United States v. Kearn

54 F.4th 1225

UNITED STATES of America, Plaintiff - Appellant,

v.Jonathan KEARN, Defendant - Appellee.

No. 22-3068

United States Court of Appeals, Tenth Circuit.

FILED December 2, 2022

Submitted on the briefs^* :

James A. Brown, Assistant United States Attorney (Duston J. Slinkard, United States Attorney, with him on the briefs), Office of the United States Attorney, District of Kansas, Topeka, KS, for Appellant.

Lydia Krebs, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, District of Kansas, Wichita, KS, for Appellee.

Before TYMKOVICH, SEYMOUR, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

Under 28 U.S.C. § 2255, district courts have authority to vacate a prisoner's sentence for a constitutional violation and order a resentencing hearing. One type of constitutional violation now warrants our attention: ineffective assistance of counsel in plea discussions as spelled out in Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). For these violations, district courts may require the government to reoffer a rejected plea if the defendant rejected it because of ineffective assistance of counsel. Before turning to Lafler and ineffective assistance, however, we must first consider whether we have appellate jurisdiction to hear the government's appeal. We hold that the government's appeal is presently interlocutory. An appealable final judgment will arise only after the district court issues a resentencing order. We thus lack appellate jurisdiction and remand to the district court for proceedings consistent with this opinion.

BACKGROUND

A federal jury convicted Jonathan Kearn of three charges arising from his photographing and distributing pornographic images of his four-year-old daughter. The district court sentenced Kearn to 292 months’ imprisonment, the low end of the advisory range set forth in the U.S. Sentencing Guidelines. Kearn appealed his conviction and sentence, asserting multiple issues, including ineffective assistance of counsel. We affirmed after determining that "the evidence of Kearn's guilt was overwhelming" and doubting that "even absent any of Kearn's alleged errors, the outcome of the trial would have been different." United States v. Kearn , 863 F.3d 1299, 1312-13 (10th Cir. 2017). But we left unresolved Kearn's ineffective-assistance claims, treating them as premature and properly raised "in collateral proceedings, not on direct appeal." Id. at 1305 n.1 (quoting United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)).

Now, Kearn brings his ineffective-assistance-of-counsel claims under 28 U.S.C. § 2255. He may do so to collaterally attack his sentence and seek a resentencing as relief. § 2255(b). Kearn's § 2255 Motion to Vacate, Set Aside, or Correct Sentence asserts that his trial counsel performed deficiently by inadequately explaining the government's plea offer to him.¹ In an amended motion, Kearn alleged that he had declined to accept the plea offer because his trial counsel had advised him that he "would essentially be lying to the Court and thus committing perjury by accepting responsibility for criminal actions he had no part of." J.A. vol. I, at 132-33.

The pretrial record provided the district court little help in assessing Kearn's claims about the plea negotiations. The court knew it conducted a Lafler / Frye hearing² shortly before trial, where it heard testimony about the government's rejected plea offer under Federal Rule of Criminal Procedure 11(c)(1)(C). Under this offer, Kearn could have pleaded guilty to the least serious of the child-pornography offenses (Count Three) in exchange for his agreeing to a binding ten-year imprisonment term, with the government dropping the more serious counts (Counts One and Two).³ At the hearing, Kearn's trial counsel, Michael Francis, stated that he had timely relayed the offer to Kearn.

The court's limited knowledge about the parties’ plea negotiations spurred it to ask the parties for additional information to better evaluate Kearn's § 2255 motion. It ordered Kearn's trial counsel to furnish an affidavit addressing the underlying plea discussions and further scheduled an evidentiary hearing. The affidavit addressed trial counsel's general practices in representing criminal defendants. For example, counsel stated that he had "never advised a client" against pleading guilty for fear of a perjury charge; that he routinely advised clients of three ways by which they could furnish a factual basis for their guilty pleas;⁴ and that he "advise[d] the client that the judge will ask if the client is pleading guilty because he is guilty." J.A. vol. I, at 264-65.

At the later evidentiary hearing, trial counsel testified more specifically about his representation of Kearn. Though he could not recall specifics of his discussions with Kearn about the plea offer, he stated that he "generally would have told" Kearn about the ways courts establish a factual basis for a plea. J.A. vol. II, at 336-37. He also testified on cross-examination that Kearn maintained his innocence throughout the plea discussions and at trial:

Q. Mr. Francis, did you ever advise Jonathan Kearn not to accept the plea agreement that was offered in this case?

A. No.

Q. Did Mr. Kearn ever tell you that he would accept the plea offer and plead guilty?

A. He told me that he would not plead guilty.

Q. Okay. What was the defendant's attitude about pleading guilty to the charges in this case?

A. That he didn't do it—didn't do what he was charged with.

Q. And, at any point during your representation, did you believe the defendant would plead guilty?

A. I didn't think he would.

Id. at 340. In addition, trial counsel recalled advising Kearn about the binding nature of Rule 11(c)(1)(C) plea agreements. In doing so, as we understand it, trial counsel expressed uncertainty about whether the proposed plea's ten-year sentence "was actually going to be [ten] years" and noted "a judge doesn't have to go along with the plea agreement." Id. at 347.⁵

Kearn also testified at the evidentiary hearing. He reported that his trial counsel had spoken to him for roughly six minutes about the government's plea offer. Kearn recounted that trial counsel never advised him to accept the plea offer, that trial counsel did not advise him about Federal Rule of Criminal Procedure 11, and that trial counsel did not describe "an option where [Kearn] would not have to personally state a factual basis for the plea." Id. at 353-54. He did not recall how trial counsel explained the binding nature of the ten-year sentence. But he testified that had he known that the government could supply the factual basis for the plea, he would have accepted it. On cross-examination, however, Kearn admitted that he would have answered "No" if the judge had asked him if he were factually guilty.

The district court later issued a written order granting Kearn's § 2255 motion. It concluded that "the totality of trial counsel's legal advice during the plea process fell below an objective standard of reasonableness." United States v. Kearn , 578 F. Supp. 3d 1221, 1232 (D. Kan. 2022). It found that trial counsel failed to explain to Kearn how Rule 11(c)(1)(C) pleas work, overstated Kearn's required participation in laying a factual basis of guilt, and spent insufficient time advising Kearn of the plea offer. Id. at 1233-38. The district court also concluded that trial counsel's deficient performance prejudiced Kearn. Characterizing the prejudice inquiry as "a difficult one," the district court sought analytical help from a D.C. Circuit case. Id. at 1238-41 (citing United States v. Knight , 981 F.3d 1095 (D.C. Cir. 2020) ). From that case, the district court reasoned that trial counsel's deficient performance had prejudiced Kearn because "[t]here was a significant and material disparity between the government's plea offer and Mr. Kearn's sentencing exposure if convicted at trial," and because "nothing in the record suggests that Mr. Kearn was so intent on going to trial that no plea deal could convince him to do otherwise." Id. at 1241-42. The district court also stated that it would have accepted the Rule 11(c)(1)(C) plea if the parties had presented it to the court. Id. at 1243.

The district court acknowledged that Kearn still maintained his innocence even during the evidentiary hearing. Id. at 1242-43. But the court sided with Kearn's position that he could have pleaded guilty under a "very narrow circumstance: where the government supplied the factual basis for the guilty plea, and [Kearn] acknowledged that the government had sufficient evidence to convict him at trial." Id. at 1241-43. According to the court, "had Mr. Kearn confirmed that the government possessed sufficient evidence to convict him and presented Circuit authority opining that he need not admit his guilt to supply the requisite factual basis—it's far more likely than not that the court would have accepted his guilty plea." Id. at 1243.⁶

As to the remedy, the district court required the government "to reoffer the plea proposal." Id. at 1244 (quoting Lafler , 566 U.S. at 171, 132 S.Ct. 1376 ). Relying on the Supreme Court's guidance in Lafler , the district court reasoned that resentencing would "restore the parties to their positions before trial without granting Mr. Kearn an undue windfall." Id. It thus required the government to reoffer the plea within twenty days of the order, at which point the court would "set the case for a status conference to discuss Mr. Kearn's decision, and, if necessary, schedule a change of plea hearing." Id. at 1244-45.⁷

The government reoffered the plea deal as ordered. Kearn informed the court that he intended to accept the government's reoffered plea. The district court then scheduled a change-of-plea hearing and resentencing set for the same day.

Soon after reoffering the plea, the government moved the district court to reconsider...