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07-2442 U.S. v. Griffin

By: dmc-admin//April 7, 2008//

07-2442 U.S. v. Griffin

By: dmc-admin//April 7, 2008//

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Plea Withdrawal
Sufficiency of Rule 11 colloquy; sentencing; allocution rights

A defendant may not withdraw his guilty pleas on the ground that the district court conducted a deficient Rule 11 colloquy, when the judge failed to advise him of his rights to present evidence and to compel witnesses, and that the court has the authority to depart from its calculated sentencing guidelines range, because the defendant cannot show that, but for the district court's omissions, there was a reasonable probability that he would not have pled guilty.

Griffin highlights no evidence showing that he would not have pled guilty; he merely asserts, without elaboration, that the rights the district court overlooked are "fundamental" and "affect the fairness of the proceedings." After reviewing the record, we see nothing suggesting that Griffin would not have pled guilty, particularly when the evidence that he had a previous felony conviction and possessed an unregistered shotgun was overwhelming, and when he informed the court that he was pleading guilty to the firearms charges because he was, in fact, guilty.

"This is not the first time that we have addressed a challenge to a Rule 11 colloquy when counsel failed at the plea hearing to inform the district court of its omissions. And it is difficult to understand why counsel here did not help the court avoid correctable omissions. Confusion over Rule 11's requirements should not be the reason; the Rule is not new, unclear, or even difficult to access. Not only should counsel for the government, as well as for the defendant, be familiar with Rule 11 before even walking into a plea hearing, but it would also be a good practice for them to have a copy of the Rule handy so they can follow along with the court's colloquy. That way, if the court overlooks one of the Rule's provisions, counsel can bring the omission to the court's attention and avoid any later grief. We would like to think that any sentencing judge would not only correct the omissions that he or she made while conducting the colloquy, but would appreciate the opportunity to do so. …

"[C]ounsel have a professional duty to speak up if they notice that the court happens to forget a portion of the colloquy. See [Citations to other jurisdictions omitted] Wis. Sup. Ct. Rules, Ch. 20(b), R. 20:3.3(a)(3)."

However, the court plainly erred when it violated defendant's right to a meaningful allocution by announcing the sentence it intended to impose before affording him the opportunity to speak.

Convictions affirmed; remanded for resentencing.

07-2442 U.S. v. Griffin

Northern District of Indiana, South Bend Division, Sharp, J., Kanne, J.

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