On Appeal from the United States District Court for the Eastern District of Pennsylvania
(D.C. No. 94-cr-00159-14)
Before: SLOVITER, Chief Judge, ROTH and MICHEL, *fn* Circuit Judges
This appeal by Amanda Mitchell, who pled guilty to engaging in a conspiracy to distribute cocaine, raises an issue of first impression for this court, namely, whether a criminal defendant who pleads guilty to distributing cocaine but reserves the right to contest the amount of cocaine for which she should be held responsible has a Fifth Amendment right not to testify during sentencing.
Mitchell and twenty-two other defendants were indicted for their roles in a cocaine conspiracy conducted between 1989 and March 1994, in Allentown, Pennsylvania. According to the indictment, defendant Harry Riddick led the conspiracy, purchasing large quantities of cocaine from various suppliers and selling the cocaine on a daily basis through couriers and street sellers to whom he provided cars and pagers for this purpose. Phill's Bar and Grill was the headquarters for the distribution ring.
Mitchell was charged in Count 1 with conspiring to distribute five or more kilograms of cocaine in violation of 21 U.S.C. Section(s) 846 and in Counts 11, 21 and 28 for distribution of cocaine within 1,000 feet of a school or playground on three specific occasions in violation of 21 U.S.C. Section(s) 860(a). Under 21 U.S.C. Section(s) 841, the mandatory minimum sentence for a defendant convicted of distributing at least five kilograms but less than fifteen kilograms of cocaine is ten years imprisonment. The Sentencing Guidelines may then be used to increase the sentence above the statutory minimum as high as life imprisonment if it is determined that defendant sold a greater quantity of drugs or had a greater role in the conspiracy. In this case, Mitchell's mandatory minimum sentence fell within her Guidelines range, which was 97 to 121 months imprisonment.
On October 16, 1995, Mitchell entered an open plea of guilty, i.e., her plea was not premised on a plea agreement, to all four counts but reserved the right to contest the quantity of cocaine which she distributed. During the plea colloquy the district judge sought to ensure that Mitchell understood her rights. The judge began by stating that Mitchell had been charged with distributing more than five kilograms of cocaine, but after Mitchell's attorney reminded the judge that she did not accede to the amount of drugs at issue, the judge agreed that the quantity would be determined at sentencing.
The district judge then told Mitchell of the possible range of punishment she was exposing herself to by pleading guilty. The judge noted that "the range of punishment here is very complex because we don't know how much cocaine the Government's going to be able to show you were involved in," app. at 1305, and then deferred to the Assistant United States Attorney for her explanation of the possible punishment. The government lawyer stated:
Ms. Miller [AUSA]: On Count 2, Miss Mitchell faces a mandatory minimum of ten years up to a maximum of life imprisonment, a maximum fine of $4 million, a mandatory minimum of five years up to a lifetime supervised release, and a $50 special assessment.
On each of Counts 11, 21 and 28, Miss Mitchell faces a mandatory minimum of one year imprisonment up to a maximum of 40 years imprisonment, a maximum fine of $2 million, a mandatory minimum of six years supervised release up to lifetime supervised release, and a $50 special assessment.
On all counts, Miss Mitchell would face a total of a mandatory minimum of ten years up to a maximum of lifetime imprisonment, a $10 million fine, a mandatory minimum of six years up to lifetime supervised release, and a $200 special assessment. That would be on all counts.
The Court: Okay. Now, the penalties you just set forth, Ms. Miller, assume there's a five-kilogram involvement?
Ms. Miller: That's correct, sir.
The Court: So those are the penalties if the Government can prove that you [Mitchell] were involved in five kilograms of cocaine distribution. Your lawyer says you're not, is that right?
Mr. Morley [Mitchell's Attorney]: That's correct, sir.
The Court: So if you're not, then the penalties would be less. App. at 1306-07.
Before accepting her plea, the district court stated that: "I find that there is a factual basis for the plea. I find that you understand your pretrial rights, your trial rights. I find that you understand as well as it can be understood the range of punishment to which you're exposing yourself including imprisonment." App. at 1322. The court also explained that Mitchell would be waiving her rights by pleading guilty, including specifically her Fifth Amendment right not to testify. App. at 1314. Mitchell then pled guilty.
Thereafter, in January 1996, the case against nine of Mitchell's co-defendants went to trial. Much of the trial testimony focused on Riddick's management of the cocaine operation. However, several of Mitchell's co-defendants who had pled guilty and agreed to cooperate with the government testified that Mitchell was one of Riddick's regular sellers. Shannon Riley ...