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Wiggins v. United States

United States Court of Appeals, Eighth Circuit

August 16, 2018

Theodore S. Wiggins Movant - Appellant
v.
United States of America Respondent - Appellee

          Submitted: March 16, 2018

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         Facing drug charges, Theodore Wiggins rejected two plea offers: one providing for a sentence of 15 years in prison and the other providing a sentence range of 10 years to life with the government restricted to arguing for a within United States Sentencing Guidelines range. He then stood trial, was found guilty by a jury, and received a mandatory sentence of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). After appealing his conviction and sentence with no success, Wiggins brought this 28 U.S.C. § 2255 action, alleging his counsel was ineffective for failing to advise him that he would receive a mandatory life sentence if convicted. The district court agreed and ordered the government to reoffer Wiggins the plea bargain that carried a sentence of 10 years to life imprisonment. Wiggins accepted the offer, and the court sentenced him to 20 years imprisonment. Wiggins now claims the court erred in reinstating only one of the two plea offers. We disagree.

         I. Background

         In June 2011, Wiggins was charged with conspiracy to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 ("Count 1") and distribution of some quantity of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) ("Count 8"). Count 1 carried a statutory sentence of 10 years to life in prison, and Count 8 carried a 20-year maximum sentence. 21 U.S.C. § 841(b)(1). However, the government sought sentence enhancements based on Wiggins's two prior felony drug convictions: one for distribution of a controlled substance and one for possession of a controlled substance. 21 U.S.C. §§ 841(b)(1) and 851. As a result of these enhancements, Count 1 was punishable by a mandatory sentence of life in prison, and Count 8 was punishable by a 30-year maximum sentence. Id.

         Prior to trial, the government extended two plea offers to Wiggins. The first was a binding plea agreement for a 15-year sentence. The second required Wiggins to plead guilty to a lesser offense under Count 1, with the understanding that he could argue for the 10-year mandatory minimum sentence while the government would recommend a sentence within the Sentencing Guidelines range. Wiggins rejected both offers. The case proceeded to a three-day trial, and the jury found Wiggins guilty on both counts. Applying the sentence enhancements, the district court sentenced Wiggins to life imprisonment, the mandatory sentence, on Count 1, and 30 years imprisonment, the maximum sentence, on Count 8, to be served concurrently. Wiggins appealed his conviction and sentence, which we affirmed. United States v. Wiggins, 747 F.3d 959, 965 (8th Cir. 2014).

         Wiggins then filed a timely § 2255 motion, asserting, as relevant here, that his appointed defense counsel was ineffective for failing to advise him that he would be subject to a mandatory life sentence if convicted at trial. At the evidentiary hearing, counsel testified that, at the time he represented Wiggins, he believed the conspiracy-to-distribute-cocaine charge contained in Count 1, when enhanced by two prior drug offenses, was punishable by a prison sentence of 30 years to life. But, he believed that one of Wiggins's two prior drug offenses did not qualify for the enhancement and that Count 1 therefore was actually punishable by a sentence of 20 years to life. It is undisputed that Counsel's understanding was in error. Counsel conveyed this erroneous understanding to Wiggins, and he and Wiggins discussed, on numerous occasions, the consequences of going to trial versus accepting one of the two alternative plea offers. Wiggins rejected the idea of a non-binding plea offer and stated he was unwilling to enter into an agreement that could result in a sentence of over 10 years because he was innocent and he wanted to see his daughter graduate from high school. Wiggins admitted his guilt at the § 2255 evidentiary hearing, but testified that when he rejected the plea offers, he believed the judge could sentence him to as little as 20 years if convicted. Wiggins stated that if he had known the truth-that conviction on count 1 carried a mandatory life sentence-he would have accepted the 15-year offer.

         On August 18, 2016, the district court granted Wiggins relief on his ineffective assistance of counsel claim, finding defense counsel performed deficiently in the plea negotiation process and Wiggins had shown prejudice. The court accepted Wiggins's testimony that he would have entered into one of the plea agreements had he known that conviction at trial would result in a mandatory life sentence and the court concluded it would likely have accepted either of the plea agreements. The court found, however, that it was "not credible that [Wiggins] would have accepted a binding plea agreement with a 15-year sentence." In support of this conclusion the court noted that, in the face of overwhelming evidence against him Wiggins continued to adamantly deny his guilt, was firmly unwilling to accept a plea bargain that could result in a sentence of over 10 years, and his trial resulted in significant costs to the government. The court therefore concluded that the proper remedy was to order the government to reoffer Wiggins only the second plea option, which required Wiggins to plead guilty to Count 1 and face a sentence of 10 years to life in prison.

         On October 11, 2016, Wiggins pled guilty to conspiracy to distribute 500 grams or more of cocaine and 28 grams or more of cocaine base, a lesser-included offense to Count 1. The district court determined the Sentencing Guidelines range was 110 to 137 months imprisonment, limited by the 120-month statutory mandatory minimum. The court sentenced Wiggins to 20 years imprisonment, entering judgment on December 20, 2016. Wiggins appealed on December 22, 2016, challenging the district court's decision to reinstate only one plea offer, as opposed to both. After we issued a certificate of appealability, the government filed a motion to dismiss the appeal as untimely.

         II. Discussion

         We first address the government's motion to dismiss. Under Fed. R. App. P. 4(a)(1)(B)(i), Wiggins was required to appeal "within 60 days after entry of the judgment or order appealed from." A judgment or order is "final," and thus appealable, if it is "final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved." Andrews v. United States, 373 U.S. 334, 340 (1963) (internal quotation marks omitted). The government contends Wiggins's appeal-filed December 22, 2016-was untimely because it was not filed within 60 days of either: (1) the district court's August 18, 2016 order granting his § 2255 motion or (2) Wiggins's guilty plea on October 11, 2016.

         However, the order granting Wiggins's § 2255 motion did not become final and appealable until the district court resentenced Wiggins. See Andrews, 373 U.S. at 340 ("[U]ntil the court [resentences the petitioner or] . . . make[s] some other disposition with respect to [his] sentence[] . . ., none of the parties to this controversy will have had a final adjudication of his claims by the trial court in these § 2255 proceedings."); United States v. Stitt, 459 F.3d 483, 485 (4th Cir. 2006) ("Subsequent cases interpreting Andrews squarely hold that a district court's judgment vacating a sentence does not become final-and thus is not appealable-until the court has resentenced the defendant."). That is because, prior to resentencing, Wiggins did not know whether he had grounds to appeal. See Andrews, 373 U.S. at 340 ("Until the petitioner[] [is] resentenced, it is impossible ...


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