Wake Forest Law Review

By John Van Swearingen

On Wednesday, November 23, 2016, the Fourth Circuit issued a published opinion in the civil case Rodriguez v. Bush. This matter was a habeas corpus petition brought by an offender sentenced to forty-five years in prison for drug trafficking. The United States District Court for the District of South Carolina denied Rodriguez’s petition under 28 U.S.C. § 2254 (2012), holding that Rodriguez’s claim for ineffective assistance of counsel failed to establish that his defense was prejudiced by his counsel’s performance. Rodriguez’s claim was rooted in his counsel’s failure to object to state trial judge’s denial of Rodriguez’s accepted plea offer. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Rodriguez’s petition on the basis that there is no federal or constitutional right to have a plea bargain accepted by a trial court, and therefore, his counsel’s failure to object could not establish prejudice to Rodriguez’s defense.

Facts and Procedural History

In 2009, on the day Rodriguez’s trial, the prosecutor offered Rodriguez and his co-defendants various plea bargains. The offer to Rodriguez was for a recommended sentence of 20 years, and Rodriguez’s co-defendants were made similar offers. The offers to the co-defendants were accepted by the court.

However, when Rodriguez’s counsel presented the plea offer to the trial judge, the judge rejected the offer, stating that “he was not going to accept the plea and that he was ready to try a case this week.” While Rodriguez’s counsel did attempt to convince the judge to accept the plea deal, he did not object on the record to preserve the rejection for appeal.

The state court denied Rodriguez’s motion for post-conviction relief, stating that his counsel’s failure to object did not prejudice Rodriguez’s defense and the trial court’s denial of the plea offer did not violate Rodriguez’s due process rights. Rodriguez then appealed to the South Carolina Supreme Court, but certiorari was denied. Rodriguez then filed a petition in federal court under § 2254.

The Ineffective Assistance of Counsel Claim

Strickland v. Washington, 466 U.S. 668, 687 (1984), governs ineffective assistance of counsel claims. Under Strickland, to prove ineffective assistance of counsel, Rodriguez must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”

Despite being a two-pronged test, a reviewing court is free to examine the prejudice prong first, as it is dispositive to the claim. Rodriguez was not prejudiced by his counsel’s failure to object to the rejection of the plea deal, because a defendant cannot be prejudiced by a claim that has no merit under governing law. Therefore, Rodriguez’s ineffective assistance of counsel claim fails.

There is No Due Process Claim to Have a Plea Deal Accepted by the Court

In Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012), the Supreme Court held that there is no federal right to have a judge accept a plea deal. The Court further clarified this point in Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012), explicitly stating that there can be no due process claim even where “a plea deal is accepted by the defendant but rejected by the judge.” Even further, there is no constitutional claim under the same facts. Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992).

Therefore, the governing law clearly states that Rodriguez, nor any other similarly-situated defendant, claims a right to have an accepted plea offer honored by a presiding judge. Rodriguez based his due process claim on the premise that such a right existed. Since the claim has no support under governing law, and because this same claim forms the basis of his ineffective assistance of counsel claim, both of his claims on appeal fail.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s denial of Rodriguez’s petition under § 2254. Both the ineffective assistance of counsel and due process claims were based on the premise that a defendant has a right to have a plea deal accepted by a presiding judge. Because no such right exists, Rodriguez’s claims were properly denied.

By Eric Benedict

On February 16, 2016, the Fourth Circuit Court of Appeals issued its published opinion in the criminal case, United States v. McLaughlin. Judge Wilkinson, writing for a unanimous panel, dismissed McLaughlin’s appeal. The panel used a published opinion to clarify which types of appeals fall within the perimeters of a plea bargain which waives the right to appeal a sentencing guideline range established at sentencing.

McLaughlin Accepts Plea Agreement for ATM Fraud

In 2014, Tineka McLaughlin pleaded guilty to violating 18 U.S.C. § 1344 by her participation in an ATM fraud scheme in North Carolina. McLaughlin entered into an agreement with prosecutors which, in part, required McLaughlin:

To waive…all rights…to appeal the conviction and whatever sentence is imposed on any ground, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing…”

[emphasis added]

At her plea hearing, McLaughlin verbally indicated that she understood that she retained only the right to appeal based on an upward departure of the sentencing. To calculate McLaughlin’s sentence, the judge used the “four-level role-in-the-offense enhancement” found in the United States Sentencing Guidelines at U.S.S.G. § 3B1.1(a) (the “role increase”). The provision provides for a four-level increase in the offense level “[i]f the defendant was an organizer or leader of a  criminal activity that involved five or more participants or was otherwise extensive….” The role increase resulted in a guideline imprisonment of fifteen to twenty-one months. The District Court then cited U.S.S.G. § 4A1.3(a)(1) to impose an upward departure sentence of twenty-seven months to reflect there seriousness of the defendant’s criminal history (the “recidivism departure”).

McLaughlin Appeals “Role-In-Offense” Sentence Increase

On appeal from the Eastern District of North Carolina, McLaughlin criticized the use of the role increase in calculating her sentence.  Citing her plea agreement, the United States moved to dismiss, arguing that the calculation of the role increase was a part of the “establishment of her advisory Guideline range” and thus, was waived in her plea agreement. McLaughlin in turn argued that since she did in fact receive an upward departure, she was free to appeal any part of her sentence. Counsel for McLaughlin did not appeal the recidivism departure.

The Fourth Circuit Concludes that McLaughlin Waived Appeals Grounds

Judge Wilkinson turned first to the text of the waiver to conclude that the grounds for appeal had been waived.  The court found an examination of the waiver provision in its entirety particularly instructive against McLaughlin’s claim of error.  Reasoning that the role increase is, by definition part of the establishment of the “advisory guideline,” the court concluded that appeals like McLaughlin are exactly what the waiver seeks to avoid. Notably, the Fourth Circuit explained that because the interpretation of plea bargains is rooted in contract law, and because contract terms must be interpreted in light of the agreement in its entirety, the waiver provision must include an appeal based on the role increase, since otherwise, other portions of the waiver would be rendered “mere surplusage.”

Judge Wilkinson next addressed McLaughlin’s contention that the agreement was ambiguous and should be construed in her favor to allow the appeal. However, the court found the meaning of the agreement clear in its prohibition of such an appeal, and the allowance of an appeal based on an upward departure.

Finally, the panel questioned the appeal’s propriety in light of the existence of  the available grounds, the recidivism departure. Although not mentioned by the court in this case, had McLaughlin appealed, the Fourth Circuit has previously explained that it would have “consider[ed] whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.” United States v. Harnandez-Villanueva.  However, as the court noted, this issue was not before the court.

The Fourth Circuit Determines that the Appeal as Waived and Dismisses

The court applied principles of contract interpretation to the interpretation of the plea agreement to find that it prohibited the appeal based on the role increase. The Fourth Circuit therefore found that McLaughlin waived her right to appeal the role increase and dismissed the appeal.