United States v. Kessee

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 14, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30740
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES KESSEE, also known as Bug,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50038-1
______________________
Before GARWOOD, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
Charles Kessee appeals his conviction for conspiracy to
distribute cocaine, arguing that his guilty plea lacked a factual
basis. Agreeing, we VACATE his conviction.
I
In April 2003, a federal grand jury indicted Charles Kessee on
one count of conspiracy to distribute five or more kilograms of
cocaine and one count of possession with intent to distribute an
unknown quantity of cocaine. The trial began on March 1. During

-- 1 of 9 --

1 The minimum was predicated on Kessee’s 1991 conviction for possession of
crack.
2
the lunch break following jury selection, Kessee accepted the
Government’s offer that he plead guilty to conspiracy in exchange
for its promise not to seek a 20-year minimum sentence.1 Kessee
had requested to plead guilty to possession, but the Government
insisted that he plead guilty to the conspiracy count instead.
Because no written factual basis for the plea was prepared,
the Government established the factual basis at the guilty-plea
hearing through testimony of DEA Agent Lee Scott. Scott testified
that a confidential informant purchased 62 grams of cocaine from
Kessee on October 8, 2002, and on the following day Kessee was
arrested as he was about to sell the informant another 123 grams in
his possession. Scott testified further that he talked to three
federal inmates who had contacted him to implicate Kessee: Jerome
Bailey, who told Scott that Kessee bought two to three kilograms
from him every week and a half, Kenneth Gipson, who told Scott that
he and Kessee exchanged two kilograms every month from April 1998
to August 1999, and Anthony Adams, who told Scott that he and
Kessee exchanged half a kilogram every week for four months.
Following Scott’s testimony and the district court’s
explanation of the elements of the offense, the court asked Kessee
if the Government could prove the conspiracy. Kessee responded:
KESSEE: My honest opinion, sir, no.
THE COURT: And tell me why.

-- 2 of 9 --

2 See North Carolina v. Alford, 400 U.S. 25 (1970); Ballard v. Burton, 444
F.3d 391, 396-97 (5th Cir. 2006) (describing Alford plea, where defendant asserts
innocence but admits sufficient facts exist to convict, and its effects).
3
KESSEE: I mean, in all honesty, I’m pleading guilty
because of the fact that I feel like it would be — I
mean, I have five kids, and for me to just take a chance
to trial and lose and get my life thrown away — I mean,
I just want to get back to my kids, that’s why I’m here.
THE COURT: The quickest way you can —
KESSEE: I just want to get back to my kids, that’s why I
am pleading guilty. I’m not pleading guilty because I
feel like they can prove this; I’m pleading guilty
because I don’t want to put myself on no chopping block.
I want to go back to my family.
Turning to counsel, the court asked if Kessee was tendering an
Alford plea.2 Stating that the parties had not discussed an Alford
plea, defense counsel explained that during plea negotiations,
although Kessee had admitted possession but denied conspiracy, the
Government would accept only a guilty plea to conspiracy. With
Kessee silent in the background, defense counsel strenuously argued
to the court that the plea was in Kessee’s best interest because a
jury likely would convict him and, under the plea bargain, his
Guidelines sentence would be far less than the 20-year minimum the
Government was threatening. Defense counsel asked the Government
to accept an Alford plea, but the Government refused and threatened
to withdraw the plea offer.
After discussion between the court and counsel, in which
defense counsel stated that “there’s not much that has to be proven
in order to show a conspiracy,” the court suggested that Kessee had

-- 3 of 9 --

4
admitted guilt to conspiracy: “[i]f he sold a dime’s worth of
cocaine to somebody and they sold it to somebody, that’s
distribution, that’s conspiracy.” At defense counsel’s suggestion,
the court turned to Kessee and asked, “[h]ave you provided cocaine
to somebody for a price and knew they went out on the street and
sold it to someone else?” When Kessee answered, “yes,” the court
stated, “[t]hen you’re guilty of conspiracy, and the court so
finds.” After the Government expressed concern that Kessee needed
to admit to the five kilograms or more quantity alleged in the
indictment, the court replied that the requisite quantity was
established by virtue of his guilty plea to conspiracy. The
hearing concluded.
By sentencing, on July 23, 2004, it had developed that the PSR
was recommending a Guidelines range of 24-30 years based on two
kilograms of crack, instead of the five kilograms of cocaine
alleged in the conspiracy count, something neither party had
anticipated at the guilty-plea hearing. Defense counsel moved to
withdraw Kessee’s guilty plea. Counsel explained that in his
insistent advocation of the plea, he had walked past the fact that
Kessee never admitted conspiracy. The court denied the motion,
finding that Kessee did not adequately claim innocence, that he had
close assistance of counsel, that the plea was knowingly and
voluntarily made, and that the motion was untimely. The court
adopted the PSR’s recommendation and sentenced Kessee to the

-- 4 of 9 --

3 A Booker issue also permeated these proceedings and this appeal, but we
do not address it because we vacate Kessee’s conviction.
4 As we will explain, infra.
5 See United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001).
6 See id at 314; United States v. Reasor, 418 F.3d 466, 474 (5th Cir.
2005).
5
Guidelines minimum of 292 months.3
On January 18, 2005, Kessee filed pro se a motion under §
2255, arguing that his plea was not knowingly and voluntarily made
and that his trial counsel was ineffective, including in failing to
appeal as Kessee had requested. On June 21, the court found that
Kessee was entitled to an out-of-time appeal and held his remaining
§ 2255 claims in abeyance. Kessee appealed his conviction.
II
Under Federal Rule of Criminal Procedure 11, a factual basis
must support a guilty plea to avoid conviction of a defendant whose
admitted4 conduct does not constitute a crime. Accordingly,
“[i]mplicit in the district court’s acceptance” of a guilty plea is
its “determination that [the defendant’s] conduct satisfied every
legal element” of the charged crime.5 Although we review for clear
error the district court’s finding of a factual basis, a challenge
to the legal sufficiency of an undisputed factual basis, like the
challenge here, is a straightforward question of law, reviewed de
novo.6
Kessee argues that he never acceded to the hearsay allegations

-- 5 of 9 --

7 As this court has held, “if the evidence showed that a defendant is
merely a buyer or seller, the elements necessary to prove a conspiracy would be
lacking....” United States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993).
6
of Agent Scott, admitting only that at some time and in some place
he sold cocaine to someone he knew would re-sell it. This, he
contends, is insufficient to establish a conspiracy because there
is no evidence of an agreement.7 More fundamentally, he argues,
even if mere selling were a conspiracy, Kessee’s admission was
insufficient to establish the specific conspiracy alleged in the
indictment; indeed, he explicitly denied that conspiracy. Finally,
he argues that the purported factual basis lacks the requisite
quantity of cocaine, contending that if the quantity were
established merely by his guilty plea to the conspiracy, as the
district court held, the factual basis requirement would be
meaningless.
The Government responds that the court based its finding on
more than Kessee’s brief statements to the court. According to the
Government, the court also considered Agent Scott’s testimony and
the PSR, establishing a wide-ranging conspiracy between Kessee and
Denise Walpool, “BoBo,” Kenneth Gipson, Rodney Lewis, Anthony
Lewis, and “Squirrel,” whereby Kessee would buy large amounts of
cocaine (more than the requisite amount) in Mesquite, Texas and
sell them in Shreveport, Louisiana. Hence, the Government argues,
the questions and comments by the court, including its question
whether Kessee had ever sold cocaine to anyone knowing that person

-- 6 of 9 --

8 Moreover, it claims, the court’s explanation of conspiracy was correct
since evidence that both parties to a drug sale knew the drugs were meant for re-
sale is sufficient to establish a conspiracy.
9 238 F.3d 310, 315 (5th Cir. 2001).
10 See United States v. Gulledge, 491 F.2d 679, 679 (5th Cir. 1974)
(affirming conviction where the district court failed to find a factual basis at
the plea hearing, noting that the Government recited a sufficient factual basis
at sentencing, to which the defendant did not object). We do not decide the
issue.
7
would re-sell it, were mere attempts to explain conspiracy to the
defendant, not the factual basis itself.8
Contrary to the Government’s suggestion, the factual basis
must consist of the defendant’s admitted conduct. As we held in
United States v. Marek, district courts should compare “(1) the
conduct to which the defendant admits with (2) the elements of the
offense charged in the indictment.”9 Doing so vindicates the
purpose of Rule 11 — to protect defendants who may plead guilty
without realizing their admitted behavior does not constitute a
crime.
Consistent with this view of Rule 11, the Government also
argues that Kessee implicitly admitted the requisite factual basis
by not disagreeing with Agent Scott’s statements at the plea
hearing or objecting to the PSR before sentencing, stating only
that the Government could not prove the conspiracy. Even if
silence in the face of allegations can be an admission supporting
a guilty plea,10 Kessee was far from silent here — from plea
negotiation to sentencing, he declined to admit conspiracy. Kessee
offered to plead guilty to possession, but the Government would

-- 7 of 9 --

11 The Government disagrees, arguing that Kessee did not move to withdraw
his plea until he saw the PSR at sentencing because only then did he see the
Government’s entire case, thinking it weak. Although we find this much less
likely, exactly why Kessee moved to withdraw his plea during sentencing is
irrelevant. The point is that Keesee consistently maintained that the Government
could not prove the conspiracy.
8
accept only a guilty plea to conspiracy. Kessee’s lawyer and the
able judge, wishing to give Kessee what at the time appeared to be
a benefit of the plea bargain, overlooked Kessee’s insistence
during the plea hearing that the Government could not prove
conspiracy. At sentencing, probably realizing that the recommended
24- to 30-year sentence based on an unforeseen quantity of drugs
gave Kessee no real benefit over trial,11 Kessee’s counsel pressed
to withdraw his client’s plea, explaining that he had pressured
Kessee to accept the plea despite Kessee’s protestations. While
the transcript reveals that Kessee claimed only that the Government
could not prove conspiracy, not that he was innocent of conspiracy,
we are unwilling to read into that an admission of conspiracy.
In sum, Kessee admitted only that at some time and in some
place he sold cocaine to someone he knew would re-sell it. As the
Government implicitly concedes, this admission does not support his
conviction for the conspiracy at issue. And the Government does
not argue this error was harmless. Hence, we vacate the
conviction.
While we understand the impetus toward plea bargains, and that
this veteran district judge was plainly trying to protect the
defendant from what then appeared to be a foolish decision, there

-- 8 of 9 --

9
are enough obstacles and disincentives on the path to trial that
defendants, like Kessee, expressly doubting the Government’s case
and requesting their traditional right to a jury should get their
wish.
VACATED.

-- 9 of 9 --