900 F.

2d 1524

UNITED STATES of America, Plaintiff-Appellee,

v.
Duvalier Antonio DAVIS, Defendant-Appellant.
No. 89-1086.

United States Court of Appeals,

Tenth Circuit.
April 16, 1990.
Rehearing Denied May 23, 1990.

William D. Welch, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty. and
Kathryn Meyer, Asst. U.S. Atty., with him on the brief), Denver, Colo.,
for plaintiff-appellee.
Philip A. Cherner of Stayton & Brennan, Denver, Colo., for defendantappellant.
Before McKAY, ANDERSON, and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.

Duvalier Antonio Davis appeals the judgment and sentence entered against him
following his plea of guilty to possession with intent to distribute a schedule II
controlled substance, crack cocaine, in violation of 21 U.S.C. Secs. 841(a)(1)
and (b)(1)(A). Vol. I tab 28. On appeal, Davis argues: (1) the trial court abused
its discretion in refusing to permit a conditional plea; (2) the trial court erred in
denying the defendant's motion to suppress evidence; and (3) the trial court
abused its discretion by refusing to depart from the sentencing guidelines.
Appellant's Brief at i. We affirm.

BACKGROUND
2

On November 18, 1988 a federal grand jury in Denver, Colorado indicted

Davis on three counts: (I) possession with intent to distribute more than 50
grams of crack (a mixture or substance containing cocaine base) in violation of
21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(iii); (II) employing or using a

person under the age of 18 years of age to aid and abet the possession with
intent to distribute more than 50 grams of crack in violation of 21 U.S.C. Secs.
845b(a)(1) and 845b(b); and (III) distribution of cocaine in violation of 21
U.S.C. Sec. 841(a)(1). Vol. I, tab 1. Davis initially pleaded not guilty to the
charges, Vol. I tab 2 and filed three motions to suppress evidence. Vol. I tabs 5,
8, and 9. After an evidentiary hearing, the trial court denied those motions. Vol.
II at 59.
3

Thereafter, Davis negotiated a plea agreement with the government. Under the
agreement, Davis agreed to enter a conditional guilty plea to Count I of the
indictment, reserving his right to appeal the court's pretrial orders pursuant to
Fed.R.Crim.P. 11(a)(2). In exchange for the guilty plea, the government agreed
to dismiss Counts II and III of the indictment. Vol. I tab, 14. The trial court,
however, refused to accept Davis' conditional guilty plea. Vol. IV at 6. On
February 1, 1989, Davis pleaded guilty to Count I of the indictment without any
qualifications, and the government dismissed the remaining two counts of the
indictment. Vol. IV at 8, 13. The court subsequently imposed a sentence of 135
months of incarceration, a five year supervised release, and a fifty-dollar
assessment. Vol. I, tab 28, Vol. VI at 38. The sentence was within the
applicable guideline range.

EFFECT OF THE GUILTY PLEA

4

Davis argues the trial court erred in denying two of the three motions to
suppress evidence. Appellant's Brief at 10. In response, the government argues
that because Davis pleaded guilty, the trial court's rulings on the suppression
motions are nonreviewable. Appellee's Brief at 7. Further, the government
argues that Davis' guilty plea precludes appellate review of the trial court's
refusal to accept the conditional plea. We agree with the government.

By entering a voluntary1 plea of guilty, Davis waived all nonjurisdictional

defenses. United States v. Nooner, 565 F.2d 633, 634 (10th Cir.1977). The plea
of guilty in Nooner foreclosed from review the trial court's earlier order
denying the motion to suppress. Id. Nooner applied Supreme Court precedent as
follows:

In Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d
235 (1973), the Supreme Court, reaffirming the trilogy of cases Brady v.
United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v.
Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); and Parker v.
North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), declared
as follows:

7 guilty plea represents a break in the chain of events which has preceded it in the
[A]
criminal process. When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may only attack the voluntary and
intelligent character of the guilty plea by showing that the advice he received from
counsel was not within the standards set forth in McMann [supra ].
8

Id.; See also, United States v. Huff, 873 F.2d 709, 712 (3rd Cir.1989)
(challenge to voluntariness of statements barred after entry of guilty plea);
United States v. Montilla, 870 F.2d 549, 552 (9th Cir.1989) ("as a general rule,
a guilty plea erases claims of constitutional violation arising before the plea").
Because the effect of the guilty plea was to waive all nonjurisdictional defenses,
we need not and do not review the trial court's denial of Davis' suppression
motions.

Further, Davis' entry of an unconditional and voluntary guilty plea forecloses

review of the court's refusal of the conditional plea. The law affords Davis
neither a right to enter a conditional plea nor a right to enter a plea bargain. See
Mabry v. Johnson, 467 U.S. 504, 510, 104 S.Ct. 2543, 2548, 81 L.Ed.2d 437
(1984) (defendant's "inability to enforce the prosecutor's offer is without
constitutional significance"); Montilla, 870 F.2d at 553 ("Montilla had no
constitutional right to a plea bargain") (citing United States v. Osif, 789 F.2d
1404, 1405 (9th Cir.1986)); Martinez v. Romero, 626 F.2d 807, 809 (10th
Cir.), cert. denied, 449 U.S. 1019, 101 S.Ct. 585, 66 L.Ed.2d 481 (1980)
(petitioner has "no constitutional right to a plea bargain on his own terms"). We
agree with the observation of the Ninth Circuit in Montilla: "A forced choice
between asserting a constitutional right at trial and accepting the government's
offer, while undoubtedly difficult, is not unconstitutional." 870 F.2d at 553
(citation omitted). While some may find this forced choice harsh, we find it to
be lawful and hold that by pleading guilty to Count I of the indictment, Davis
foreclosed appellate review of the suppression rulings and also the trial court's
refusal to accept the conditional plea.

CONDITIONAL PLEA
10

Presuming he is entitled to appellate review of the issue, Davis argues the trial
court abused its discretion by refusing to permit him to enter a conditional plea.
Appellant's Brief at 6. 2 We do not agree. Fed.R.Crim.P. 11(a)(2) provides:

11
Conditional
Pleas. With the approval of the court and the consent of the
government, a defendant may enter a conditional plea of guilty or nolo contendere,

reserving in writing the right, on appeal from the judgment, to review of the adverse
determination of any specified pre-trial motion. A defendant who prevails on appeal
shall be allowed to withdraw the plea.
12

Rule 11 "creates no enforceable 'right' to enter a conditional plea." United

States v. Daniel, 866 F.2d 749, 751 (5th Cir.1989) (quoting United States v.
Fisher, 772 F.2d 371, 374 (7th Cir.1985)). Rather, the rule vests the trial court
with discretion to permit entry of the conditional plea. Neither legislative
history3 nor case law indicates that a criminal defendant is entitled to enter a
conditional plea.

13

Davis contends that by adopting Fed.R.Crim.P. 11(a)(2), Congress rejected

certain challenges4 to the rule, and that "it would not be proper for a trial court
to reject a conditional plea for any of those reasons alone." Appellant's Brief at
8. Davis further argues that the court's rationale for rejecting the conditional
plea "amounted to a blanket prohibition on all conditional pleas" and that
"failure to exercise discretion is itself an abuse of discretion." Appellant's Brief
at 10.

14

Davis' argument is flawed in at least two respects. First, the fact that Congress
rejected arguments disapproving of conditional pleas does not mean that
Congress implicitly required a court to make findings before refusing or
accepting a conditional plea or that Congress thereby restricted the bases by
which a district court can deny a conditional plea. Davis is correct in observing
that Rule 11(a)(2) does not "state what factors are to be considered by the court
in guiding its discretion." Appellant's Brief at 8. The trial court has absolute
discretion with regard to accepting or rejecting the conditional plea. The court
can refuse to accept a conditional plea for any reason or for no reason.5

15

Second, the trial court's refusal of the conditional plea in this case was not a
"blanket prohibition" of the plea. Even though the law does not require an
explanation, the trial court stated his reasons for refusing the plea in this case:

16I am not going to go ahead and impose a penalty in this case after a presentence
...
report and the Defendant can shop and see what he wants to do, and then take an
appeal on the pretrial orders.
17

The Defendant would have to withdraw unequivocally all motions before the
Court accepts the plea. Considering the nature of what was inherent in those
motions, I will not entertain a Rule 11 matter, so an interlocutory appeal can be
taken up while the Defendant is serving his time....

18

Vol. IV at 6. Consequently, Davis' argument is not based entirely on fact. Even

if the trial court's ruling amounted to a blanket prohibition of all conditional
pleas, we are not persuaded that such a judicial outlook would constitute error
in any given case. Rule 11(a)(2) provides the court a procedural option to
accept a conditional plea. We know of no requirement placed on the court to
make findings when accepting or refusing a conditional plea.

SENTENCING GUIDELINES
19

Finally, Davis argues the court abused its discretion in refusing to depart
downward from the guidelines. He contends that because he made an offer of
cooperation to the government and because of the disparity in sentencing
between cocaine-based substances and powder cocaine, the trial court abused
its discretion in refusing to depart downward. Appellant's Brief at 16. "This
court reviews sentences imposed under the Sentencing Guidelines according to
the statutory standard provided by the Sentencing Reform Act of 1984 and
codified at 18 U.S.C. Sec. 3742." United States v. Smith, 888 F.2d 720, 723
(10th Cir.1989). Section 3742(e) provides, in relevant part:

20 Consideration.--Upon review of the record, the court of appeals shall determine

(e)
whether the sentence-(1) was imposed in violation of law;
21
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
22
23 is outside the applicable guideline range, and is unreasonable, having regard for(3)
24 the factors to be considered in imposing a sentence, as set forth in chapter 227 of
(A)
this title; and
25 the reasons for the imposition of the particular sentence, as stated by the district
(B)
court pursuant to the provisions of section 3553(c); or
26 was imposed for an offense for which there is no applicable sentencing guideline
(4)
and is plainly unreasonable.
27

Because of the language of the statute and the legislative history, we conclude
we lack jurisdiction to consider the issue of whether the court abused its
discretion in refusing to depart downward from the guidelines.

28

Davis stipulated that he possessed, with intent to distribute, 166.68 grams of

crack. Vol. I, tab 14. Section 2D1.1 of the sentencing guidelines places that
quantity of crack at a base offense level of 34. The court gave Davis a two-point
downward adjustment for acceptance of responsibility pursuant to Sec. 3E1.1.
Vol. I, tab 28. Thus, Davis' total offense level was computed at Level 32.
Although the government urged the court to assign a criminal history at
Category III (with its attendant guidelines range of 151-188 months), the court
found Category II appropriate. Vol. VI at 28-33. Accordingly, the court
determined the sentence guideline range was 135 months to 168 months, Vol.
VI at 30, and the court imposed a sentence of 135 months.
29

Rather than argue that the court miscalculated the base offense level or the
criminal history category, Davis argues the court erred in failing to view the
case from his perspective, Appellant's Brief at 15-18, and in not invoking the
catchall provision of Sec. 5K2.0 which permits the court to consider
unenumerated factors in mitigation of sentence. Appellant's Brief at 17. Davis
presents no argument and the record bears no indication whatsoever that the
court's refusal to depart from the guidelines was a violation of law. Rather, he
argues the court abused its discretion in refusing to depart downward.

30

Several other circuits have determined they have no jurisdiction to consider

whether a trial court abused its discretion in refusing to depart from the
guidelines. In United States v. Franz, 886 F.2d 973, 980 (7th Cir.1989), for
example, the Seventh Circuit held that 18 U.S.C. Sec. 3742 does not confer
appellate jurisdiction over refusals to depart. Id. at 980. In Franz, the court
wrote:

31

A review of the structure of section 3742 as a whole leads us to conclude that

Congress did not intend a district court's decision refusing to depart from the
guidelines to be appealable. As we have already noted, departures are an
integral part of the guideline application process. Thus, a district court's
decision to depart from the guidelines, no less than a court's decision refusing to
depart, could be characterized as "an incorrect application of the sentencing
guidelines" appealable under 18 U.S.C. Sec. 3742(a)(2). However, Congress
thought it necessary to include specifically section 3742(a)(3), providing for
appellate review of district court decisions to depart upward [emphasis added]
from the guidelines, within the statute governing appellate jurisdiction.
Therefore, if we were to interpret section 3742(a)(2) to allow appeals for
departure-related decisions as incorrect applications of the guidelines, we
would render section 3742(a)(3) redundant. Because Congress could not have
intended such a specific provision to be mere surplusage, we conclude that
Congress did not intend for departure-related decisions, including refusals to
depart, to be appealable under section 3742(a)(2).

32

Id. at 978.

33

The Franz court also explained that the legislative history supported the
position that an appellate court had no jurisdiction to review a district court's
decision not to depart from the applicable sentencing guidelines range:

34 Senate Report accompanying the bill that ultimately was adopted as the
The
Sentencing Reform Act makes it clear that not all sentences are to be appealable
under section 3742. "This section establishes a limited practice of appellate review
of sentences in the Federal criminal justice system." S.Rep. No. 225, 98th Cong.,
2nd Sess. 149 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182,
3332....
35

Id. at 978-79.

36

Subsequently, the Third Circuit also declined to consider the argument that the
district court erred by refusing to impose a sentence below the minimum
guideline range when a defendant had cooperated with the government and had
been an important witness against two other individuals. It held:

37 do not have jurisdiction to hear the appeal on this issue pursuant to 18

[W]e
U.S.C.A. Sec. 3742(a)(2).... Since it is a matter left for the district court's discretion
to refuse to depart from the Guidelines, and since [the appellant] does not allege that
the sentence is an improper application of the Guidelines, nor that it is a violation of
the law, we must affirm it.
38

United States v. Wickstrom, 893 F.2d 30, 33 (3d Cir.1989) (citations omitted).
See also United States v. Guerrero, 894 F.2d 261 (7th Cir.1990) (applying
Franz, a sentence within the guideline range and not imposed in violation of
law, or as a result of an incorrect application of the guidelines should be
affirmed); United States v. Tucker, 892 F.2d 8, 11 (1st Cir.1989) ("a district
court's decision not to depart from the Guidelines is not appealable"); United
States v. Whyte, 892 F.2d 1170, 1175 n. 14 (3d Cir.1989) (discretionary refusal
to depart is nonreviewable, but refusal to depart based upon misperception of
statute is appealable); United States v. Colon, 884 F.2d 1550, 1554 (2d Cir.)
(decision not to depart from the guidelines is "inherently discretionary" and
"Congress did not intend to provide appellate review of sentences that are
within the Guidelines correctly applied and are not illegal under [specific
subsections]"), cert. denied, --- U.S. ----, 110 S.Ct. 553, 107 L.Ed.2d 550
(1989). We are persuaded that the other circuits have analyzed the question
properly, and we know of no contrary authority.

39

We therefore join the Third and Seventh Circuits and hold that we do not have
jurisdiction to hear an appeal over the trial court's discretionary refusal to
depart downward from the guidelines. In short, when a sentence is within the
guideline range and is not imposed in violation of law,6 or as a result of an
incorrect application of the guidelines,7 then the district court's refusal to
exercise its discretion to depart downward from the guideline range is not
appealable.

40

Davis also argues the court abused its discretion in refusing to mitigate the
sentence based upon the "gross disparity in sentencing under the guidelines
between cocaine base and powder cocaine." Appellant's Brief at 17. Although
we have concluded we have no jurisdiction to review this issue, we note that
other circuits have considered constitutional arguments arising from the
disparate treatment of the two substances and have upheld the legality of the
guidelines. See United States v. Buckner, 894 F.2d 975 (8th Cir.1990) (the
"100 to 1 ratio" of cocaine to cocaine base in the guidelines does not violate the
due process clause of the Fifth Amendment or the cruel and unusual
punishment clause of the Eighth Amendment); United States v. Cyrus, 890
F.2d 1245, 1248 (D.C.Cir.1989) (the substantially higher term for cocaine base
possession than for possession of untreated cocaine did not violate the Eighth
Amendment against cruel and unusual punishment, the distinction between
cocaine and cocaine base was not arbitrary and irrational in violation of equal
protection, and the distinction was not unconstitutionally vague).

41

Davis does not argue and the record does not indicate that the court's refusal to
depart from the guidelines was a violation of law. Thus, we hold we do not
have jurisdiction to review, as a matter of abuse of discretion, the trial court's
refusal to depart downward from the guidelines.

42

AFFIRMED.

43

McKAY, Circuit Judge, concurring in part and dissenting in part:

44

By this decision, the court converts a rule into a license. In dealing with the
language of Rule 11(a)(2), the court reads into the phrase "with the approval of
the court" a license for trial courts to withhold their approval for any reason or
no reason without the possibility of review under any circumstances. In our
legal system, the instances are extremely rare in which grants of authority are
absolutely insulated from review. We should not read the language of Rule
11(a)(2) as one of those rare examples.

45

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46

L.Ed.2d 542 (1976), provides a striking example of just how unusual the cases
are in which judicial action escapes all review. Before the Thermtron decision,
28 U.S.C. Sec. 1447(d) looked like as clear a prohibition of appellate review as
one could write. With respect to orders remanding removed cases to state
courts, section 1447(d) states that: "An order remanding a case to the State
court from which it was removed is not reviewable on appeal or otherwise...."
28 U.S.C. Sec. 1447(d) (1982). In Thermtron, a district court remanded a case
to the state court from which it was removed for the reason that the district
court's docket was too crowded for the district court to hear the case on a
timely basis. See Thermtron, 423 U.S. at 342, 96 S.Ct. at 589. The Supreme
Court held, however, that although section 1447(d) normally protected remand
orders from review, a crowded docket was not a permissible reason for
remanding a case to state court. See id. at 351, 96 S.Ct. at 593.

46

Thermtron proves, therefore, that even where Congress announces an express

policy against review, there may be reasons given by a trial court for a decision
that may subject the decision to appellate review. In my judgment,
nonreviewability must be read into the language of Rule 11(a)(2) in order to
reach our present result, unlike Thermtron where the language of section
1447(d) was express. A fortiori, some limited scrutiny of clearly unlawful
reasons remains under Rule 11(a)(2). In this case, I am persuaded that the trial
court gave the one reason that it cannot give as a basis for its decision.

47

As the majority has noted, the trial court gave an explanation of why it refused
to give its consent to a Rule 11(a)(2) plea. I can read the court's statement no
other way than to say it rejects the underlying premise of Rule 11(a)(2) and
therefore will exercise no discretion whatever. As the majority noted, the court
said in support of its decision:

48

I am not going to go ahead and impose a penalty in this case after a presentence
report and the Defendant can shop and see what he wants to do, and then take
an appeal on the pretrial orders.

49

The Defendant would have to withdraw unequivocally all motions before the
Court accepts the plea. Considering the nature of what was inherent in those
motions, I will not entertain a Rule 11 matter, so an interlocutory appeal can be
taken up while the Defendant is serving his time....

50

Record, vol. 4, at 6. It may be that if the court had given no reason, but held
subjectively this attitude, its decision would have escaped review. It may also

be true, as has often been said, that a willful trial judge can find a way to
disguise successfully even inappropriate decisions. One should not ascribe such
motivation to trial judges, and this judge has not done so. The trial court having
been forthright, I believe it is our duty to review the matter and inform the trial
judges that however broad their discretion may be, they do not have authority to
refuse to exercise the discretion that Congress deliberately has given them
simply because they don't like the policy that underlies Congress's choice.
51

Aside from this issue, I agree with what the majority has said about the other
issues in the case.* My difference is that I would remand to the trial court with
direction to exercise Rule 11(a)(2) discretion.

Davis does not contest the fact that his guilty plea was voluntary. The record
indicates the trial court painstakingly assured the propriety of the guilty plea.
After the court exercised its prerogative and refused to accept the conditional
plea, the court recessed to enable Davis to confer privately with counsel. Vol.
IV at 7. When court reconvened, Davis responded to the court that he would
plead guilty:
THE COURT: Mr. Davis, in regard to your desire to appeal the Court's pretrial
orders, what are your wishes in that regard now, please?
MR. DAVIS: I will plead guilty.
THE COURT: Without any qualifications; is that correct?
MR. DAVIS: That's correct, your Honor.
Vol. IV at 7-8. Defense counsel then withdrew the motions to suppress:
THE COURT: ... Mr. Elliott, on behalf of Mr. Davis, I take it you are
withdrawing with prejudice those motions that have been filed previously, and
the Court has ruled on; is that correct, please?
MR. ELLIOTT: That is correct, your Honor. Likewise we would ask the Court
to delete paragraph D [regarding the conditional plea] of the plea agreement,
which is what the government consented to.
THE COURT: Is this agreeable to you, Mr. Davis?
MR. DAVIS: Yes, your Honor.

THE COURT: The record will so reflect.

Vol. IV at 8. The court advised Davis extensively on his constitutional rights
and assured the propriety of the guilty plea before accepting the same. Id. at 822.
Further, the Court reiterated at the plea hearing that one of the consequences of
pleading guilty was the preclusion of appellate review of the suppression
rulings. In discussing the Statement of the Defendant in Advance of Plea of
Guilty, the court reiterated that by pleading guilty, Davis waived his right to
appeal the suppression rulings:
THE COURT: ... there is some other language there that as a result of the
conditional plea pursuant to Rule 11(a)(2), I may appeal the denial [of the]
motion to suppress. You are withdrawing that opportunity to appeal that matter;
is that correct, please?
MR. DAVIS: That is correct.
Id. at 21.
2

Although by pleading guilty, Davis waived appellate review of this issue, we

choose to address the issue of refusal of the conditional plea to further clarify
the absolute discretion of the trial judge in accepting or rejecting a tendered
conditional plea

"The legislative history indicates that the rule was intended primarily to aid
courts and prosecutors, rather than defendants." Daniel, 866 F.2d at 751 n. 1

The challenges mentioned by Davis are as follows: (1) the procedure would
encourage a flood of litigation; (2) it tends to negate finality in the criminal
process; (3) it impinges on the effectiveness of appellate review for lack of a
full trial record, and; (4) it compels decision of constitutional questions that
otherwise might be avoided pursuant to the harmless error doctrine. Appellant's
Brief at 7-8

This same observation was made in United States v. Yasak, 884 F.2d 996, 999
(7th Cir.1989), regarding the assent of the government. The government "can
refuse to assent to a conditional plea for any reason or no reason; Rule 11(a)(2)
creates no enforceable right to enter a conditional plea." Id. (citing Fisher, 772
F.2d at 374)

The question is not presented, and we do not decide, whether a discretionary

refusal to depart downward can ever violate 18 U.S.C. Sec. 3553 and therefore

be reviewed under 18 U.S.C. Sec. 3742(e)(1). See United States v. Denardi,

892 F.2d 269, 275-85 (3d Cir.1989) (Becker, J., concurring in part and
dissenting in part)
7

Of course, if a district court does not exercise its discretion to depart downward
because it feels legally prohibited from doing so, i.e., it incorrectly concludes
that it has no discretion to depart downward, the sentence is reviewable under
18 U.S.C. Sec. 3742(e)(2). United States v. Lowden, 900 F.2d 213, 217-18
(10th Cir.1990)

As I understand the court's opinion, even in the broad discretion granted for
departure from the guidelines, it correctly has reserved the power of the circuit
to review that exceptionally broad discretion if not correctly applied or if the
application is illegal. United States v. Colon, 884 F.2d 1550, 1554 (2d Cir.),
cert. denied, --- U.S. ----, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989)