Theodore S. Wiggins Movant - Appellant
United States of America Respondent - Appellee
Submitted: March 16, 2018
from United States District Court for the Western District of
Missouri - Kansas City
WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
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.
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.
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).
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.
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.
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.
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.
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 ...