Opinion
Civil Action No. 5:05cv90.
September 13, 2005
REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
Petitioner Daniel R. Siler, a prisoner confined in the federal prison system, brings, pursuant to 28 U.S.C. § 2255, this motion to vacate, set aside, or correct his sentence. The petition was referred for findings of fact, conclusions of law, and recommendations for disposition of the case.
Procedural Background
On October 10, 2003, Petitioner pled guilty to conspiracy to possess with intent to deliver more than fifty kilograms of marijuana. On January 23, 2004, the Court accepted the Plea Agreement entered into by the parties.
The Plea Agreement provided that Petitioner would enter a plea of guilty to Count One of the superseding indictment, and that in exchange, the Government would dismiss the remaining counts of the superseding indictment against Petitioner. The Plea Agreement provided as follows with regard to the calculation of Petitioner's sentence pursuant to the United States Sentencing Guidelines:
a. Petitioner's base offense level would be based on relevant conduct of 209 pounds or 95 kilograms of marijuana pursuant to USSG § 2D1.1. The resulting base offense level would be 24.
b. Petitioner agreed that a 2 level increase in his base offense level would be made based on his abuse of a position of trust as an attorney pursuant to USSG § 3B1.3.Plea Agreement, para. 8(a)-(b). The Plea Agreement specified that Petitioner's sentence would be imposed in accordance with the United States Sentencing Guidelines. Plea Agreement, para. 2.
After Petitioner's guilty plea, the probation office prepared a presentence investigation report, including the following calculation of the appropriate sentence under the Guidelines: 2D1.1 3B1.3 3B1.1
1. Base offense level: USSG § (a)(3), based on total relevant conduct including 95 kilograms of marijuana: 24 2. Adjustment for abuse of position of trust: USSG § : +2 3. Adjustment for leadership role in offense USSG § (c): +2 Total Offense Level: 28 Response at 2; Motion to Vacate at 6. The presentence report did not give Petitioner an adjustment for acceptance of responsibility. See Plea Agreement at 4. Petitioner's criminal history category was I ( May 7, 2004, Hearing Transcript at 12), and his resulting Guideline range was 78-97 months' imprisonment. Response at 3; Motion to Vacate at 7.Both Petitioner and the Government filed objections to the presentence report. May 7, 2004, Hearing Transcript at 4. Petitioner objected to the report's two-level adjustment for his leadership role and to the report's failure to give Petitioner a three-level decrease for acceptance of responsibility. The Government objected to the report's failure to give Petitioner a three-level increase for being a manager of a criminal organization and the report's failure to give Petitioner a two-level increase for obstruction of justice during the investigation and prosecution of the case.
The parties met and reached an agreement regarding the various objections to the presentence report. May 7, 2004, Hearing Transcript at 4-5. The May 7, 2004, hearing transcript details the agreement. Counsel for the Government stated that it was his understanding that the Government would withdraw its objections to the report and that Petitioner would withdraw his objections to the report and his request for a downward departure. May 7, 2004, Hearing Transcript at 4.
Then Petitioner was allowed to address the Court ( May 7, 2004, Hearing Transcript at 5-10), after which the Court announced that it would grant Petitioner a three-level decrease for acceptance of responsibility ( May 7, 2004, Hearing Transcript at 10). The Court then asked Petitioner's attorneys if they had anything to add. May 7, 2004, Hearing Transcript at 10.
The Court then dictated in the record that the Guideline range on the offense level 25, with a criminal history category I, is 57 to 71 months. May 7, 2004, Hearing Transcript at 10. Both parties verbally agreed that was correct. May 7, 2004, Hearing Transcript at 10. The Court then formally adopted the findings of the probation department finding an offense level of 25, criminal history category I, and Guideline sentencing range of 57 to 71 months' imprisonment. May 7, 2004, Hearing Transcript at 10. Petitioner did not object to the Court's calculation. May 7, 2004, Hearing Transcript at 10-15. Petitioner was sentenced to 71 months' imprisonment followed by three years' supervised release and did not appeal the conviction or sentence. May 7, 2004, Hearing Transcript at 13.
Petitioner's Claims
On May 6, 2005, Petitioner filed the present petition asserting that the Court mistakenly believed the Guidelines calculation was based on a total offense level of 25, but that it should have been 23, and that the Court imposed a sentence outside the specific Guidelines sentencing range. Petitioner asserts that the Court's upward departure sentence violates the Sixth Amendment, under United States v. Booker, 125 S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct. 2531 (2004). Petitioner asserts that the revised presentence report failed to properly compute the Guidelines sentence as ordered.Petitioner further asserts that the Court mistakenly believed an agreement was reached between the State of Texas and Petitioner that any sentence imposed by either the State of Texas or the federal court would run concurrently with each other. Petitioner contends that he and the Court relied on representations made by the Bowie County District Attorney's Office and the United States Attorney's Office, but that the Texas State District Court later ordered the state sentences to run consecutively to the federal sentence. Petitioner asks the Court to correct the sentence by recalculating the total offense level to be 23, with a Guidelines sentencing range of 46 to 57 months, and to order the new federal sentence to run concurrently with the State of Texas sentences.
Respondent's Response
Respondent contends that no agreement existed — as evidenced by the Plea Agreement and the May 7, 2004, hearing transcript — as to what the total offense level would be, and that implicitly, all USSG calculations other than those covered in the Plea Agreement were left for the Court's determination. Response at 2. Respondent notes that the Plea Agreement provided that Petitioner's sentence would be imposed in accordance with the United States Sentencing Guidelines. Response at 2 (citing Plea Agreement, para. 2).
Respondent urges the Court to enforce the waiver contained in the Plea Agreement. Respondent asserts that Petitioner waived his right to collateral review of the issues he now raises. Response at 4 (citing Plea Agreement, para. 11). Respondent asserts that the terms of the agreement, including the waiver, were explained to Petitioner, who was an attorney, and that he acknowledged the understanding and acceptance of those terms. Respondent asserts that Petitioner does not assert that his waiver of appeal was uninformed or involuntary.
Respondent asserts that Petitioner's claims do not fall within the category of challenging mathematical errors in calculating his guideline range and do not fall within the category of challenging an upward departure from the correct range. Respondent points out that Petitioner did not, at the time of sentencing, argue that the district court erred in its mathematical calculations. Respondent asserts that Petitioner does not argue that the Court erred in its math, but that Petitioner argues that the Court should not have increased his offense level by two pursuant to USSG § 3B1.1(c). Respondent also points out that Petitioner's state sentence was imposed after the federal sentence.
Standards and Discussion
The first paragraph of 28 U.S.C. § 2255 sets out the claims which are cognizable under the statute. These are: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum allowed by law; or (4) the sentence is otherwise subject to collateral attack.
The general rule is that Section 2255 does not reach errors not of a constitutional or jurisdictional magnitude that could have been raised on direct appeal. United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995). Section 2255 provides recourse only for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Acklen, 47 F.3d 739, 741 (5th Cir. 1995).
However, it should be noted that Section 2255 is not a substitute for an appeal. The Fifth Circuit has held that because a challenge under Section 2255 may not do service for an appeal, a movant may not raise constitutional or jurisdictional issues for the first time on collateral review without establishing both cause for his procedural default and actual prejudice resulting from the error. Id. at 741-42.
Waiver
Waivers in plea agreements, including a waiver using the language now challenged by Petitioner, have been the basis of dismissals of appeals, including those raising Booker-type errors and Blakely-type errors. United States v. Bond, 414 F.3d 542, 545-46 (5th Cir. 2005) (involving substantively similar waiver language as in the present case). The appeal waiver provision was part of the written plea agreement signed by Petitioner and his attorney. Plea Agreement at 4. The terms of the agreement, including the waiver, were explained to Petitioner, who was an attorney. Petitioner acknowledged the understanding and acceptance of those terms and acknowledged therein that he knowingly and voluntarily executed the waiver in exchange for the concessions made by the Government in the Plea Agreement and with the full understanding that the district court had not yet determined his sentence. Plea Agreement, para. 11. He further acknowledged that the plea was entered knowingly, freely, voluntarily, and with the advice of his lawyer. Plea Agreement, para. 14. Petitioner does not assert that his waiver of appeal was uninformed or involuntary.
In the Plea Agreement, Petitioner waived the right to raise the following claims that he now asserts: the Court used the wrong total offense level; the Court mistakenly believed an agreement was reached between the State of Texas and Petitioner that any sentence imposed by either the State of Texas or the federal court would run concurrently with each other; and Petitioner and the Court relied on representations made by the Bowie County District Attorney's Office and the United States Attorney's Office. Furthermore, Petitioner's state sentence was imposed after the federal sentence.
Although Petitioner states that the Court imposed a sentence outside the specific Guidelines sentencing range and that the revised presentence report failed to properly compute the Guidelines sentence as ordered, Petitioner's contentions actually do not address either an upward departure from the Guidelines or improper computation. Petitioner did not, at the time of sentencing, argue that the district court erred in its mathematical calculations. Petitioner actually does not argue that the Court erred in its math, but argues that the Court should not have increased his offense level by two pursuant to USSG § 3B1.1(c).
Petitioner's assertion that the sentence was outside the specific Guidelines range is based on his assumption that the Guidelines range should not have been determined for a total offense level of 25 but for a total offense level of 23. Petitioner's contention that the presentence report failed to properly compute the Guidelines as ordered fails, as well. The Plea Agreement stipulates the base offense level of 24 (para. 8(a)) and a two point increase for abuse of a position of trust (para. 8(b)). The Plea Agreement is silent as to total offense level. The presentence report calculated the total offense level as 28. Both parties agreed to withdraw their objections to the presentence report, as recorded at the May 7, 2004, hearing. May 7, 2004, Hearing Transcript at 4. At the hearing, the Court gave Petitioner a three level reduction for acceptance of responsibility, to arrive at a total offense level of 25. May 7, 2004, Hearing Transcript at 10. Petitioner's assertion that this was a miscalculation lacks merit. Petitioner's claims do not fall within the category of challenging mathematical errors in calculating his guideline range and do not fall within the category of challenging an upward departure from the correct range.
Booker Claim
Blakely and Booker were not decided until after Petitioner's direct appeal had been concluded. Thus, claims based on Blakely and Booker could not have been raised on direct appeal. However, this fact raises the question of whether these cases are retroactively applicable to his petition.
In Blakely v. Washington, 124 S. Ct. 2531 (2004), the Supreme Court invalidated an upward departure under the sentencing guidelines of the State of Washington, which departure was imposed on the basis of facts found by the court at sentencing. Because these facts were neither admitted by the defendant nor found by a jury, the Supreme Court held that the sentence violated the Sixth Amendment.
In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court extended the reasoning of Blakely to the United States Sentencing Guidelines. In so doing, the Court stated that its holding would apply to "all cases on direct review." Booker, 125 S. Ct. at 770.
Petitioner was sentenced on May 7, 2004, and he did not appeal. However, Booker was decided on January 12, 2005. Petitioner's direct appeal had terminated at the time that Booker was decided.
In In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005), a case involving a successive Section 2255 petition, the Fifth Circuit observed that the Supreme Court has "strongly suggested" that Blakely, and Booker do not apply retroactively on collateral review. The Fifth Circuit stated that "the Supreme Court has not made Booker retroactive to any cases on collateral review." Elwood, 408 F.3d 211. Every other federal appellate court which has considered the question has determined that Booker does not apply retroactively to cases whose direct appeal was over and who are proceeding on collateral review. See Varela v. United States, 400 F.3d 864, 866 (11th Cir. 2005); Humphress v. United States, 398 F.3d 855, 863 (6th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005); Green v. United States, 397 F.3d 101, 103 (2nd Cir. 2005); United States v. Leonard, 120 Fed. Appx. 759 (10th Cir. 2005) (not selected for publication in the Federal Reporter). This is because the holding is a new constitutional rule of criminal procedure, not retroactively applicable to cases that became final before the decision was announced. See Teague v. Lane, 489 U.S. 288 (1989).
This conclusion is buttressed by Schriro v. Summerlin, 124 S. Ct. 2526 (2004), decided the same day as Blakely. Schriro dealt with the retroactivity of Ring v. Arizona, 536 U.S. 584 (2002) a case which held that because Arizona law authorized the death penalty only if an aggravating factor was present, this factor must be found by a jury rather than by the judge. The Supreme Court stated that substantive rules generally apply retroactively, but that new procedural rules do not, unless they are "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding. Schriro, 124 S. Ct. at 2522-23. The Court specifically said that Ring v. Arizona did not apply retroactively to cases on collateral review. Schriro, 124 S. Ct. at 2526.
The new rule announced in Booker is procedural rather than substantive, because it does not alter the range of conduct or the class of persons subject to criminal prosecution, but simply changes the manner in which sentences are determined by in effect making the U.S. Sentencing Guidelines advisory rather than mandatory. See Booker, 125 S. Ct. at 742. This change does not amount to a "watershed rule of criminal procedure" and thus is not applied retroactively to cases which had become final at the time that the rule was announced. The Supreme Court itself stated that the holding was to be applied "to all cases on direct review." Booker, 125 S. Ct. at 770. Petitioner's case had already become final at the time that the rule in Booker was announced, and so that rule is not retroactively applicable to him.
State Court Sentence
An affidavit from Bobby Lockhart, District Attorney of Bowie County, Texas, explains that shortly before the sentencing of Petitioner in federal court, the Bowie County District Attorney's office agreed to a resolution of Petitioner's state court criminal matters and agreed with Petitioner that in exchange for a sentence recommendation of ten years, Petitioner would enter a plea of either no contest or guilty to money laundering and to engaging in organized criminal activity, and that both those sentences would be served concurrently with each other and with any sentence imposed in Petitioner's federal case. Lockhart Affidavit at 1-2. The affidavit explains that on May 11, 2004, Petitioner appeared in Bowie County District Court to present the agreement to the court, but that he refused to enter either a plea of no contest or guilty as he had agreed to do. Lockhart Affidavit at 2. Petitioner did not abide by the agreement and present the agreed plea to the state court. See Lockhart Affidavit at 2. The affidavit explains that instead, Petitioner attempted to renegotiate the plea agreement with the State. Lockhart Affidavit at 2. Mr. Lockhart states that the District Attorney's office was ready and willing to go forward with the plea agreement, but was unwilling to renegotiate, and therefore asked the court to set the matter for trial. Lockhart Affidavit at 2. The court set the cases, and Petitioner ultimately entered an open plea of no contest, without the benefit of a plea agreement or sentence recommendation from the District Attorney's office. Lockhart Affidavit at 2. Petitioner was sentenced to seven years' and five years' imprisonment, to be served consecutively to his federal sentence. Lockhart Affidavit at 2. Petitioner's assertion that his state sentences should be ordered to run concurrently with his federal sentence therefore lacks merit. Petitioner's claims of error lack merit; thus, his Section 2255 motion should be denied.
Conclusion
Petitioner has failed to show that his sentence was imposed in violation of the Constitution or laws of the United States, that his sentence was in excess of the maximum authorized by law, or that his sentence is otherwise subject to collateral attack; consequently, Petitioner's Section 2255 motion should be denied.
Recommendation
It is accordingly recommended that Respondent's motion to dismiss (dkt. #5) be granted and the petition be dismissed with prejudice.Objections
Within ten days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).