Jose A. Astacio Burgess v. United States

Petitioner entered a plea agreement with the Government whereby, in exchange for his guilty plea to certain offenses, the Government agreed to “withdraw and dismiss, with prejudice, [the remaining offenses] after such time as the military judge announces the sentence and before the courtmartial adjourns.” At the trial, the military judge announced the sentence and the Government trial counsel, who functions as the prosecutor, “move[d], pursuant to the plea agreement, to withdraw and dismiss, with prejudice [the remaining offenses].” On appeal, the United States Air Force Court of Criminal Appeals (AFCCA) specified an issue as to whether the withdrawn offenses were “dismissed with prejudice, vice dismissed with prejudice conditioned upon the completion of appellate review.” Pet. App. 4a. The Government argued not only that prejudice did not attach until final appellate review was complete, but also that success by the Petitioner on appeal “cancelled [the] original plea agreement” and that the case should be returned to the trial level to allow the Government to retry Petitioner. Rather than address the issue it specified, the AFCCA side-stepped it and held, without analysis, that the “issue [was] not ripe and decline[d] to address it.” Pet. App. 4a. The question presented is: Did the lower court err in applying ripeness to decline to resolve whether prejudice attached to the dismissal of three of Petitioner’s charges immediately or only after completion of appellate review?