Argued March 26, 2015
Appeal from the United States District Court for the District of Maryland, at Baltimore. (1:09-cr-00478-RDB-1). Richard D. Bennett, District Judge.
Andrew Robert Szekely, LAW OFFICES OF ANDREW R. SZEKELY, LLC, Greenbelt, Maryland, for Appellant.
John Francis Purcell, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Before NIEMEYER, KING, and HARRIS, Circuit Judges. Judge Harris wrote the opinion, in which Judge Niemeyer and Judge King joined.
PAMELA HARRIS, Circuit
For months, Savino Braxton (" Braxton" ) insisted on exercising his right to go to trial, despite the substantial mandatory minimum penalty he would face if convicted. On what would have been the first day of trial, however, Braxton reversed course and accepted the government's plea offer. Because the district court impermissibly participated in the discussions that led to Braxton's change of heart, we vacate and remand for further proceedings.
Braxton was charged with possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841(a) (2012). Ordinarily, this charge carries a mandatory minimum penalty of ten years' imprisonment. 21 U.S.C. § 841(b)(1)(A) (2012).
But where the defendant, like Braxton, has a prior felony drug conviction, the government may elect to file a prior felony information, effectively doubling the mandatory minimum to twenty years' imprisonment. See id.; 21 U.S.C. § 851(a) (2012).
In the fall of 2012, Braxton discussed the possibility of a guilty plea with his court-appointed counsel, Arcangelo Tuminelli (" Tuminelli" ). During those discussions, Tuminelli expressed concern that if Braxton did not plead guilty, the government might choose to file a prior felony information under § 851. Unswayed, Braxton refused to plead guilty and moved for the appointment of new counsel, complaining that Tuminelli was " not interested in taking the case to trial" and had " vehemently goad[ed] [him] to plead guilty." J.A. 36-37. During a hearing on that motion, the district court indicated that it did not " find it really to be a situation where [Braxton] should get substitute counsel," and Braxton agreed to withdraw his request. J.A. 112.
Meanwhile, on November 19, 2012, Tuminelli's fears were realized: The government indeed filed a prior felony information under § 851. As a result, Braxton faced a mandatory minimum penalty of twenty years' imprisonment if ...