### PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. LEROYA COZAD, Defendant-Appellant. No. 20-3233

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

(D.C. No. 6:19-CR-10123-EFM-1)

Melody Brannon, Federal Public Defender (K ayla Gassmann, Appella te Attorney, with her on the briefs), Kansas City, Kansas, for Defendant-Appellant. Robert A. Parker, United Stat es Department of Justice, Criminal Division, Appellate Section, Washington, DC (James A. Brown, Assistant United Stat es Attorney, Topeka, Kansas; and Mona Lee M. Furst and Molly M. Gordon, Assist ant United States Attorneys, Wichita, Kansas, with him on the brief), for Plaintiff-Appellee.

Before BACHARACH , SEYMOUR, and PHILLIPS, Circuit Judges.

SEYMOUR , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### January 3, 2022

Christopher M. Wolpert Clerk of Court Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 12 This appeal raises one issue: whet her, under 18 U.S.C. § 3553(a), it is unreasonable for a district court to impos e a harsher sentence based on a defendant’s decision to plead guilty withou t a plea agreement. For the reasons explained below, we

hold that it is.

I Background Ms. Leroya Cozad was indicted on a si ngle charge of aiding and abetting the making of counterfeit currency in violation of 18 U.S.C. §§ 2, 4 71. During plea negotiations, she offered to plead guilty in exchange for the government’s

recommendation that she be sentenced to 48 months’ probation. The government

countered with an o ffer to recommend a custodial se ntence at the low end of the guideline range. She declined and entered an open plea. Following her plea, probation prepared a presentence investigation report that

recommended a custodial sentence of betw een 24 and 30 months based on the United States Sentencing Guidelines. The PSR’s gu ideline calculation reflected probation’s

conclusion that Ms. Cozad had “clearly demonstrated acceptance of responsibility for the

offense” and was therefore due a reduction of two levels under § 3E1.1(a) of the guidelines. 1 Neither party objected to the PSR, although both submitted sentencing memoranda advocating for their preferred outcome. Ms. Cozad advocated for a term of

1 Because Ms. Cozad’s adjusted offense le vel was below 16, she was not eligible for an additional one-level reduction under § 3E1.1(b). Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 23 probation. The government recommended a custodial sentence of 24 months, the same

recommendation it had offered to make du ring the abortive plea negotiations. The district court rejected both recomm endations and sentenced Ms. Cozad to a prison term of 27 months, the midpoint of th e guideline range. In explaining its decision, the district court said the following:

I think sometimes there’s sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right. And, in practice, one of the factors I’ve used to lean against a low-end guide line range are defendants who submit a plea without a plea agreement , without the agreements that typically happen in a plea agreement. That’s certainly their ri ght to plead without a pl ea agreement, but they do not have a right to a low end guidelin e range sentence, and so it’s always been my -- again this isn’t a hard-and-fa st rule by any means that I apply, but it’s always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in t hat, they’re entitled to additional consideration, which is wher e I start at a low end guideline range. But in my calculation, without a plea agreement, I have always started with looking more at the mi d-tier of the guideline range , which is where I think the guidelines initia lly envisioned that courts would operate, and not giving them the additional credit for ac tually entering into a plea agreement to do that. In this case , having thought about it obviously since our hearing last week, having looked through the briefs that have been filed in this case since that time, as well as additional info rmation I’ve received from the probation office and going b ack through the report as well, it’s my conclusion that , first of all, Ms. Cozad has not shown demonstration that en titles her to a variance from the guideline recommendation of a cu stodial sentence, and I cannot find that that variance has b een earned; and secondly, in light of the matters that I’ve just discussed overall, that a lo w-end guideline range sentence is not appropriate. Rec., vol. III at 42–44 (e mphasis added). Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 34 Ms. Cozad’s counsel objected, asserting th at “the Court has entered its sentence based on Ms. Cozad’s choice not to reach a pl ea agreement with the Government. That’s a procedurally unreasonable reas on to enter the sentence the Court described.” Rec., vol. III at 48. The district court disagree d, leading to Ms. Cozad’s appeal.

II Standard of Review We review a defendant’s sentence “for reasonableness under an abuse-ofdiscretion standard,” which applies whether th e sentence falls inside or outside of the guideline range. United States v. Henson , 9 F.4th 1258, 1284 (10th Cir. 2021) (quoting Peugh v. United States , 569 U.S. 530, 537 (2013)). The reasonableness of a sentence includes a procedural component, which relate s to the method by which a sentence was calculated, and a substantive component, wh ich relates to the length of the resulting

sentence. Id. In arguing that the district court impermissibly treated her open plea as an aggravating fact warranting harsher puni shment, Ms. Cozad raises a procedural reasonableness challenge. See United States v. Sayad , 589 F.3d 1110, 1116 (10th Cir. 2009) (“Generally, a district court’s use of an improper factor invokes procedural review.”); United States v. Pinson , 542 F.3d 822, 835–36 (10th Cir. 2008) (“While the weight the district court places on cert ain factors is reviewed for substantive unreasonableness, use of an improper factor is reviewed for procedural unreasonableness.”). Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 45 III Discussion At the outset, we think it is clear that the district c ourt sentenced Ms. Cozad more harshly than it otherwise would have but for her decision to plead guilty without entering into an agreement w ith the government. Although th e district court discussed Ms. Cozad’s criminal history and her failure to fu lly comply with the conditions of her bond, it did so while explaining its rejection of Ms. Cozad’s request for a noncustodial

sentence. See Rec., vol. III at 32, 41–42. When ex plaining its decision regarding the length of her prison term, the district cour t first described its customary practice of distinguishing defendants based on the nature of their plea. Then, in accordance with that custom and despite the government’s recommen dation of a sentence at the low end of the guidelines, the court proceeded to impose a sentence of 27 months at th e midpoint of the guideline range. Notably, although the district court stated that its practice was not “a hard-and-fast rule by any means,” the court did not explain why it was applying the rule

in Ms. Cozad’s case. Id. Similarly, although the district court made a passing reference to “the agreements that typica lly happen in a plea agreement,” id. , the court did not specify what those “agreements” are. On this record, therefore, we cannot but conclude that the district court gave Ms. Cozad a long er sentence than she otherwise would have received simply because she pled guilty without a plea ag reement. Whether it was permissible for the district court to do so a ppears to be a question of first impression in this or any other circuit. Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 56 The factors a court may consider in dete rmining a defendant’s sentence are set by statute. They are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just pu nishment for the offense; (B) to afford adequate dete rrence to criminal conduct; (C) to protect the public from furthe r crimes of the defendant; . . . (3) the kinds of sentences available; (4) the kinds of sentence and the se ntencing range established [by the sentencing guidelines] . . . ; (5) any pertinent policy statement [issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2)] . . . ; (6) the need to avoid unwarranted sentence di sparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restituti on to any victims of the offense. 18 U.S.C. § 3553(a). It is a fo rm of procedural error to base a sentence on a factor falling outside the scope of the considera tions enumerated in § 3553(a). United States v. Smart , 518 F.3d 800, 803 (10th Cir. 2008). For reasons of history, as well as cong ressional intent, appellate courts have interpreted § 3553(a) liberally. Henson , 9 F.4th at 1293; see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the backgr ound, character, and conduct of a person . . . which a court of th e United States may receive and consider for the purpose of imposing an appropriate sent ence.”). Nevertheless, a district court does not enjoy boundless discretion with respect to the facts it relies on at sentencing. For example, a factor may be impermissible because its consideration is prohibited by statute, see United States v. Story , 635 F.3d 1241, 1247–48 (10t h Cir. 2011) (holding that Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 67 18 U.S.C. § 3582(a) prohibited considering the defendant’s need for rehabilitation as a factor when deciding whether to impose a te rm of imprisonment or in determining its length); or because its consid eration burdens the exercise of a constitutional right, see United States v. Cabrera , 811 F.3d 801, 808-09 (6th Cir. 2016) (holding that a withinguidelines sentence was procedurally unr easonable because it was based on the defendant’s refusal to testify); or because the factor is simply irrelevant to the considerations enumerated in § 3553(a), United States v. Plate , 839 F.3d 950, 957 (11th Cir. 2016) (holding it unreasonable to sent ence a defendant to prison based on her inability to pay restituti on because this was “not among the factors listed in § 3553(a)”).

Even when the fact os tensibly relates to the defendant’s conduct or char acteristics, its consideration may be grounds for remand when the fact has no bearing on any of the aims of punishment set forth in § 3553(a)(2). See United States v. Burgos , 276 F.3d 1284, 1288–90 (11th Cir. 2001 ) (holding a defendant coul d not be given a harsher sentence due to her refusal to testify agai nst her husband in an unrelated case because doing so would not “‘reflect[] the seriousness’ of her own offense,” “promote respect for the law,” or “‘provide just punishment fo r the offense,’ to which she plead guilty”); cf.

Rita v. United States , 551 U.S. 338, 365 (2007) (Stevens , J., concurring) (noting that it Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 78 would be unreasonable for a district court to give “harsh sentences to Yankees fans and lenient sentences to Red Sox fans”). 2 Turning to the case at hand, we do not see how the fact of a defendant’s open plea, standing alone, bears any meanin gful relationship to the § 3553(a) factors. Certainly, it says nothing about a defendant’s “history and characteristics, ” § 3553(a)(1). At bottom, a plea agreement is a contract and, like any ot her contract, it requires mutuality of assent and an exchange of consideration. See United States v. Thompson , 814 F.2d 1472, 1479 (10th Cir. 1987); United States v. Miles , 902 F.3d 1159, 1160–61 (10th Cir. 2018). Since either party may reject the other’s offer or re fuse to negotiate entirel y, the fact that the parties failed to reach a mu tually satisfactory bargain, without more, can provide no insight into the defendant’s character. Fo r the same reason, the absence of a plea agreement provides no information that might aid a district court in determining how much punishment is sufficien t to comply with the purpo ses of sentencing set out § 3553(a)(2). To penalize a defendant based on the absence of a plea agreement alone is arbitrary. The government argues that a district court may consider the absence of a plea agreement because such agreements often include certain conditions, such as appellate

waivers. In United States v. Tena-Arana , 738 F. App’x 954, 961–64 (10th Cir. 2018)

2 Justice Stevens described the baseball-a llegiance hypothetical as a substantive error, but “‘[s]ubstance’ and ‘procedure’ are admittedly chameleon-like terms.” Rita, 551 U.S. at 383 n.6. (Scalia, J., concurring in part and co ncurring in the judgment). Justice Scalia, for example, described the same error as procedural. Id. Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 89 (unpublished), we held that a district court may consider a negotiate d appellate waiver at sentencing because such a wa iver may demonstrate an “a cceptance of responsibility” beyond the guilty plea itself and may therefore be relevant to the question of how much punishment is sufficient to achieve the goals of sentencing. The government reasons that if a sentencing court may grant additional leni ency in recognition of conditions in a plea agreement that show acceptance of responsibility, it follo ws that the court may view a defendant’s refusal to accept such conditions as demonstr ating a corresponding lack of acceptance and withhold that le niency. Accordingly, the government argues, because Ms. Cozad’s open plea was not subject to such conditions, the district court was entitled to “withhold the additional leniency.” This argument misses the mark. The issue in Tena-Arana , a nonprecedential opinion, was whether the district court could consider a defendant’s negotiated appellate waiver when deciding whether to vary down ward. It was not whether the court could vary downward based on the existence of an agreement in and of itself. Because the

district court in this case cited the absence of a plea agreement, rath er than the absence of an appellate waiver or any other term that an agreement might have included, TenaArana provides no support for the government. Furthermore, although we held in Tena-Arana that a district court “ may at least sometimes find” that an appeal waiver is re levant to the § 3553(a) factors, 738 F. App’x at 963, the presence of a waiver in an existing plea ag reement is fundam entally different

than the absence of an appeal waiver in an agreem ent that never happened and whose Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 910 terms remain purely hy pothetical. When the parties reac h an agreement, a district court can evaluate the terms, includi ng any waivers, in the context of the agreement as a whole to determine the degree to which the waiv ers may show some additional acceptance of responsibility. By contrast, when the defend ant enters an open plea, the court may not know whether any plea agreement was offered, let alone under what terms. Indeed, there is no evidence in this case that an appellate waiver was ever discussed. In these circumstances, without more information, it is unreasonable to penalize the defendant for the absence of an appellate waiv er in a nonexistent agreement. The government further argues that courts may “for uniformity purposes” grant “additional leniency” to defend ants who enter into plea ag reements and withhold it from those who do not. Aple. Br. at 23 (quoting United States v. Reina-Rodriguez , 468 F.3d 1147, 1158 (9th Cir. 2006)). 3 The government reasons that, were a court required to sentence a defendant who pleads open “to the sa me sentence he woul d have had, had he

3 In addition to Reina-Rodriguez, the government cites § 3553(a)(6) and the need to avoid “‘unwarranted sentence disparities’ among similarly s ituated defendants.” Aple. Br. at 23. Although the government’s argume nt on this point is not entirely clear, the thrust of it seems to be that § 3553(a)(6) implicitly instruct s courts to avoid unwarranted sentence similarities among defendants who accept plea agreements and those who do not. Having briefly gestured at this poi nt, however, the government does nothing to develop the argument, which in any case doe s not withstand scrutiny. Section 3553(a)(6) instructs courts to consider “the need to avoid unwarranted sent ence disparities among defendants with similar record s who have been found guilty of similar conduct.” But the manner of a defendant’s guilty plea has nothing to do with his record or criminal conduct, so the presence or absence of a plea agreem ent is entirely irrelevant to § 3553(a)(6). Moreover, because otherwise identical defe ndants may make different decisions with respect to a plea agreement, to impose differe nt sentences on that basis tends to create disparities among like defendants ra ther than to eliminate them. Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 1011 taken a plea agreement,” there would be “no compelling reason” for a defendant to accept the conditions of a plea bargain. See id. (quoting Reina-Rodriguez , 468 F.3d at 1158).

We are not convinced. As a preliminary matter, the government ’s argument proceeds from a false premise. A rule that forbids district cour ts from treating a defendant’s open plea as an aggravating fact in and of itself would not leave defendants with “no compelling reason” to enter a plea agreement. In cases wher e there are multiple potential charges, the government would still be able to leverage them during negotiations. See Fed. R. Crim. P. 11(c)(1)(A); Bordenkircher v. Hayes , 434 U.S. 357, 362–64 (1978) (holding that a prosecutor may pursue additional charges against a defendant who refuses a plea bargain). And even in cases where there is only a single vi able charge, the government

could threaten to recommend a harsher sentence or to pursue an aggressive interpretation of the guidelines. See Fed. R. Crim. P. 11(c)(1)(B), (C ). Consequently, because courts are free to take the government’s recommenda tion into account, a defendant who refuses to plea bargain would still risk receivi ng a higher sentence in many cases. More fundamentally, the government’s argument fails b ecause providing a “compelling reason” for a defendant to ente r a plea agreement, whether by granting “additional leniency” or withholding it, is not a valid sentencing rationale. Section 3553(a) provides that courts are to impose no more punishment th an is necessary to comply with the four penological goals en umerated in § 3553(a)(2). When a court Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 1112 imposes a sentence to achieve some other purpose, that sentence is unlawful. Burgos , 276

F.3d at 1289–90. We do not see how any of the permissibl e aims of sentencing are advanced by distinguishing between defenda nts based on the manner in which they plead guilty. Imposing additional punishment on a defendan t because her plea was not the result of a bargain does nothing to more accurately “r eflect the seriousness of the offense,” “promote respect for the law,” or “pro vide just punishment for the offense,” see § 3553(a)(2)(A); it does nothing to deter criminal conduct, see § 3553(a)(2)(B); it does nothing to protect the public from further crimes of the defendant, see § 3553(a)(2)(C); and it does nothing to address the defendant’s rehabilitative needs, see § 3553(a)(2)(D). Given the limited objectives of punishme nt enumerated in § 3553(a), we do not

find the Ninth Circuit’s decision in Reina-Rodriguez persuasive. In that case, the government declined to move for a downward departure under § 5K3.1 of the Sentencing

Guidelines because the defenda nt had not entered a plea agr eement under the district’s fast-track sentencing program. See Reina-Rodriguez , 468 F.3d at 1158. At sentencing,

the district court concluded th at the defendant was entitled to some leniency because he pled guilty but reasoned that “for uniformity purposes” a nd “to show respect to the plea process,” his sentence should no t be so low as to fall with in the guideline range that would have applied ha d he entered a fast-track agreem ent, which would have required him to waive his appeal. Id. at 1151. “Obviously if a court sentences the defendant to

the same sentence he would have had, had he taken a plea agreement, then there is no Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 1213 compelling reason for any defendant to take the plea offer,” the court reasoned. Id. On appeal, the Ninth Circuit held that the district court’s rationale was permissible, citing an earlier case holding that sent encing disparities caused by fast-track programs are not “unwarranted” under § 3553(a)(6). Id. at 1159–60 (citing United States v. Marcial– Santiago , 447 F.3d 715, 7 19 (9th Cir. 2006)). We do not find this reasoning sufficient to support the broad proposition that a district court may, “for uniformity purposes ” and to provide a “compelling reason” for defendants to enter plea agreements, exte nd “additional leniency ” to defendants who enter into plea agreements and withhold it from those w ho do not. The court in ReinaRodriguez did not explain how punishing a defe ndant based on the nature of his plea furthers a valid penological purpose under § 3553(a)(2) or re lates to any of the other § 3553(a) factors in general. To be clear, we do not pass judgment on whether Reina-Rodriguez was correctly decided. The Sentencing Commission adopte d § 5K3.1 at the direction of Congress, which sought to incentivize early plea de als by accommodating fast-track programs within the guidelines. See Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Ac t”), Pub. L. No. 108–21, 117 Stat. 650 (2003). Consequently, § 5K3.1 arguably reflec ts a congressional intent that defendants who plead pursuant to fast-track agreements receive leniency not shown to defendants who enter open pleas. It is therefore at least arguable that, notwithstanding the limited penological purposes provide d for under § 3553(a)(2), § 5K3.1 implicitly permits a Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 1314 district court to impose higher sentences on de fendants who enter open pleas in order to provide a “compelling reason” for them to ente r fast-track agreements. That said, we need not resolve any tension between § 35 53(a)(2) and § 5K3.1 because § 5K3.1 only applies to agreements made under fast-track resolution pr ograms, and no such program was at play here. The district court’s deci sion to select a higher sentence for Ms. Cozad was an expression of its own policy in favor of plea agreements, not congressional intent.

That Ms. Cozad’s sentence was the result of the district court’s own custom is significant. A court’s role in plea bargaining, at least in the federal system, is generally limited to accepting or rejecting an agreemen t after the parties have reached one. See Fed. R. Crim. P. 11(c) (“The court must not participate in [plea agreement] discussions.”). This is not to say that the di strict court violated Rule 11 in this case or even that Rule 11 itself prohibits courts from imposing harsher sentences on defendants who plead guilty without a plea agreement. See United States v. Carver , 160 F.3d 1266, 1269 (10th Cir. 1998) (“While it is true th at [now Rule 11(c)] prevents a judge from shaping the terms of a plea bargain or pressu ring a criminal defendant to settle his case, these stringent prohibitions . . . do not appl y once “the parties ha[ve] concluded their agreement, and the prosecutor ha[s ] laid it out in open court . . . .”). It is only to say that, in the federal system, courts are intended to have a limited role with respect to the pleabargaining process. And it is the role of the government, not the court, to provide a defendant with “compelling reasons” fo r entering into a plea agreement. Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 1415 IV Conclusion We hold that, under 18 U.S.C. § 3553(a ), it was procedurally unreasonable for the district court to impose a harsher sentence on Ms. Cozad based on her decision to enter an open plea. Because the di strict court abused its discre tion, we vacate Ms. Cozad’s sentence and remand for resentencing. Appellate Case: 20-3233 Document: 010110626415 Date Filed: 01/03/2022 Page: 15