On Appeal from the District Court of the Virgin Islands, Division of St. Thomas and St. John. District Judge: The Honorable Thomas K. Moore. District Court No. 99-CR-00006-03.
The opinion of the court was delivered by: Smith, Circuit Judge.
Before: NYGAARD, RENDELL, and SMITH, Circuit Judges
Devin Hodge pleaded guilty to murdering the owner of a St. Thomas jewelry store. Devin's brother, Irvine, pleaded guilty to the same crime as part of a "package deal." The brothers were sentenced at the same proceeding to life in prison by the District Court of the Virgin Islands. Devin argues on appeal that the government breached its plea agreement, and that the District Court conducted a deficient plea colloquy in part because it was unaware that his plea was linked to his brother's. We hold that the government breached its plea agreement, and we will vacate Devin's sentence and remand for re-sentencing or withdrawal of his plea. We further hold that the District Court did not plainly err in conducting Devin's plea colloquy. We write to provide guidance for the District Court should a new plea colloquy be required on remand, and for other district courts faced with the sensitive task of testing voluntariness in package deal plea situations.*fn1
In May 1999, a federal grand jury indicted Devin Hodge, Irvine Hodge, and a third defendant for murder of the owner of the Emerald Lady Jewelry Store in Charlotte Amalie, St. Thomas, and the theft of jewelry from the store.*fn2
Devin pleaded not guilty to that indictment, which was styled as a second superseding indictment.*fn3 In March 2000, Devin pleaded not guilty to a third, superseding indictment.*fn4
As early as mid-1999, however, at Devin's initiation, Devin and the government were engaged in intense discussions about a plea bargain. The United States Attorney wrote in July 1999 that the government was "seriously considering" asking that Devin plead guilty to first degree murder and possession of a firearm in relation to a crime of violence. In return, the government would recommend that Devin be sentenced at the lower end of the guideline range and that he receive the maximum, three-point credit for extraordinary acceptance of responsibility under the United States Sentencing Guidelines.
In late-April 2000, the government sent Devin's attorney a draft plea agreement. The body of the cover letter stated:
I am enclosing herewith a copy of a proposed plea agreement in the above captioned matter. The proposed agreement is the entire integrated agreement of the parties. Additionally, the plea offer from the government is a lock plea. That is, each of your clients must accept the plea as a condition of the government's acceptance of the plea.
As you know, while the government will recommend three points off for extraordinary acceptance of responsibility if your clients each accept the plea, the government is not the final arbiter of what United States Sentencing Guidelines range the United States Probation Office may calculate. As such, the government makes no representation as to what probation's [sic] calculations, or the Court's position on those calculations, may be.
Four days after receiving this letter, Devin pleaded guilty. The written plea agreement provided that Devin would plead guilty to first degree murder, the second count of the Third Superseding Indictment. In return, the government agreed to "seek dismissal" at sentencing of the remaining counts, and to "recommend that [Devin] receive credit for acceptance of responsibility, assuming [Devin] does in fact clearly demonstrate acceptance of responsibility." While the government reserved its right to allocute at sentencing, it agreed "to make no specific sentencing recommendation other than to request that the sentence be within the guideline range."
The final paragraph of the written plea agreement provided that "[t]he parties agree that no other promises have been made in connection with this matter, and that this Plea Agreement constitutes the entire agreement between the United States Attorney for the District of the Virgin Islands and the defendant in the above-referenced case." The agreement did not mention that Devin's plea was "locked," or otherwise conditioned upon, Irvine's identical plea.
Later that month, the District Court held a joint change-of-plea hearing for Devin and Irvine. Devin's and Irvine's attorneys indicated that the pleas were identical and agreed to a "dual inquiry." District Judge Moore stated:
Even though you've gone over and completed an application to plead guilty, each of you, and a separate plea agreement which it appears to me has -- when I looked at it before -- has been signed, I want to make sure that I have -- that the file reflects what you and your attorneys have gone over individually.
Devin and Irvine reviewed their individual applications and their plea agreements, and they and their attorneys initialed each page of those documents.
Judge Moore explained separately to Devin and Irvine that the maximum penalty for pleading guilty to first degree murder was death. Devin's attorney objected, noting that his client was a minor at the time of the offense. When the government conceded that the death penalty would not apply to Devin, Judge Moore responded, "[a]nd the government agrees for both Mr. Irvine Hodge and Mr. Devin Hodge, that death is not an option[?]" The government agreed. Judge Moore summarized that, "[s]o for all legal and practical purposes, insofar as these two defendants, Mr. Irvine Hodge, Jr. and Mr. Devin Hodge, the maximum possible sentence is life imprisonment[?]" Both Devin's and Irvine's counsel agreed.
Judge Moore asked Devin whether he understood what the government had promised to do in return for his guilty plea. Devin answered, "Yes, your Honor." Prompted by Judge Moore, Devin elaborated: "Well, I understand it would be in a guideline range. Also I understand -- well, the charges I'm being charged with, what would be dropped." Judge Moore summarized: "So the government, once we arrive at a guideline range, the government will recommend that the sentence be within that, and they're not going to ask for any particular sentence, except that it be within that range." Devin answered in the affirmative. "Is there anything else about the agreement you don't understand that we need to go over?" Judge Moore asked. "No, I understand everything fully," Devin answered.
Devin and Irvine were questioned separately regarding rights they were waiving by pleading guilty. Judge Moore asked: "Do you understand our system, and that you don't have to give [your rights] up, nobody can force you to give them up, but if you do waive those rights, what you'll do if you plead guilty, then they'll be waived and the next thing will be the sentencing?" The brothers each answered affirmatively. Judge Moore added, "you understand also that you have the privilege against self-incrimination, which means that you have the right to stand on your plea of not guilty and to remain silent. No one can force you to testify against yourself or to give other incriminating testimonial evidence, indicating that you're guilty as charged?" Again, the brothers answered affirmatively.
Judge Moore then homed in on voluntariness:
The Court: Now, you are the only ones who can plead -- change your plea to a charge, this Count 2, and it's -- your plea [is] valid only if it's your free and voluntary act. So, Mr. Irvine Hodge, has anyone ...