United States of America v. Lee Jones

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0242p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEE JONES,
Defendant-Appellant.
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No. 21-3636
Appeal from the United States District Court for the Northern District of Ohio at Youngstown.
No. 4:20-cr-00750-1—Dan A. Polster, District Judge.
Argued: November 1, 2022
Decided and Filed: November 16, 2022
Before: McKEAGUE, THAPAR, and READLER, Circuit Judges.
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COUNSEL
ARGUED: Jack Millman, JONES DAY, New York, New York, for Appellant. Rebecca C.
Lutzko, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
ON BRIEF: Jack Millman, JONES DAY, New York, New York, for Appellant. Rebecca C.
Lutzko, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
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OPINION
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THAPAR, Circuit Judge. Lee Jones pled guilty to being a felon in possession of a
firearm, but the district court did not ensure that his plea was knowing and voluntary. Thus, we
vacate Jones’s sentence.
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I.
The police pulled Jones over for a traffic violation. What began as a routine traffic stop
soon spiraled out of control. Ignoring the officers’ repeated demands that he step out of the car,
Jones rolled up his window, sped off, crashed the car, and then ran until the police arrested him.
The police seized an AR-15 and a handgun from the wrecked car. Jones was charged as a felon
in possession of a firearm. See 18 U.S.C. § 922(g)(1). He pled guilty without a plea agreement.
Jones appeals because of how the district court explained the Sentencing Guidelines at
the change-of-plea hearing. First, the district court informed Jones of the maximum statutory
penalties he faced. Jones immediately claimed he “didn’t understand” because he “thought [his]
guideline was something different.” R. 28, Pg. ID 135. But the court hadn’t discussed the
Sentencing Guidelines yet, just the statutory maximums. Eventually, the court did reach the
Guidelines. The court asked Jones if he had discussed the Guidelines with his lawyer. Jones
said he had. The government claimed the Guidelines called for 21 to 27 months’ imprisonment.
Jones’s lawyer argued the correct range was 12 to 18 months. The district court said it would
have to decide between the parties’ proposals. At the time, no one recognized the problem with
this statement. Without a plea agreement that specified the sentencing range, the court was not
bound by the parties’ Guidelines calculations. See Fed. R. Crim. P. 11(c)(1)(C). But Jones was
unaware of that possibility. At the end of the hearing, the court informed Jones that the
Probation Office would prepare a presentence investigation report (“PSR”), which the court
would “use at sentencing.” R. 28, Pg. ID 146.
When the PSR recommended 46 to 57 months’ imprisonment, Jones was understandably
confused. He hadn’t realized the district court could sentence him to more time than the
government originally requested. He claimed that if he had known, he would have fought the
charge or taken a plea deal. The court recognized that if it hadn’t told Jones it could sentence
him above the government’s recommendation, it should have. So the court informed Jones that
even though it was rather late in the proceedings, he could move to withdraw his guilty plea. But
the court warned it might deny the motion, and if it did, Jones would lose credit he received for
accepting responsibility and pleading guilty. All the while, the government remained silent.
When the government finally did speak, it asked for a sentence of 57 months—much more than

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No. 21-3636 United States v. Jones Page 3
the 21-to-27-month range it referenced at the change-of-plea hearing. Ultimately, Jones went
through with his guilty plea, and the court sentenced him to 57 months’ imprisonment.
II.
Federal Rule of Criminal Procedure 11 ensures that defendants’ guilty pleas are knowing
and voluntary. See United States v. Catchings, 708 F.3d 710, 716 (6th Cir. 2013). The
government concedes Jones’s plea did not meet this standard. We agree. The district court
should have warned Jones that it would decide his sentence irrespective of the parties’
Guidelines calculations. See Fed. R. Crim. P. 11(b)(1)(M); cf. United States v. Austin, 830 F.
App’x 460, 464 (6th Cir. 2020) (holding there was no Rule 11 violation because the court said it
would independently decide the sentence, despite the parties’ recommendations). That leaves the
question of remedy.
Jones argues the error makes him eligible for resentencing to no greater than 27 months’
imprisonment—the maximum the government referenced at the change-of-plea hearing. His
opening brief clearly and cogently explained why he believed he was entitled to that remedy.
The government responded with a single sentence asserting he was not entitled to that remedy,
without citation or any explanation, in the conclusion of its brief. It later supplemented that
sentence with a Rule 28(j) letter advising us of a decision issued four years ago. This is an
obvious forfeiture. The government failed to develop any argument against Jones’s proposed
remedy. But the government’s error doesn’t automatically entitle the defendant to whatever
remedy he seeks. As the Supreme Court has explained, courts have an independent obligation to
get the law right in criminal cases. Young v. United States, 315 U.S. 257, 258–59 (1942). In
Young, the government confessed error, but the Supreme Court accepted that confession only
after independently reviewing the alleged errors. Id. at 259–61. The Court warned that “the
proper administration of the criminal law cannot be left merely to the stipulation of parties.” Id.
at 259 (citations omitted). Young is about a stipulation, but it applies just as forcefully to
forfeiture. For example, a court could not sentence a defendant to less than the statutory

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minimum just because the government failed to object. In short, the government’s forfeiture
does not allow the court to order a remedy that is contrary to law.1
Of course, not every forfeiture would result in a remedy that is contrary to law, but here it
would. Jones asks us to cap the sentencing court’s discretion at 27 months. But there’s only one
way a defendant can cap the district court’s sentence: a binding plea agreement. See Fed. R.
Crim. P. 11(c)(1)(C). And Jones didn’t obtain one, so we have no basis for limiting the district
court’s sentencing discretion.
The Federal Rules of Criminal Procedure provide an elaborate process before the district
court accepts a binding plea agreement. In most cases, district courts should review the PSR
first. See Fed. R. Crim. P. 11(c)(3)(A); United States v. Cota-Luna, 891 F.3d 639, 647 (6th Cir.
2018). After performing that review, district courts can even reject pleas outright. Cota-Luna,
891 F.3d at 651 (Kethledge, J., concurring in the judgment). That’s because the court must
ensure the sentence serves the public interest and satisfies the statutory sentencing factors. See
18 U.S.C. § 3553(a). The remedy Jones requests would short-circuit that whole process. It
would deprive the district court of sentencing discretion without the coordinate procedural
protections the plea process usually affords. In effect, Jones asks us to impose a binding plea
agreement—even though he didn’t obtain one—just because the district court erred. That’s not a
remedy a court, charged with the proper administration of the criminal law, can award.
So what remedy is available? Because Jones’s plea was unknowing in violation of Rule
11, he may “plead anew.” McCarthy v. United States, 394 U.S. 459, 472 (1969), superseded on
other grounds by rule, Fed. R. Crim. P. 11(h); United States v. Tunning, 69 F.3d 107, 115 (6th
Cir. 1995) (discussing the available remedies for Rule 11 violations). Thus, the proper remedy is
to vacate Jones’s plea and remand for him to plead anew.
1In some cases, the law won’t be clear. Courts facing difficult legal questions with uncertain answers need
not attempt to figure it all out themselves without the parties’ assistance. See Brenay v. Schartow, 709 F. App’x
331, 337 (6th Cir. 2017) (“[I]t is not for the court to search the record and construct arguments. Parties must do that
for themselves.” (citation omitted)). In those situations, courts can appropriately hold the government to its
forfeiture.

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Jones resists this conclusion. He argues that even though “precedent does not compel” us
to order resentencing, we should in this case. Reply Br. 9. But Jones’s argument invokes our
habeas jurisprudence, where we possess “broad discretion in crafting remedies for constitutional
errors.” Ruelas v. Wolfenbarger, 580 F.3d 403, 410 (6th Cir. 2009) (cleaned up). For example,
in a habeas case we ordered a state prisoner to be resentenced without vacating his guilty plea.
See Hart v. Marion Corr. Inst., 927 F.2d 256, 259 (6th Cir. 1991). That makes sense. Because
of federalism and comity, we grant the least disruptive remedies possible to redress constitutional
violations in state courts. But Jones entered his plea in federal court, where Rule 11 applies.
And McCarthy prescribes the remedy for this Rule 11 violation: The defendant may “plead
anew.” 394 U.S. at 472. So Jones’s appeal to our habeas caselaw falls flat.
Jones also relies on our unpublished opinion in United States v. Smagola, 390 F. App’x
438 (6th Cir. 2010). True, Smagola ordered resentencing rather than vacating a federal
defendant’s plea. Id. at 444. But Smagola is unpublished and unpersuasive. It ignores the
distinction between guilty pleas entered in state and federal court. Because Smagola is
unpublished and disregards this important principle of federalism, we need not follow it.
In short, the proper remedy for an unknowing plea entered in violation of Rule 11 is
allowing the defendant to plead anew. If the government had argued that here, that’s the remedy
we would order. But because the government forfeited any objection to Jones’s proposed
remedy, we grant the closest remedy the law permits. We can’t strip the district court of its
sentencing discretion absent a binding plea agreement. But we can give the district court the
option of resentencing Jones to no more than 27 months or allowing him to plead anew. In
making that decision, the district court may consider any of the relevant sentencing factors,
including post-sentencing rehabilitation. See Pepper v. United States, 562 U.S. 476, 490–91
(2011). This choice preserves the district court’s discretion and comports with the Supreme
Court’s decision in McCarthy.
* * *
We vacate the district court’s sentence and remand for further proceedings consistent
with this opinion.

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