United States v. Filzen, No. 20-1071 (7th Cir. 2021)
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Filzen robbed seven Indianapolis stores while brandishing a firearm. He pleaded guilty to seven counts of Hobbs Act robbery, 18 U.S.C. 1951(a), and four counts of brandishing a firearm during and in relation to a crime of violence, section 924(c)(1)(a)(ii). The government dismissed three brandishing counts and moved for a three‐level sentence reduction for acceptance of responsibility. The plea agreement states that “if the Court accepts this plea agreement, the Court will sentence the defendant within the specific sentencing range set forth" and contains a sentencing range of 360-420 months’ imprisonment and payment of $900.00, “the mandatory special assessment fees imposed” under 18 U.S.C. 3013
The district court discussed with Filzen that “[t]here will be a special mandatory assessment of $100 for each count. The total is $900.” Filzen responded that he agreed. The court imposed a sentence of 360 months’ imprisonment but ordered that “Defendant shall pay a mandatory special assessment fee of $100 per count for a total of $1,100” without acknowledging the $200 discrepancy. No one noticed the mistake. Filzen appealed his sentence on the basis of the $200 difference in his special assessment and the fact that the district court did not offer him the opportunity to withdraw his guilty plea under Rule 11. The Seventh Circuit affirmed. On plain‐error review, the imposition of the correct, statutorily mandated special assessment although it differs by $200 from that in Filzen’s plea agreement need not be undone.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20 1071 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KORRTEL FILZEN, Defendant Appellant. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 18 cr 69 — Richard L. Young, Judge. ____________________ ARGUED DECEMBER 8, 2020 — DECIDED MARCH 16, 2021 ____________________ Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges. KANNE, Circuit Judge. Korrtel Filzen pled guilty to eleven felony o enses related to an armed robbery spree. His plea agreement stipulated that his sentence would consist of 360 to 420 months’ imprisonment and a special assessment of $900, as required by a statute that mandates a $100 special assess ment per felony count. The somewhat obvious issue is that $100 per count comes out to $1,100, not $900. And indeed, the 2 No. 20 1071 district court sentenced Filzen to pay a special assessment of $1,100. Although he did not object at the time, Filzen now challenges his sentence because of that $200 discrepancy. On plain error review, we find that the court’s imposition of the correct, statutorily mandated special assessment—alt hough it di ers by $200 from that in Filzen’s plea agree ment—need not be undone. We a rm. I. BACKGROUND From December 2017 to January 2018, Korrtel Filzen robbed seven Indianapolis auto parts stores while brandish ing a firearm. He was caught by law enforcement and then charged by a grand jury with seven counts of Hobbs Act rob bery, 18 U.S.C. § 1951(a), and two counts of brandishing a fire arm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(a)(ii). Filzen initially petitioned to plead guilty to all nine counts of the indictment. The government later ob tained a superseding indictment that attached a brandishing count for each robbery. In September 2019, Filzen entered into a plea agreement with the government. He agreed to plead guilty to eleven counts—four of the brandishing counts and all seven of the Hobbs Act robbery counts. In exchange, the government dis missed three brandishing counts and moved for a three level sentence reduction for acceptance of responsibility. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the plea agreement states that, “if the Court ac cepts this plea agreement, the Court will sentence the defend ant within the specific sentencing range set forth in Paragraph 9.” Paragraph 9 contains a sentencing range of 360 to 420 months’ imprisonment and a special assessment of No. 20 1071 3 “$900.00 …, which amount represents the mandatory special assessment fees imposed pursuant to Title 18, United States Code, Section 3013.” The agreement also includes an appeal waiver, which only reserves Filzen’s right to seek review of “the constitutionality of applying an 18 U.S.C. § 924(c)(1)(A)(ii) charge … to armed Hobbs Act Robberies.” The district court held a combined change of plea and sentencing hearing. During the change of plea portion of the hearing, the district court reviewed the plea agreement and discussed with Filzen that “[t]here will be a special manda tory assessment of $100 for each count. The total is $900 pay able to the clerk, United States District Court, Southern Dis trict of Indiana. Is all that your understanding and agree ment?” Filzen responded in the affirmative. The court later advised Filzen that, “if I choose not to follow the terms of the plea agreement, that is, the recommended sentencing level here, I will give you the opportunity to withdraw your plea of guilty; and if you choose not to withdraw your plea of guilty, I may impose a more severe sentence without being bound by the plea agreement.” Filzen responded that he un derstood. At the sentencing portion of the hearing, the district court stated that it accepted the plea agreement. The court imposed a sentence of 360 months’ imprisonment, the low end of the agreed upon range. But the court also ordered that “Defend ant shall pay a mandatory special assessment fee of $100 per count for a total of $1,100” without acknowledging the $200 discrepancy from the $900 stated in the agreement. Apparently, no one noticed the mistake. The court did not inform Filzen or the government that it was rejecting the plea 4 No. 20 1071 agreement, nor did it give Filzen the opportunity to withdraw the plea. Filzen’s counsel did not object. Filzen now appeals his sentence on the basis of the $200 difference in his special assessment and the fact that the dis trict court did not offer him the opportunity to withdraw his guilty plea under Rule 11. He requests that we reverse and remand so that he may make that choice. II. ANALYSIS Violations of Rule 11 do not cause “automatic vacaturs.” United States v. Davila, 569 U.S. 597, 610 (2013). Instead, they “call[] for across the board application of the harmless error prescription (or, absent prompt objection, the plain error rule).” Id. Filzen’s counsel did not object at sentencing, so we review for plain error. United States v. Linder, 530 F.3d 556, 562 (7th Cir. 2008) (citing United States v. Vonn, 535 U.S. 55, 59 (2002)). On plain error review, Filzen must show that “(1) there was an error, (2) the error is clear and obvious, (3) the error affected [his] substantial rights, and (4) the error seriously af fects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Williams, 946 F.3d 968, 971 (7th Cir. 2020) (citing United States v. Zacahua, 940 F.3d 342, 344 (7th Cir. 2019)). The first two elements are met here. Federal Rule of Crim inal Procedure 11(c)(1)(C) provides that “a specific sentence” agreed to under that subsection “binds the court once the court accepts the plea agreement.” The district court may re ject a Rule 11(c)(1)(C) plea agreement, but it must follow the Rule 11(c)(5) procedures when it does so. United States v. Lock wood, 416 F.3d 604, 607 (7th Cir. 2005). No. 20 1071 5 Here, the district court effectively rejected the plea agree ment when it failed to impose the specified sentence in its en tirety. Id. (“Rule 11[(c)(1)(C)] does not … allow for piecemeal acceptance of some portions of the plea agreement, but not others.”). And by failing to follow the Rule 11(c)(5) proce dures, including “inform[ing] the parties that the court re ject[ed] the plea agreement” and “giv[ing] the defendant the opportunity to withdraw the plea,” the district court commit ted a clear and obvious error. See United States v. Gibson, 356 F.3d 761, 766 (7th Cir. 2004) (“[B]ecause this error is apparent from the language of [the statute], the error was ‘plain.’”); see also United States v. Kemper, 908 F.2d 33, 37 (6th Cir. 1990) (“[O]nce the district court found grounds for rejecting the plea agreement, it was error for the court to impose a sentence without affording defendant Kemper an opportunity to with draw his guilty plea.”). Whether it constitutes reversible error under the third and fourth prongs of plain error review, however, requires a closer look at the record. See Davila, 569 U.S. at 611. For the substantial rights prong, the Supreme Court has instructed that a defendant—like Filzen— who seeks reversal of his con viction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); accord Williams, 946 F.3d at 973. Filzen faces an uphill battle to make this showing. True, the district court imposed a special assessment that was $200 greater than provided in the agreement. But Filzen agreed to plead guilty on favorable terms that greatly reduced his stat utory and guidelines sentencing exposure. Pursuant to the 6 No. 20 1071 plea agreement, the government dismissed three of the § 924(c) counts, which reduced Filzen’s mandatory term of imprisonment from 49 to 28 years and his guidelines range from 423–444 to 360–420 months. At sentencing, the district court acknowledged that Filzen’s actual sentence of 360 months’ imprisonment was “a downward variance based on the terms of the binding plea agreement.” Nevertheless, we need not decide whether Filzen’s sub stantial rights were affected because, “even if they were, we would not exercise our discretion to correct this error under the fourth element.” United States v. Pulliam, 973 F.3d 775, 781 (7th Cir. 2020). To start, Filzen received a lawful sentence. Indeed, under 18 U.S.C. § 3013(a)(2)(A), the district court was required to as sess $100 per felony count. See United States v. Austin, 907 F.3d 995, 998 (7th Cir. 2018); United States v. Nguyen, 916 F.2d 1016, 1020 (5th Cir. 1990) (“[T]he imposition of special assessments under section 3013 is mandatory.” (citing United States v. Munoz Flores, 495 U.S. 385, (1990))). Filzen’s agreed to $900 as sessment thus fell short for his eleven felony counts of convic tion. The math isn’t disputed: $100 x 11 = $1,100, not $900. And “[e]ven when a defendant, prosecutor, and court agree on a sentence, the court cannot give the sentence effect if it is not authorized by law.” Gibson, 356 F.3d at 766 (alteration in orig inal) (quoting United States v. Greatwalker, 285 F.3d 727, 730 (8th Cir. 2002)). So while “the entry of an illegal sentence is a serious error routinely corrected on plain error review,” United States v. Pawlinski, 374 F.3d 536, 541 (7th Cir. 2004), the district court’s alteration here corrected a legal error in the plea agreement. In light of that, we do not think that it seriously No. 20 1071 7 affected the fairness, integrity or public reputation of the ju dicial proceedings. Moreover, although we often reverse an error that in creased a defendant’s term of imprisonment because “[t]he risk of unnecessary deprivation of liberty particularly under mines the fairness, integrity, or public reputation of judicial proceedings” in certain cases, Rosales Mireles v. United States, 138 S. Ct. 1897, 1908 (2018), the same cannot be said for this error. We do not agree with Filzen that the district court’s $200 variance that brought the sentence in line with the statute had any such effect on the proceedings. “[W]e have stated that we will overturn a criminal conviction under this standard only when ‘necessary to avoid a miscarriage of justice.’” Gibson, 356 F.3d at 766 (quoting United States v. Raney, 342 F.3d 551, 559 (7th Cir. 2003)); see also Pulliam, 973 F.3d at 781. There is no miscarriage of justice in allowing Filzen’s conviction to stand in light of his lawful sentence.1 III. CONCLUSION The district court could not have lawfully imposed a $900 special assessment, and the lawful sentence that it did impose did not seriously affect the fairness, integrity or public repu tation of judicial proceedings. Although the Rule 11 violation was clearly an error, it is not a reversible one. We AFFIRM. 1 Although the government argues that the plea agreement’s appeal waiver should bar this appeal, we need not decide on that ground because we find no reversible error.
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