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Gray v. United States

United States Court of Appeals, Eighth Circuit

August 16, 2016

Deandrea S. Gray Movant - Appellant
v.
United States of America Respondent - Appellee

          Submitted: June 17, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before SMITH, GRUENDER, and BENTON, Circuit Judges.

          SMITH, Circuit Judge.

         Deandrea S. Gray pleaded guilty to, and was sentenced for, a crime that the stipulated facts in the plea agreement did not support. To address the error, he filed a motion "to vacate, set aside or correct the sentence." See 28 U.S.C. § 2255(a). Specifically, Gray sought to withdraw his guilty plea, thus vacating the sentence, or, alternatively, to be resentenced. The district court corrected the statute of conviction but left Gray's sentence intact. Gray appeals, arguing that the district court erred in finding that he was not prejudiced by (1) his decision to plead guilty and (2) the sentence imposed. We affirm Gray's conviction but reverse and remand for resentencing.

         I. Background

         A grand jury indicted Gray for (1) conspiring to distribute 50 grams or more of cocaine base, (2) possessing firearms in furtherance of a drug trafficking crime, and (3) possessing a firearm as a felon. Gray faced a potential sentencing range of 15 years' to life imprisonment. Gray agreed to plead guilty to a two-count information in exchange for the government dismissing all three counts of the indictment. The information charged Gray with (1) possession with intent to distribute 50 grams or more of cocaine powder, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) ("Count I"), and (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count II"). The factual basis for Gray's plea agreement stated that Gray possessed 262.12 grams of powder cocaine.

         At the change-of-plea hearing, the district court reviewed the terms of the plea agreement with Gray. It advised Gray that he faced a statutory range of 5 to 40 years' imprisonment on Count I. On Count II, he faced a statutory range of 5 years' to life imprisonment, to be served consecutively. Accordingly, the district court informed Gray that pleading guilty to the information exposed him to at least 10 years' imprisonment and up to a possible sentence of life imprisonment. The district court asked Gray if he was pleading guilty to the information because the result would be better than pleading guilty to the indictment. Gray answered, "Yes, Your Honor." Gray's attorney explained that after reviewing the evidence with Gray, they determined "[t]hat in all likelihood he would be found guilty beyond a reasonable doubt" on the originally indicted counts. Gray pleaded guilty to the information.

          At sentencing, Gray only contested his designation as a career offender under the Guidelines. The presentence investigation report (PSR) noted that Count I carried a statutory range of 5 to 40 years' imprisonment. The PSR calculated Gray's offense level as 31 and criminal history category as VI; however, the PSR reflected that Gray's Guidelines range of 262 to 327 months was controlled by his career offender status. The district court adopted the PSR's Guidelines calculation. The government moved for a downward departure based on Gray's substantial assistance and requested a sentence between 157 and 196 months' imprisonment. Gray sought a sentence of 157 months' imprisonment. The district court sentenced Gray to a total of 190 months' imprisonment. It apportioned the sentence between Counts I and II in accordance with U.S.S.G. § 5G1.2(e), sentencing Gray to 130 months' imprisonment on Count I and the required minimum 60 months' imprisonment on Count II, to be served consecutively.

         Gray directly appealed his sentence to our court, but we dismissed the appeal based on the plea agreement's appellate waiver provision. Gray then timely filed a § 2255 motion collaterally attacking his conviction and sentence before the district court that originally sentenced him under the plea agreement. The district court asked the government to show cause why relief should not be granted. In its response, the government disclosed that Gray was convicted and sentenced under an incorrect statutory subsection. The information charged Gray under 21 U.S.C. § 841(b)(1)(B), but the factual basis of the plea agreement only supported a violation of § 841(b)(1)(C). Section 841(b)(1)(B) carries a minimum statutory penalty of 5 years' imprisonment, whereas § 841(b)(1)(C) carries no minimum statutory term of imprisonment. The government acknowledged the information was erroneous, but it, nonetheless, argued that Gray was not prejudiced by the error. Gray requested that he be permitted to withdraw his guilty plea to the information or, alternatively, that the district court resentence him applying the correct statutory subsection.

         The district court determined that the erroneous information was a nonstructural error subject to harmless-error review. It held that a properly informed judge would not have accepted Gray's guilty plea to § 841(b)(1)(B) based on the factual basis outlined in the plea agreement. The court found that the error prejudiced Gray because it led to a conviction of a more serious crime. Nevertheless, it determined that it could correct the error by amending the judgment to reflect the correct statute of conviction. According to the district court, this remedied any harm because it would not have sentenced Gray any differently had the information cited the correct subsection of the statute. The district court stated that it "imposed a 130-month sentence [on Count I] because it believed 130 months' imprisonment was the appropriate sentence."

         The district court also determined that Gray's decision to plead guilty was not knowing and voluntary but, nonetheless, was harmless. The district court reasoned as follows:

When Gray pled guilty to the Information he was told that his statutory range of punishment was five to forty years' imprisonment on Count One and five years to life, to be served consecutively, on Count Two. Thus, as Gray understood it, he was facing a higher minimum sentence than if the Information had actually charged him under § 841(b)(1)(C). Since Gray agreed to plead guilty to a more severe range of punishment, logic dictates he would have been willing to plead guilty to a less severe range of punishment. Gray's claim that if he had been informed of the correct, lower range of punishment he would have insisted on going to trial to make the government prove that he violated 21 U.S.C. § 841(b)(1)(B) by possessing only 262.12 grams of cocaine is based on a flawed assumption. If Gray had spurned the Government's plea deal, he would have been tried on the original, three-count indictment alleging a crack-cocaine conspiracy, not the reduced charges in the two-count Information. The plea deal was that in return for waiving his right to trial on the charges in the indictment, he could plead guilty to the reduced charges in the Information. Hence, had he known the correct sentencing range under the Information, it would not have altered his decision to plead guilty in any way.

         The district court did not allow Gray to withdraw his guilty plea. It granted his § 2255 motion in part by issuing a partially amended judgment to reflect the correct statute of conviction. It also granted a certificate of appealability as to the following questions, finding that a reasonable judge might resolve them differently:

1. Whether Gray's conviction under 21 U.S.C. ยง 841(b)(1)(B) entitles him to withdraw his guilty plea or ...

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