United States District Court, W.D. Wisconsin
WILLIAMS M. CONLEY JUDGE
into consideration the nature of the offense, as well as the
defendant, Lamontay Rivera's, personal history and
characteristics, this is to advise that I reject the plea
agreement entered into by the parties under Fed. R. Crim. P.
11(c)(1)(C). (Dkt. #48.) Although the court is cognizant that
it should not interject itself into plea negotiations, the
district court must explain why it finds the agreement
objectionable. United States v. Kraus, 137 F.3d 447,
453 (7th Cir. 1998).
outset, the court readily acknowledges the severity of
defendant Rivera's and his co-defendant Britt's
crime, having committed an armed robbery and no doubt
terrorized two young women working at a local Subway shop.
Similarly, consistent with the court's acceptance of the
binding plea agreement as to co-defendant Britt, the court
agrees that allowing both defendants to plead to armed
robbery, in violation of 18 U.S.C. § 1951 under Count 1,
is reasonable, particularly because it allows both defendants
the benefits of the First Step Act that would otherwise be
denied if found guilty of Count 2.
the court parts company with the parties is with the
treatment of defendant Rivera as fungible with defendant
Britt. Indeed, other than committing the same crime and both
being young, African-American males, they present very
different pictures under the statutory purposes of sentencing
set forth in 18 U.S.C. § 3553(a).
while each had relatively limited criminal histories, with
neither having spent any time in prison, Britt's past
adult conviction for attempted armed robbery of a juvenile,
along with Mark Parks, Jr. -- Parks fired three to four shots
and the victim sustained three bullet wounds (two to his
torso and one to his head) -- is of an entirely different
character than Rivera's past convictions. Indeed, perhaps
the most disturbing part of Britt's history is that he
proceeded with a second armed robbery after already
participating in such a horrific crime and outcome. As the
court noted at Britt's sentencing, that fact alone
justified the 84-month sentence agreed to by the parties.
contrast, Rivera's adult convictions were for theft at
the age of 17, for which he was required to pay court costs
and a fine, a crime Britt had already committed many more
times as a juvenile. At 18, Rivera was also convicted for
operating while under the influence of a controlled
substance, causing a serious accident involving a pedestrian.
Without in any way minimizing the seriousness of that crime,
and certainly not the injuries suffered by the pedestrian, a
DUI is not in the same category as Britt's earlier
attempted armed robbery. Similarly, Rivera's last adult
crime involved a domestic dispute between the mother and
grandmother of his child at the age of 19, for which he
received 45 days jail. While serious, I would note that
Britt, too, was charged with very similar conduct, involving
his grabbing the mother of his child "by the neck with
both hands" and throwing her to the ground.
the difference in the co-defendants' criminal history is
reflected in their actions on tape during the Subway robbery,
with Britt (the markedly shorter of the two defendants)
leading the way into the establishment with his gun pointed
directly and menacingly at the two clerks. In contrast,
Rivera follows Britt through the door and immediately (and
but for the circumstances, comically) falling to the ground.
At no point does Rivera appear to point his gun at anyone.
Instead, he follows Britt's lead throughout, initially,
to the back of the store, and then forward again. At most,
Rivera empties the cash register and directs one of the two
victims to stand near the counter, again, without raising his
gun. Certainly, each defendant's conduct is horrifying
and inexcusable, particularly with respect to terrorizing the
two, minimum wage counter clerks for $190. Still, Britt's
leadership and more outrageous conduct once again
differentiates him from Rivera.
and arguably most important for sentencing, given the young
ages of both defendants, there is an important distinction in
their response to past punishment and opportunities to do
better. In particular, when Rivera was removed from his
mother's custody and placed in the Orion Group Home in
Platteville, Wisconsin, he appeared to make substantial
progress in school, in sports, and in participation in
healthy, group activities. It was only when returned to his
home in Madison that Rivera fell back into the same routine
of drug and alcohol use, as well as running with a bad crowd.
(Presentence Investigation Report ¶¶ 72-73.) In
contrast, Britt performed poorly whether placed with his
mother, his grandmother, the Revive Group Home or the New
Beginnings Group Home. (Id. ¶ 54.)
unless Rivera is able to bring his alcohol and drug use under
control, his past period of success may be a poor predictor
of future success, nor do Britt's past failures on
supervision guarantee future missteps, but it is in the
court's view a marked distinction between the two
co-defendants under § 3553(a).
judges tend to have difficulty with binding plea agreements
under Rule 11(c)(1)(C), which is why they are generally
disfavored and, in many courts, rejected out of hand.
See Robert E. Scott and William J. Stuntz, Plea
Bargaining as Contract, 101 Yale L J 1909, 1953-54
(1992) (explaining that the practice of using type C
agreements "is discouraged or prohibited in many
jurisdictions"); Frank H. Easterbrook, Criminal
Procedure as a Market System, 12 J Legal Stud 289, 321
(1983) ("Although Rule 11 allows a bargain fixing a
particular sentence, with the consent of the judge, this
option is rarely used."). At least for now, however,
this has not been this court's practice. Rather, as
contemplated by the Rule, I will accept type C agreements
where consistent with my statutory obligations as the
sentencing judge. For all the reasons set forth above, I
cannot in good conscience give the same sentence to defendant
Rivera as I did to his co-defendant, Britt.
light of this ruling, the clerk's office is directed to
schedule an in-person status conference next week, at which
the defendant will be offered the opportunity to withdraw his
plea of guilty, and both sides ...