charged with a single count of attempting to possess 500 or more grams of a substance con- taining methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). He entered a plea of not guilty. The morning that trial was to begin, however, Glosser's attorney told the court that he had decided to plead guilty. The court then engaged in a lengthy discussion with Glosser to ensure he was pleading guilty knowingly and voluntarily. At one point, the court asked the prosecutor whether Glosser had any felony convictions, and the prosecutor responded that he was not aware of any. Defense counsel also agreed, but when the court asked Glosser, Glosser volunteered that he pled guilty to a felony count of obstruction of justice in 1987. When the court asked whether that meant he had a state court felony for which he had received probation, Glosser answered that was not correct and said his sentence had been sixty days in jail.

Reading from the government's original filing with the court, the judge told Glosser that by pleading guilty, he would receive a mandatory minimum sentence of five years in prison with a maximum term of forty years. The prosecutor interjected and stated that he had explained to defense counsel that morning that under the applicable statute, the mandatory minimum was actually ten years' imprisonment, with a maximum of life imprisonment. Glosser responded that he was not aware of the ten-year mandatory minimum and stated he had been told when he was arraigned before a different judge that he faced five to forty years' imprisonment. The prosecutor stated that Glosser would not receive a forty-year sentence, and the court clarified that the mandatory minimum sentence was ten years.

Glosser responded that he understood, but then said that he had been under the impression during the ten months since his arraignment that he faced five to forty years in custody. The court explained that the applicable minimum sentence was ten years unless he cooperated and the government made a motion for a downward departure, and the court also made clear that the government had not promised to make such a motion. The court further stated, "The only promise or prediction that I can make to you at this moment is there is nothing that would cause me, from what I've seen in this case and have heard of your background, nothing that would cause me to sentence you any more than what Congress mandates I must do, a minimum of ten."

After again clarifying that the government had made no promise that it would move for a downward departure, the court stated, "Well, I've given you the biggest promise I can give you. It's not a life case. It's not a 40-year case. It's a 10-year case. So that's as good as I can give you, but I can't give you one day less than ten years." Glosser reiterated his position that the way the indictment was written was contradictory to what he was being told, and the court again explained that the charge carried a ten-year mandatory minimum. As the court went through the elements of the charge and asked Glosser if he had any questions, Glosser responded that he did have a question-the way he read the statute, he said, possessing 100 to 999 grams of a mixture containing methamphetamine for a person with no prior drug convictions carried a five to forty-year sentence. The court once again explained that the charge against Glosser carried a ten-year minimum. Glosser replied that he understood and stated that he still wished to plead guilty.

The court then discussed the consequences of giving up the right to a jury trial, and the government established a factual basis for the plea. The following exchange then occurred:

Court: With no force, threats, or promises other than the Court saying to you that if you plead guilty and I accept it, the minimum sentence would be ten years, and that would be the sentence that I would impose, are you pleading guilty under all of those factors because you did, in fact, do what the government's charged you with, and you are guilty of the matter in the indictment?

Glosser: Yes, your Honor.

AUSA: Your Honor, if I may, I just want to be clear because I had heard you when you stated initially that your best guess would be that you would impose that minimum ...


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