Judge Joseph R. Goodwin is a highly regarded and long serving United States District Judge in the Southern District of West Virginia.[i] He has written an opinion[ii] rejecting a plea agreement that deserves to be read by federal prosecutors and federal CDLs alike, no matter where they practice. It sets forth a thoughtful schema for rejecting regular plea agreements, not just Rule 11(c)(1)(C) plea agreements. With sincere respect, the good judge is quite wrong.

Charles Walker is a very small-time drug dealer. He was charged in a six count indictment. Four counts related to the distribution of heroin. Two counts related to the distribution of fentanyl and one count charged that Walker was a felon in possession of a firearm.

There were seven controlled buys resulting in small quantities of drugs. According to Judge Goodwin, Walker sold a total of 0.729 grams of heroin, 0.071 grams of fentanyl, and 0.17 grams of a furanyl fentanyl during these buys. After these controlled buys, an arrest warrant and a search warrant were executed. According to the judge, the agents searched the defendant incident to arrest and discovered an additional 9.7 grams of marijuana, 2.081 grams of powder cocaine, and 0.845 grams of a heroin and fentanyl mixture.[iii]

The agents then executed a search warrant and recovered a set of digital scales, one bag of a white substance, one box with a suspected methamphetamine pipe, one bag of suspected marijuana, five boxes of 45 caliber ammunition, two pistols, miscellaneous medical items containing the defendant’s name, and a cell phone used during the controlled buys.

Walker agreed to enter a guilty plea to a one count information charging him with possession with intent to distribute a quantity of heroin on July 14, 2016, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). That exposed him to a maximum of 20 years in prison, but there was no statutory minimum. The plea agreement was negotiated by an Assistant United States Attorney and an Assistant Federal Public Defender.

The plea agreement, which is publicly available on CM/ECF (the federal judiciary’s case management and electronic case filing system), stipulated that the following facts, among others, were true:

On or about July 14, 2016, officers with the Metropolitan Drug Enforcement Network Team (MDENT), executed a valid arrest warrant for Mr. Walker near the intersection of 2nd Avenue  and Russell Street in Charleston, Kanawha County, West Virginia, which is in the Southern District of West Virginia. Through a search conducted incident to that arrest, an MDENT officer found in Mr. Walker’ s pockets approximately 1.02 grams of heroin, a Schedule I controlled substance, approximately 3.2 grams of cocaine, a Schedule II controlled substance, and two bags containing a total of approximately 9.7 grams of marijuana, a Schedule I controlled substance. Mr. Walker stipulates that he intended to distribute the heroin found in the July 14, 2016, search incident to arrest.

Mr. Walker further stipulates and agrees that the total amount of controlled substances fairly attributable to him is greater than 5 KG but less than 10 KG of marijuana equivalency.

The parties agreed that Walker’s base offense level was 12. There was no agreement on criminal history. The parties also agreed that the government was free to urge a two-level bump for a gun under USSG § 2D1.1(b)(1) and a two-level bump for violence under USSG § 2D1.l(b)(2).[iv]

Importantly, Walker agreed to cooperate with the government. Equally important, the parties agreed that Walker could not wiggle out of the plea agreement because he did not like the way the judge ultimately calculated the Guideline range:

The United States and Mr. Walker acknowledge and understand that the Court and the Probation Office are not bound by the parties’ calculation of the United States Sentencing Guidelines set forth above and that the parties shall not have the right to withdraw from the plea agreement due to a disagreement with the Court’s calculation of the appropriate guideline range.

The plea agreement further boxed Walker into a corner. That is, Walker could not get out of the plea agreement even if the judge found the facts to be different from those agreed upon by the parties. Still further, Walker waived appeal “so long as that sentence of imprisonment, fine or term of supervised release is below or within the Sentencing Guideline range corresponding to offense level 16, regardless of his Criminal History Category.” Even if the judge went above offense level 16, the parties agreed that the judge was free to do so and Walker was left to appealing the sentence—and, I should add, with an extremely low likelihood of success.

The plea agreement specifically provided that: “The matter of sentencing is within the sole discretion of the Court. The United States has made no representations or promises as to a specific sentence. The United States reserves the right to: (a) Inform the Probation Office and the Court of all relevant facts and conduct . . . .”

In short, it is my view that this was not a plea agreement that bound the judge under Rule 11(c)(1)(C). If the judge thought it appropriate, he could have hit Walker with the statutory maximum sentence of 20 years.

The judge took Walker’s plea and deferred acceptance of the plea agreement. After reading the presentence report[v], the judge rejected the plea agreement in a thoughtful and extremely well-written and well-researched 27-page, heavily footnoted, opinion.

Greatly condensed and summarized, the judge recounted: (1) Walker’s stunning criminal history (although I think it likely because of the age of many of the prior convictions, and the maximum score limitation for certain relatively minor crimes, that Walker’s criminal history score was IV); (2) the fact that Walker warned his customers that other customers of his had overdosed; (3) the fact that the use of heroin and other opiates had risen to epidemic levels in West Virginia with the concomitant reality of a mounting death toll; (4) the fact that federal judges are not overworked so plea bargains are not necessary for the sake of judges; (5) that there is an inverse relationship between the increased number of federal prosecutors and each individual prosecutor’s caseload, thus suggesting that federal prosecutors do not need to plea bargain to handle their docket; (6) that the resolution of criminal charges by plea bargaining has replaced resolution by jury trial and that criminal jury trials in West Virginia (and throughout the nation) are few and far between; and (7) that jury trials provide an important public educational function.

Judge Goodwin then proposed a framework for evaluating whether plea bargains should be accepted by federal judges. He proposed four inquires. I do not want to summarize the judge’s analytics for fear that I will misrepresent him. It is better that I quote him (absent the footnotes) so I am entirely fair and so you, the reader, can evaluate the judge’s reasoning on your own. (“Fair and balanced” don’t you know!)

The judge wrote:

First, a court should consider the cultural context surrounding the subject criminal conduct. Here, that cultural context is a rural state deeply wounded by and suffering from a plague of heroin and opioid addiction.

Second, the court should weigh the public’s interest in participating in the adjudication of the criminal conduct charged by the indictment. The criminal jury trial is “fundamental to the American scheme of justice” and effectively promotes a motivated and educated populace that respects the law, holds faith in the judicial system, and is deterred from participating in crime. Jury trials serve the people’s right to be informed as to what occurs in their courts and reinforce the fact that the law comes from the people. Here, the public has a high interest in the adjudication of heroin and opioid crimes such as these because of the severity of the crisis occurring in our state. Education about and deterrence of heroin and opioid crimes is of paramount importance at this time.

Third, the court should consider whether “community catharsis can occur” without the transparency of a public jury trial. “Much like the lid of a tea kettle releases steam, jury trials in criminal cases allow peaceful expression of community outrage at arbitrary government or vicious criminal acts.” The crimes alleged in Mr. Walker’s indictment involve heroin and other opioids and are “vicious criminal acts.”

Fourth, the court should examine the plea agreement and, in light of the presentence report, determine whether the apparent motivation is to advance justice or, more probably, to expediently avoid trial. Here, the agreement trades a grand jury indictment charging three counts of distributing heroin, two counts of distributing fentanyl, and one count of being a felon in possession of a firearm for an information charging one count of distributing heroin. The principal motivation appears to be convenience.

Walker, Slip Op. at pp. 24-25.

I have several objections to the judge’s decision. I will catalogue them in no particular order and briefly.

Initially, the judge’s decision is impractical. Since the judge was not bound under Rule 11(c)(1)(C), he could have hit Walker with up to a 20-year sentence. Of course, the relevant conduct rules would have allowed the judge to consider the facts of the other counts in doing so even though Walker did not enter a guilty plea to those counts. Thus, the “truth in sentencing” function would have been satisfied.

Moreover, the grouping rules under the Guidelines would likely not push the Guideline range much higher than what was stipulated even if Walker had been convicted of the six counts. Still further, given the relatively small total quantities, imposing consecutive sentences, had Walker been found guilty of the six counts of the indictment, might well be deemed substantively unreasonable on appeal even if the judge thought more than 20 years was warranted. Judge Goodwin demonstrated that he is fully able to write a 27-page opinion rejecting the plea agreement, so he is obviously fully capable of writing a 27-page opinion justifying a significant upward departure or variance. After all, Walker’s guilty plea gave the judge 20 years to play with. In short, there was no practical need to reject the plea agreement even if the judge wanted to make Walker’s case an object lesson.

Still further, the government got a cooperation agreement out of Walker. The judge gives short shrift to that benefit. Weighing the costs and benefits to the government (and thus the public) in making deals with offenders is generally the province of the Executive and not the judiciary. Judge Goodwin encroached too far into the Executive’s prerogative when he proposed making it a standard procedure to question the prosecutor’s bona fides in making non-binding plea deals.[vi]

Additionally, and equally important, the judge’s decision will raise havoc with CDLs. Pray tell what is a zealous criminal defense lawyer to make of the judge’s opinion? Just exactly what is a CDL to tell a defendant about his or her options given the judge’s four-part test? At the very least, Judge Goodwin’s opinion is so open ended that I cannot conceive how a CDL could reasonably explain the risks and rewards of trying the case, cooperating with the government or even pleading guilty without a plea agreement to some but not all the charges in the indictment thus attempting to force the government to dismiss the remaining charges or make the effort to try the other counts.[vii]

Next, and without meaning to be overly snarky, give me a break, please, on the public educational function of criminal jury trials.[viii] If that function is truly satisfied by trials (and I doubt it, especially for very low-level drug dealers like Walker), that same function can be satisfied by a sentencing hearing where all the facts are laid out for the public to know and understand, especially when you have a skilled writer like Judge Goodwin who can explain, in accessible language, what is at stake.[ix]

Finally, Judge Goodwin has an evident nostalgia for jury trials. That sentiment is floating around among many other federal district judges of his vintage and mine. Guess what? It is our job to make jury trials available; it is not our job to shove them down the throats of those who don’t want them.

In summary, Judge Goodwin wrote a magnificent opinion.[x] It is, however, manifestly wrong.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] The Almanac of the Federal Judiciary (that judges like me deny reading) provides a glowing description of Judge Goodwin, including the notation that he leans slightly toward the criminal defense side. The Almanac is not publicly available because it is marketed to lawyers for a substantial fee. By sampling lawyers who practice before the particular judge, the Almanac is intended to give lawyers who are unfamiliar with the judge insights into such things as the judge’s legal and trial skills, his or her temperament, and his or her leanings in criminal cases generally and at sentencing specifically.

[ii] US v. Walker, 2:17-cr-00010 (S.D. W.Va., June 26, 2017).

[iii] The drug facts recited in the plea agreement are slightly different. Those facts are set forth in my description of the plea agreement.

[iv] See here for the 2016 Manual (click on Chapter 2).

[v] It is not available on CM/ECF.

[vi] There may be something else at play here that is equally concerning. In the indictment the government did not charge a § 924(c) count that would have imposed a consecutive sentence of least five years for the gun. That may have disturbed the judge, but if so, it is not evident from his opinion.

[vii] I know of no authority that would prohibit a defendant from pleading straight up to one or more counts but not all counts. I doubt that Judge Goodwin would have the authority to reject such a plea. While the government would have to make a decision about whether to try the rest of the case, it could decide “to hell with it.” It wouldn’t even have to ask the judge for permission to dismiss the remainder of the indictment. It could simply let the speedy trial clock run out. It is true, however, that this would take genitalia of steel for both the CDL and the prosecutor.

[viii] “My twenty-two years of imposing long prison sentences for drug crimes persuades me that the effect of law enforcement on the supply side of the illegal drug market is insufficient to solve the heroin and opioid crisis at hand. I also see scant evidence that prohibition is preventing the growth of the demand side of the drug market. Nevertheless, policy reform, coordinated education efforts, and expansion of treatment programs are not within my bailiwick. I may only enforce the laws of illicit drug prohibition. . . . . [But] [t]he law is the law, and I am satisfied that enforcing the law through public adjudications focuses attention on the heroin and opioid crisis. . . .”

Walker, Slip. Op. at pp. 26-27.

[ix] To protect cooperators while they are in prison, some courts like mine (with the 8^th heaviest criminal caseload in the nation on a per-judge basis) have developed methods to conceal cooperation language while still making plea agreements and transcripts of plea hearings available to the public. The Bureau of Prisons is also assisting with such efforts. For obvious reasons, I will not provide further details. Suffice it to state that, with encouragement and approval from the highest levels of the judiciary’s governance structure, a balance between the rights of the public and the press and the safety of cooperators has been struck.

[x] I tip my hat to Professor Doug Berman. See here.