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holding thatApprendi was satisfied because indictment alleged defendant knowingly and intentionally possessed with intent to distribute" a quantity of greater than fifty grams of cocaine base ("crack")"
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CRIMINAL ACTION NO. 00-0259 SECTION "R" (2)
July 19, 2002
ORDER AND REASONS
Before the Court is petitioner Jeffery L. Anderson's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies defendant's motion.
I. Background
On October 25, 2000, defendant Jeffery L. Anderson, pursuant to a written plea agreement, pleaded guilty to one count of knowingly and intentionally possessing with the intent to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). As part of his plea agreement, Anderson agreed not to appeal or contest his sentence in any post-conviction proceeding, including a proceeding under 28 U.S.C. § 2255, except under limited circumstances. Rec. Doc. 13, Plea Agreement. Specifically, Anderson reserved the right to challenge (1) any punishment imposed in excess of the statutory maximum, and (2) any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court. Id.
The plea agreement was submitted in the form of a Bryan letter. See Bryan v. United States, 492 F.2d 775 (5th Cir. 1974).
At sentencing, the Court found that defendant's base offense level was 30, which it increased by two points for possession of a firearm and reduced by three points for acceptance of responsibility. The result was a total offense level of 29. Anderson's criminal history category was III, resulting in a sentencing range of 108 to 135 months. The offense involved a mandatory minimum sentence of ten years. This increased Anderson's minimum sentence to 120 months, while the upper end of the guideline range remained at 135 months. On April 13, 2001, the Court entered judgment against Anderson, sentencing defendant to a term of 128 months imprisonment and a term of supervised release of five years.
Anderson did not file a direct appeal of his sentence or conviction. On April 10, 2002, Anderson filed a Motion to Vacate, Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255. He complains that he was deprived of effective assistance of counsel when he pleaded guilty. Anderson alleges that his counsel was ineffective during both the plea stage and at sentencing because he 1) failed to request a lab report from expert chemists to determine if the substance he possessed was actually crack, 2) failed to advise defendant that, absent such a lab report, defendant should admit to the lesser offense of possession of freebase, and 3) failed to investigate the government's reasoning for using a weapon as an enhancement. Defendant also asserts on Apprendi grounds that the indictment failed to specify the quantity of drugs involved and the appropriate penalties.
II. Discussion
A. Waiver
As noted, petitioner waived his right to challenge his sentence in a post-conviction proceeding if his sentence was below the statutory maximum and within the statutory guideline range. Petitioner challenges both the plea agreement that produced his waiver and his counsel's performance at sentencing on the grounds of ineffective assistance of counsel. This Court agrees with the analysis in United States v. Adams, 2002 WL 826770 (E.D. La. 2002) and United States v. Flunker, 2000 WL 823469 (E.D. La. 2000), which held that when a defendant waives his right to collaterally attack his sentence in his plea agreement, a court may consider claims of ineffectiveness of counsel with respect to the plea agreement itself, but may not consider such claims regarding the attorney's performance at sentencing. See discussion, infra.
The Fifth Circuit has held that a waiver of post-conviction relief such as 28 U.S.C. § 2255 is valid to bar such relief if the waiver is informed and voluntary. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The defendant must know that he had "a right to appeal his sentence and that he was giving up that right." United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). It is the responsibility of the district court "to insure that the defendant fully understands [his] right to appeal and the consequences of waiving that right." United States v. Gonzalez, 259 F.3d 355, 357 (5th Cir. 2001) (quoting United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992)).
Here, the evidence indicates that Anderson's waiver was both knowing and voluntary. His signed plea agreement contained an express waiver of his right to appeal or seek relief under Section 2255 if his sentence was within the applicable sentencing guideline range and below the statutory maximum. See Rec. Doc. 13. During the rearraignment, the Court summarized the indictment, reviewed the provisions of the plea agreement, and noted the mandatory minimums and maximums under the statutes. Transcript of Rear. at 4. The Court also advised defendant that the government would have to prove the drug quantity charged beyond a reasonable doubt if he chose to go to trial. Id. at 8. Anderson indicated that he understood the ramifications of pleading guilty. The Court asked the lawyers to review the terms of the plea agreement, and Anderson confirmed that he understood the terms of the plea agreement. The Court specifically questioned Anderson about his waiver of the right to appeal, and he confirmed that he knowingly waived his right to challenge his sentence. The Court determined on the record that he understood the nature of the rights that he was forfeiting. Id. at 6. See Frank v. United States, 501 F.2d 173, 175 (5th Cir. 1973). Thus, Anderson affirmed that he fully understood and voluntarily approved of his plea. "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629 (1977). Indeed, Anderson does not even assert that he did not understand the appeal waiver.
The transcript of the rearraignment states in pertinent part:
THE COURT: COUNT ONE OF THE INDICTMENT CHARGES THAT ON OR ABOUT AUGUST 11TH, 2000 YOU KNOWINGLY AND INTENTIONALLY POSSESSED WITH THE INTENT TO DISTRIBUTE A QUANTITY OF GREATER THAN 50 GRAMS OF COCAINE BASE CRACK, A SCHEDULE II NARCOTIC DRUG CONTROLLED SUBSTANCE, IN VIOLATION OF 21 U.S.C. SECTION 842(a)(1).
THE MAXIMUM POSSIBLE SENTENCE THAT COULD BE IMPOSED ON YOU IN THE EVENT OF CONVICTION ON THIS CHARGE, EITHER ON A PLEA OF GUILTY OR AFTER A TRIAL AT WHICH YOU'RE FOUND GUILTY, IS A MANDATORY MINIMUM SENTENCE OF TEN YEARS AND A MAXIMUM OF LIFE IMPRISONMENT AND A FINE OF $4 MILLION. THE MAXIMUM SENTENCE WOULD ALSO PROVIDE FOR A TERM OF SUPERVISED RELEASE FOR A PERIOD OF FIVE YEARS UNDER 21 U.S.C. SECTION 841(b).
The transcript states in pertinent part:
THE COURT: DO YOU UNDERSTAND THAT IF YOU PLED NOT GUILTY YOU WOULD BE ENTITLED TO A SPEEDY AND PUBLIC TRIAL BY A JURY OF 12 OR A TRIAL BY THE JUDGE IF YOU WAIVED A JURY TRIAL?
THE DEFENDANT: YES, MA'AM.
THE COURT: DO YOU UNDERSTAND THAT BEFORE YOU CAN BE FOUND GUILTY OF COUNT 1, THE GOVERNMENT WOULD BE REQUIRED TO PROVE BY COMPETENT EVIDENCE AND BEYOND A REASONABLE DOUBT, FIRST, THAT YOU KNOWINGLY POSSESSED A CONTROLLED SUBSTANCE; SECOND, THAT THE SUBSTANCE WAS, IN FACT, MORE THAN 50 GRAMS OF COCAINE BASE; AND THIRD, THAT YOU POSSESSED THE SUBSTANCE WITH THE INTENT TO DISTRIBUTE IT.
DO YOU UNDERSTAND THAT'S WHAT THE GOVERNMENT WOULD HAVE HAD TO HAVE PROVED, HAD YOU GONE TO TRIAL?
THE DEFENDANT: YES, MA'AM.
The transcript states in pertinent part:
THE COURT: DO YOU UNDERSTAND THAT UNDER YOUR PLEA AGREEMENT WITH THE GOVERNMENT, YOU HAVE EXPRESSLY AGREED TO WAIVE YOUR RIGHT TO APPEAL ANY SENTENCE I IMPOSE, INCLUDING IN ANY POST CONVICTION PROCEEDING?
THE DEFENDANT: YES, MA'AM.
THE COURT: DO YOU UNDERSTAND THAT THE ONLY EXCEPTIONS TO THAT WAIVER OF YOUR RIGHT TO APPEAL ARE THAT YOU HAVE RESERVED THE RIGHT TO APPEAL ANY SENTENCE THAT'S IMPOSED IN EXCESS OF THE STATUTORY MAXIMUM, AND ANY PUNISHMENT THAT AMOUNTS TO AN UPWARD DEPARTURE FROM THE GUIDELINE RANGE DEEMED APPLICABLE BY THE COURT; DO YOU UNDERSTAND THOSE ARE THE ONLY TWO CASES YOU HAVE RESERVED THE RIGHT TO APPEAL?
THE DEFENDANT: YES, MA'AM.
B. Ineffective Assistance in Plea Negotiations
Anderson nevertheless asserts that his guilty plea was the product of ineffective assistance of counsel. In Wilkes, the Fifth Circuit acknowledged that a waiver of Section 2255 relief may not always apply to bar a collateral attack based upon ineffective assistance of counsel. Wilkes, 20 F.3d at 653 (citing United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979, 113 S.Ct. 2980 (1993)). See also United States v. Walker, 68 F.3d 931, 934, (5th Cir.), cert. denied, 516 U.S. 1165, 116 S.Ct. 1056 (1996) ("[I]neffective assistance of counsel, if shown, is sufficient to establish the cause and prejudice necessary to overcome a procedural default."). Moreover, in United States v. Henderson, 72 F.3d 463 (5th Cir. 1995), the Fifth Circuit permitted a criminal defendant to appeal, despite a waiver in his plea agreement, when he asserted that the appeal waiver was tainted by ineffective assistance of counsel. Accordingly, the Court will consider whether Anderson's guilty plea was invalid because of ineffective assistance of counsel.
To prevail on an ineffectiveness claim, petitioner must demonstrate (1) that his counsel's performance was deficient; and (2) that his counsel's deficient performance prejudiced the outcome of his trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Petitioner must satisfy both prongs of the Strickland test in order to succeed. See Id. at 687, 104 S.Ct. at 2064. To establish a deficient performance, petitioner must show that his counsel's representation "fell below an objective standard of reasonableness." Jones v. Jones, 163 F.3d 285, 301 (5th Cir. 1998) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). The Court makes every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time of trial. See id. (quoting Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)). See also Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844 (1993) (on ineffective assistance claim, courts judge counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066)).
The second prong of Strickland requires petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. If Anderson fails to establish either deficient performance or actual prejudice, the Court may dispose of the claim without addressing the other prong. Id. at 697, 104 S.Ct. at 2069.
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985), the Supreme Court applied the Strickland test to cases involving guilty pleas. In the guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pleaded guilty but for the error. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). Under the first prong of the Strickland/Hill test, if a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, "the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56, 106 S.Ct. at 369 (internal quotes omitted). To meet the prejudice prong of the test, a petitioner must establish that but for his counsel's alleged erroneous advice, he would not have pleaded guilty but would have insisted on going to trial. Id. at 59, 106 S.Ct. at 370; see also Armstead, 37 F.3d at 206 (citing Carter v. Collins, 918 F.2d 1198, 1200 (5th Cir. 1990)).
Here, Anderson fails to meet his burden of proof under the first prong of the Strickland/Hill analysis. He first alleges that counsel failed to request a lab report from expert chemists to determine if the substance in issue was actually crack. Defendant asserts that counsel failed to advise him that, absent such a lab report, defendant should admit to the lesser offense of possession of freebase.
The Court rejects defendant's argument that his counsel's advice was deficient. Anderson points to no evidence that indicates that the substances obtained from him were not crack. The field tests established that the substances contained cocaine. In the Factual Basis, the government asserts that "a chemist from the DEA would show that the amount of `crack' found in the defendant's possession . . . was over 50 grams in net weight." See Rec. Doc. 14, Factual Basis. Moreover, "it is not necessary for the government to perform a chemical analysis to prove that the substance is crack, as opposed to another form of cocaine base." United States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999) (citing United States v. Dent, 149 F.3d 180, 190 (3d Cir. 1998) and United States v. Roman, 121 F.3d 136, 141 (3d Cir. 1997)). Accordingly, there is ample evidence that the material obtained from Anderson was crack.
The Court also finds Anderson's claim that his attorney erred in failing to investigate whether the weapon could be used as evidence unpersuasive. The government may search a car without a warrant if the car is readily mobile and probable cause exists to believe that the car contains contraband. California v. Carney, 471 U.S. 386 (1985). Here, the car was readily mobile and Anderson, upon admitting that he had more cocaine in the car, provided the government with probable cause to search it. Further, he gave them the keys to the car.
Furthermore, because the indictment charges that Anderson did "knowingly and intentionally possess with the intent to distribute a quantity of greater than fifty (50) grams of cocaine base ("crack")" (See Rec. Doc. 1., Indictment), the Court rejects Anderson's argument that his counsel's performance was deficient for failing to inform him that the indictment failed to charge him with a crime. Courts have held that the quantity of the substance charged must be included in the indictment. United States v. Doggett, 230 F.3d 160, 164-165 (5th Cir. 2000); see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Fifth Circuit, however, has held that a specific amount is not required; rather, "Apprendi is satisfied when an indictment alleges a range of drug quantity rather than a specific amount." United States v. Moreci, 283 F.3d 293, 297 (5th Cir. 2002) (citing United States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001)). The indictment in the instant case did exactly that. Therefore, the Court finds that defense counsel's advice to plead guilty was within the range of competent advice and denies Anderson's claim of ineffective assistance of counsel with respect to his guilty plea.
Although Anderson is correct to note that the indictment lacks a statement of the penalty involved, such a statement is not required by Fed.R.Crim.Pro., Rule 7(C). See United States v. Hernandez-Gomez, 2001 WL 66255, *1 (9th Cir. 2001); James v. United States, 2002 WL 1023146, *20 (S.D.N.Y. 2002).
C. Ineffective Assistance of Counsel at Sentencing
The Court finds that petitioner's challenge to the effectiveness of his counsel at sentencing is just an effort to end-run the effect of his waiver of Section 2255 relief. Although the Fifth Circuit in Wilkes determined that a waiver of Section 2255 relief in a plea agreement does not always apply to bar collateral attacks based upon ineffective assistance of counsel, in this case the waiver is effective. Wilkes, 20 F.3d at 653 (citations omitted). In fact, the Wilkes court enforced the waiver once the court established that the waiver was knowing and voluntary. Id. ("here the appropriateness of the waiver is beyond question"). As correctly pointed out in United States v. Flunker, challenges to counsel's effectiveness at sentencing are not cognizable on collateral attack when a petitioner enters a plea agreement in which he knowingly and voluntarily waived his right to challenge the sentence by way of Section 2255 relief, and his guilty plea is not tainted by ineffective assistance of counsel. Flunker, 2000 WL 823469 at *5 ("when a defendant waives his right to collaterally attack his sentence, a court may consider claims of ineffectiveness with respect to the plea agreement itself, but may not consider claims of ineffectiveness with respect to his attorney's performance at sentencing."); see also Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000) (waiver of Section 2255 relief as to sentence precludes collateral challenge to sentence when petitioner does not challenge the voluntariness of negotiation of waiver or counsel's effectiveness in negotiating the waiver); United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (rejecting petitioner's claim that knowing and voluntary waiver should not bar consideration of appeal because counsel was ineffective at sentencing). Here, the Court determined that petitioner knowingly and voluntarily waived his right to post-conviction relief and that his guilty plea was not invalid by reason of ineffective assistance of counsel. The Court therefore refuses to consider the merits of Anderson's challenges to his counsel's performance at sentencing.
Even if the Court considered this claim, there can be no ineffective assistance of counsel when counsel failed to assert a meritless Apprendi challenge as suggested by petitioner.
III. Conclusion
For the foregoing reasons, the Court DENIES defendant's Section 2255 motion to vacate, set aside, or correct the sentence.