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United States v. Desotell

United States Court of Appeals, Seventh Circuit

July 11, 2019

United States of America, Plaintiff-Appellee,
Jimmy L. Desotell, Defendant-Appellant.

          Argued April 9, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 17-CR-111 - William C. Griesbach, Chief Judge.

          Before Kanne, Barrett, and Brennan, Circuit Judges.

          Kanne, Circuit Judge.

         Jimmy Desotell had an unexpected encounter with police officers one evening in Green Bay, Wisconsin. While he was trying to borrow a car from a friend, police arrived and informed him that the vehicle was suspected of use in a retail theft. But after being told that he was not a suspect and was free to leave, Desotell stuck around. He tried to remove bags from the car as police were about to search it, arousing the officers' suspicion. As it turned out, the bags contained a firearm and drugs. After unsuccessfully trying to suppress the evidence, he agreed to plead. Despite tensions during negotiations, Desotell eventually signed a plea deal expressly waiving his right to appeal the motion to suppress. After an extensive colloquy in the district court hammering home the waiver, Desotell now appeals the precise issue he may not appeal. We therefore dismiss it as waived.

         I. Background

         Green Bay police arrested Desotell on May 30, 2017 while investigating a retail theft. He admitted to owning two bags containing methamphetamine and a handgun, which police discovered while searching a vehicle that had been involved in the theft earlier that day. Desotell was not a suspect in the theft; he just happened to be in the wrong place, at the wrong time, with the wrong stuff.

         A grand jury indicted Desotell on two counts: 1) conspiracy to distribute, and to possess with intent to distribute, 500 grams or more of methamphetamine, 21 U.S.C. §§ 846, 841(b)(1)(A); and 2) knowingly using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). The district court appointed a Federal Defender to represent Desotell immediately after his arrest. Desotell agreed to plead guilty and cooperate with investigators, giving useful information about his drug contacts. In return, the government agreed not to file a prosecutor's information detailing Desotell's prior convictions, thereby avoiding a higher mandatory-minimum sentence.

         In December 2017, Desotell retained private attorney John Miller Carroll and discharged his Federal Defender. Shortly after obtaining new counsel, Desotell moved to suppress the evidence found in his bags, arguing that his detention at the scene and the search violated the Fourth Amendment.

         While the motion was pending, the government informed Desotell that he had to sign the plea agreement by March 9, 2018. Presumably, signing the agreement would have meant withdrawing the motion to suppress, so Desotell delayed. The deadline came and went without a ruling on the motion, and Desotell did not sign the agreement. The government, assuming that Desotell intended to litigate his motion rather than plead guilty, acted as if the agreement were no longer on the table. It filed the information and continued to prepare for trial. Desotell objected and moved to enforce the unsigned plea agreement. The court denied the motion to suppress on April 19. Desotell then came back to the table. He signed a plea agreement and the government withdrew the information.

         The district court held a change-of-plea hearing on May 8. The court first confirmed the parties' understanding that the agreement was a general plea, not a conditional plea. In other words, the document contained "no reservations of any right to appeal from the denial of the Motion to Suppress." Desotell, through his counsel (Carroll), agreed that the document "contain[ed] a general clause about waiving any pretrial motions." But then defense counsel emphasized that he did not believe the waiver was effective because, at the time Desotell initially agreed to the wording, he had not contemplated filing his motion to suppress. In counsel's view, the general waiver did not bar an appeal of that motion.

         The district court expressed its confusion with this argument. It iterated several times that, in the federal system, a defendant must expressly reserve his right to appeal in the text of the plea agreement. Counsel acknowledged the court's admonishment, but he refused to accept it:

MR. CARROLL: Right. I fully understand that, Your Honor, and I think that it's - It's just that I don't think it's correct, and it should be - The Government shouldn't be - control the ability of a defendant to appeal in a criminal case.
THE COURT: You may be - Maybe, you're right. You can disagree with the way the law is. But if you're advising your client that he has the right to appeal the denial of his Motion to Suppress, there's a problem. Your client is entering a plea with a false ...

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