United States of America v. Jeremy Young Hutchinson

United States Court of Appeals
For the Eighth Circuit
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No. 23-2247
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Jeremy Young Hutchinson,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: June 13, 2024
Filed: August 22, 2024
[Unpublished]
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Before COLLOTON, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
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PER CURIAM.
Jeremy Hutchinson pleaded guilty to conspiring to commit federal programs
bribery. The district court* sentenced him to fifty months’ imprisonment. Hutchinson
appeals and raises several arguments relating to his plea agreement based on Federal
Rule of Criminal Procedure 11(c)(1)(B). We reject the contentions and affirm the
judgment.
A grand jury in the Western District of Missouri charged Hutchinson with
conspiring to commit theft or bribery in connection with programs receiving federal
funds. See 18 U.S.C. §§ 371, 666(a)(1)(B), 666(a)(2). The parties entered into a plea
agreement under Rule 11(c)(1)(B), as part of a “global settlement” resolving this case
and two others in federal courts in Arkansas.
The parties jointly recommended Hutchinson’s base offense level under the
sentencing guidelines, the application of particular increases and decreases in the
offense level, and an appropriate criminal history category. The parties also reserved
their “right to argue for any lawful sentence,” including a sentence outside the
guideline range, so long as the argument did not violate the agreement.
At sentencing, the district court first calculated an advisory guideline range of
108 to 135 months’ imprisonment. The statutory maximum penalty, however, was
60 months, see id. § 371, so 60 months became the guideline sentence. USSG
§ 5G1.1(a). The government recommended a sentence of 51 months to run
consecutively to Hutchinson’s sentences in the Arkansas cases. Hutchinson sought
a sentence of a year and a day to run concurrently with the other sentences.
Hutchinson did not object that the government’s advocacy conflicted with Rule 11
*The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
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or the plea agreement. The district court sentenced Hutchinson to 50 months’
imprisonment to be served consecutively to the sentences imposed in the Arkansas
cases. In making its determination, the district court had access to the sentencing
transcript from Hutchinson’s cases in Arkansas, and the court referred to the
sentences imposed in Arkansas.
Hutchinson raises several issues on appeal. All turn on whether his plea
agreement and the government’s conduct at sentencing complied with Rule
11(c)(1)(B). The arguments were forfeited in the district court, so we review only for
plain error. United States v. Olano, 507 U.S. 725, 732-33 (1993).
Subsection (B) allows parties to enter plea agreements under which the
government may:
recommend, or agree not to oppose the defendant’s request, that a
particular sentence or sentencing range is appropriate or that a particular
provision of the Sentencing Guidelines, or policy statement, or
sentencing factor does or does not apply (such a recommendation or
request does not bind the court).
Hutchinson contends that the text of Rule 11(c)(1)(B) “requires that the
Government either join in or not oppose the defense’s sentencing recommendation.”
He maintains that the portions of the agreement reserving the government’s right to
make its own recommendation were unenforceable or rendered the agreement
ambiguous. Hutchinson contends that the government committed prosecutorial
misconduct by making its own sentencing recommendation. He also argues that his
counsel was ineffective for failing to raise these objections.
Hutchinson’s position is that Rule 11(c)(1)(B) constrains the government either
to “recommend” or “agree not to oppose” the defendant’s request for a particular
determination at sentencing, and does not allow the government to make its own
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recommendation. This reading ignores punctuation in the text of the rule that creates
two separate clauses. The rule allows for two options: the government may
“recommend . . . that a particular sentence or sentencing range is appropriate,” or the
government may “agree not to oppose the defendant’s request . . . that a particular
sentence or sentencing range is appropriate.” The rule provides the same two options
for other determinations under the sentencing guidelines. The rule does not call for
the government to “recommend . . . the defendant’s request” because that formulation
would combine two separate grammatical clauses. One clause specifies what the
government may recommend. A separate clause, set off by commas, provides that the
government may “agree not to oppose the defendant’s request” on those matters.
A plea agreement under Rule 11(c)(1)(B), therefore, may specify that the
government will recommend its own position regarding particular determinations at
sentencing, or that the government will agree not to oppose the defendant’s request
on particular sentencing matters. The government may not argue against a promise
that it makes in the agreement, United States v. Fowler, 445 F.3d 1035, 1038 (8th Cir.
2006), but it may disagree with the defendant on issues that the agreement does not
address. United States v. Quebedo, 788 F.3d 768, 775 (8th Cir. 2015). The
government does not bind itself to remain silent or join in a defendant’s request
simply by entering into an agreement under Rule 11(c)(1)(B).
Hutchinson’s plea agreement conformed to Rule 11(c)(1)(B), and no party
violated it. The parties jointly recommended a base offense level, the application of
several adjustments, and a criminal history category. The agreement does not
mention an appropriate final sentence or whether the sentence should be concurrent
with or consecutive to the sentences imposed in the Arkansas cases. The agreement
instead reserved the government’s right to recommend any lawful sentence. The
government did not violate the plea agreement by recommending a sentence of 51
months’ imprisonment to run consecutively to Hutchinson’s sentences in the
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Arkansas cases. We therefore reject his arguments regarding an alleged breach of the
plea agreement and alleged prosecutorial misconduct.
We ordinarily defer claims of ineffective assistance to collateral proceedings,
see United States v. Oliver, 950 F.3d 556, 566 (8th Cir. 2020), but Hutchinson’s claim
in this appeal is foreclosed by our conclusion on his other contentions. He argues that
his counsel was ineffective because the lawyer counseled him to sign an “illegal” plea
agreement and did not object when the government made its own sentencing
recommendation. Because the agreement was not illegal and the government
permissibly made a recommendation, counsel’s performance was not deficient or
ineffective. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
For these reasons, the judgment of the district court is affirmed. The
government’s motion to dismiss the appeal is denied as moot. Hutchinson’s motion
to supplement the record with his Arkansas plea agreement is denied because the
terms of that agreement are immaterial to the arguments raised in Hutchinson’s brief
on appeal.
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