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United States v. Kenney

United States Court of Appeals, First Circuit

June 25, 2014

ROBERT C. KENNEY, Defendant, Appellant

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W. Daniel Deane, with whom Nixon Peabody LLP was on brief, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney and Michael J. Crowley, Assistant United States Attorney, were on brief, for appellee.

Before Lynch, Chief Judge, Torruella and Howard, Circuit Judges.


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HOWARD, Circuit Judge.

After pleading guilty to drug distribution, robbery, and firearm charges, Robert Kenney now seeks withdrawal of his guilty plea. He argues that the district court erred in failing to assess his competency, that it inadequately assessed whether his plea was " knowing" and " voluntary" within the meaning of Fed. R. Crim. P. 11, and that his trial lawyer failed to provide him with effective assistance. Kenney also challenges the district court's imposition of a ten-year mandatory minimum sentence, contending that the district court gave him inadequate notice of the evidence on which it relied and that it incorrectly evaluated his claim of sentencing factor manipulation. Finding no error, we affirm.


The morning of February 11, 2011 promised to be a busy one for Kenney and his two co-conspirators, Christopher Littlejohn and Ramone Arakelow. Well before dawn, the trio piled into Kenney's truck and drove to a parking lot in Saugus, Massachusetts, where a fourth conspirator awaited them. Posing as law enforcement officers, the four would then break into the apartment of two Brazilian drug dealers, restrain the occupants, and abscond with five kilograms of cocaine and $200,000 in cash. In preparation for the robbery, Kenney had obtained a Boston Police Department patch and police light, along with knives, duct tape, and zip ties to restrain the apartment's denizens. Kenney had also discussed the layout of the apartment with Littlejohn and the fourth conspirator, and arranged to break in at a time when only one of the drug dealers was home and when an associate would be present to open the door.

Unfortunately for the would-be robbers, there was no apartment, no cocaine, and no money. Worse still, there was not even a fourth conspirator. Instead, the " co-conspirator" awaiting them in the parking lot was a cooperating witness (" Informant 2" ). After Kenney, Littlejohn, and Arakelow entered Informant 2's car and reviewed their plans for the heist, Informant 2 signaled to law enforcement and the three were arrested.

In reality, the planned burglary was a reverse sting operation devised by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (" ATF" ), which had been investigating Kenney since the spring of 2010 in connection with the illegal sale of firearms. Between May and December 2010, an ATF informant (" Informant 1" ) had arranged four firearm purchases with Kenney. When Kenney alluded during one of these sales to a " safe job" he had previously performed, Informant 1 told him about the Brazilian drug dealers' stash-house, which Kenney expressed immediate interest in robbing. Informant 1 continued to weave this fiction in subsequent meetings with Kenney, introducing him to a " business partner" (in reality Informant 2) with whom Kenney planned the robbery.

The robbery scheme may have been quixotic, but its consequences were all too real for the conspirators. On March 16, 2011, a grand jury indicted Kenney, Littlejohn, and Arakelow for conspiracy to possess with intent to distribute at least five kilograms of cocaine, 21 U.S.C. § § 841(a)(1), 846, and conspiracy to commit robbery affecting interstate commerce, 18 U.S.C. § 1951.[1] Kenney was also

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charged as a felon in possession of a firearm in four counts arising from his 2010 gun sales.

The primary issues on this appeal first surfaced at Kenney's arraignment in April 2011, when defense counsel informed the Magistrate Judge that Kenney " ha[d] a serious medical condition," that he had undergone brain surgery, and that he was not receiving medical treatment at the facility in which he was being held. The Magistrate Judge replied that she would " address any motion that [she] need[ed] to," but suggested that Kenney's counsel " work with the Government and . . . see if something can be done less formally."

Kenney soon entered into early plea negotiations with the government. In a missive to the Assistant U.S. Attorney, defense counsel indicated that " Mr. Kenny [sic] is suffering from ill health. His condition is deteriorating rapidly. Therefore, it would be in everyone's best interest to come to an agreement sooner rather than later." Toward that end, Kenney moved for the preparation of a pre-plea presentence report (" PSR" ), citing " serious health issues" and indicating a desire to plead guilty. The pre-plea PSR, issued in January 2012, stated that Kenney had undergone brain surgery in 2009 to remove a tumor, that he was taking several prescription medications, and that he reported no mental, behavioral, or emotional problems. Kenney's girlfriend did state, however, that he suffered from " some undiagnosed mental health issues because his moods fluctuate[d] and he [could] be temperamental" and that according to Kenney's relatives, " his mood ha[d] changed since the surgery."

Kenney also filed an ex parte motion requesting $10,000 in Criminal Justice Act (" CJA" ) funds to engage an expert witness to testify about Kenney's mental health as it bore on culpability for sentencing purposes. The motion alluded to Kenney's 2009 brain surgery and further stated: " Based on observations of undersigned counsel, as well as conversations with the Defendant's daughter, it appears as though the Defendant suffers from one or more mental diseases or defects," which had " never been properly diagnosed or treated." It suggested that " several complex factors contributing to [Kenney's] behavior leading up to the charged offenses could only be determined by a forensic psychologist," and therefore that the proposed expert's testimony " would prove extremely helpful to the Court in determining the appropriate sentence for the Defendant." The district court denied this motion, finding the requested sum " unreasonably high." Kenney filed a second such motion in November 2011, this time seeking $7,000 and attaching a letter from the putative expert deeming it " absolutely indicated to conduct an evaluation of criminal responsibility as decisionmaking, and/or other mental faculties, may have been affected" by the brain surgery. The district court granted this motion in part, allowing a maximum expenditure of $4,000.

In March 2012, Kenney signed a plea agreement with the government, in which he agreed to provide substantial assistance in the prosecution of Arakelow. In exchange, the government would dismiss the robbery conspiracy charge, recommend a below-Guideline sentence, and move under 18 U.S.C. § 3553(e) for relief from the ten-year mandatory minimum sentence on the drug conspiracy count. At Kenney's change-of-plea hearing on March 15, however, defense counsel informed the court that Kenney wished to withdraw from the plea agreement and plead guilty to all

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counts without the benefit of the agreement. Kenney made no objection to his lawyer's statement, and the district court proceeded to accept his plea on that basis.

Shortly thereafter, Kenney sent a letter to his attorney claiming to have received threats and suggesting a desire to withdraw the guilty plea.[2] On March 22, Kenney's lawyer brought this letter to the court's attention at the final conference before Arakelow's trial. While admitting that he was " confused by" the letter, defense counsel took it to mean that Kenney " was forced to not take the government deal because of what he [was] being labeled [i.e., a cooperator], and . . . what he [was] having to endure in jail." The district court responded that if Kenney wished to withdraw his plea, it would allow him to do so and go to trial alongside Arakelow in four days.

The following day, after meeting with Kenney, defense counsel sent a letter to the government and the court stating that Kenney was " adamant" that he did not wish to withdraw his guilty plea. The letter also shed light on Kenney's sudden repudiation of the plea agreement, explaining that Arakelow had been " tipped off to the fact that Mr. Kenney was cooperating" with the government and had accordingly made " veiled threats" to Kenney and, through recently released inmates, to members of Kenney's family. Although it was likely too late for Kenney to testify at Arakelow's trial three days later, the letter beseeched the government to honor the plea agreement notwithstanding Kenney's refusal to cooperate. The government declined to do so, and three days later, Kenney appeared before the court and confirmed that he did not wish to withdraw his guilty plea.

The case proceeded to sentencing on November 29, 2012.[3] In his sentencing memorandum, Kenney argued inter alia that the district court should disregard as " sentencing factor manipulation" the five kilograms of cocaine ATF added to the conspiracy, which subjected Kenney to a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). The government sought to rebut this argument by pointing to several recorded conversations involving Kenney that were admitted into evidence at Arakelow's trial. At sentencing, the court agreed with the government's interpretation of the recordings, concluding that " Kenney was the ringleader, the mastermind . . . the recruiter, and an enthusiastic participant in this scheme." The court accordingly rejected Kenney's sentencing factor manipulation argument and imposed the mandatory minimum sentence of 120 months' imprisonment. This appeal followed.


A. Conviction

Kenney contends that his guilty plea must be vacated for three reasons: because the district court 1) failed to evaluate sua sponte his competency to plead guilty and 2) inadequately probed whether his plea was " knowing" and " voluntary" as required under Fed. R. Crim. P. ...

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