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Fiorito v. United States

United States Court of Appeals, Eighth Circuit

May 3, 2016

Michael Fiorito Petitioner - Appellant
v.
United States of America Respondent - Appellee

Submitted: March 16, 2016

Appeal from United States District Court for the District of Minnesota - Minneapolis

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Michael Fiorito pleaded guilty to one count of mail fraud. While awaiting sentencing and against the advice of counsel, Fiorito filed several letters requesting to withdraw his guilty plea. The district court[1] granted Fiorito's request and released him from the plea agreement. Fiorito proceeded to trial and was convicted. He filed a motion collaterally attacking his conviction pursuant to 28 U.S.C. § 2255, arguing, inter alia, that the district court violated his Sixth Amendment right to counsel by considering and granting his pro se request to withdraw his guilty plea without first conducting a hearing under Faretta v. California, 422 U.S. 806 (1975). The district court rejected Fiorito's claims but granted a certificate of appealability on the following question: "Was Fiorito deprived of his Sixth Amendment right to counsel when [the district court] granted Fiorito's pro se request to withdraw his guilty plea?" We hold that he was not, and we therefore affirm.

I.

In June 2007, a grand jury indicted Fiorito for three counts of mail fraud and one count of conspiracy to commit mail fraud. The case was assigned to Judge Magnuson.

After extensive negotiations with his counsel, the Government presented Fiorito with two alternative plea offers: a "determinate deal" and an "indeterminate deal." Under either, Fiorito would plead guilty to one count of mail fraud and the remaining counts would be dismissed. In addition, the Government would recommend a three-level downward adjustment for acceptance of responsibility under USSG § 3E1.1 if Fiorito "fully acknowledge[d] complete responsibility for the offense of conviction and all relevant conduct." Beyond these common features, however, the plea offers differed significantly.

Under the determinate offer, the parties would not dispute the application of the sentencing guidelines. Instead, Fiorito would stipulate to a guidelines range of 100-125 months, and the Government would recommend a sentence of 100 months' imprisonment. The indeterminate offer, in contrast, permitted Fiorito to object to assertions in the presentence investigation report ("PSR") regarding his conduct and the application of the guidelines. Under this offer, the Government could attempt to show at the sentencing hearing that Fiorito's offense level under the guidelines was significantly higher than the offense level stipulated under the determinate offer. Against the advice of counsel, Fiorito chose the indeterminate offer.

After Fiorito pleaded guilty, the probation office issued a PSR that included a two-level enhancement for obstruction of justice, proposed no reduction for acceptance of responsibility, and calculated a guidelines range of 151-188 months' imprisonment. Fiorito objected to virtually all the factual assertions and guidelines calculations in the PSR. The district court scheduled an evidentiary hearing regarding these disputes.

In an attempt to avoid an extensive evidentiary hearing, the Government extended an offer to resolve the PSR disputes under conditions similar to the determinate offer Fiorito had earlier rejected. Specifically, the Government offered "to enter into a supplemental stipulation" in which the parties would recommend a sentence of 100 months' imprisonment. In addition, the Government would recommend that this sentence be served concurrently with a 120-month term of imprisonment that Fiorito already was serving as a result of an unrelated state conviction. If Fiorito did not accept this offer, the Government warned that it would ask the court to impose a consecutive sentence at the top of the applicable guidelines range.

Fiorito regarded the Government's ultimatum as a breach of the plea agreement. The Government denied that it was in breach, noting that the agreement required the Government to recommend the acceptance-of-responsibility reduction only if Fiorito "fully acknowledge[d] complete responsibility for the offense of conviction and all relevant conduct." The Government contended that it had the right to refuse to recommend the reduction under the indeterminate agreement because Fiorito, in his objections to the PSR, denied that he had committed any of the conduct alleged in the indictment.

Fiorito, his counsel, and the Government contacted the district court numerous times about this dispute. Fiorito's counsel filed a motion seeking to enforce the plea agreement or, in the alternative, to withdraw the guilty plea. That same day, Fiorito wrote a letter to the district court requesting to withdraw his plea due to the Government's breach. The Government responded and urged the court to let Fiorito withdraw his plea because he denied engaging in any of the conduct charged in the indictment.

Before the district court could respond to any of these documents, Fiorito's counsel filed a motion to withdraw the previous motions to withdraw Fiorito's guilty plea. However, this motion reiterated Fiorito's position that the Government was breaching the plea agreement and sought enforcement of it. The Government denied that it was in violation of the agreement but again urged the court to allow Fiorito to withdraw his guilty plea. The district court denied the motion to enforce, noting that the Government had not violated the agreement. In its order, the court ...


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