Opinion
CRIMINAL ACTION NO. 00-59 SECTION "R" (3)
October 5, 2001
ORDER AND REASONS
Before the Court is petitioner Huston Freddie Boothe'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 March 29, 2000, defendant Huston Freddie Boothe, Jr., pursuant to a written plea agreement pled guilty to bank theft in an amount exceeding $1,000, in violation of 18 U.S.C. 2113(b). As part of his plea agreement, he waived his right to "contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255." (Rec. Doc. 10). Boothe reserved the right to appeal the following: 1) any punishment imposed in excess of the statutory maximum, and b) any punishment to the extent that it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court. Id. Boothe further stipulated to bank theft in the amount of $10,000. 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).
In the Presentencing Report (PSR) , the Probation Office determined that Boothe was responsible for bank theft in the amount of $127,404.65. Based on that amount, the probation officer determined that Boothe's base offense level was 4 and the specific offense characteristic was 9. The probation officer recommended a 2-point increase for more than minimal planning, and recommended a 2-point decrease for acceptance of responsibility. The result was a total offense level of 13. Boothe's criminal history category was I, which at an offense level 13, resulted in a guideline sentencing range of twelve to eighteen months imprisonment, two to three years supervised release, a fine between $3,000 and $30,000, $127,404.65 restitution and $100 special assessment. The statutory provisions are ten years imprisonment, one to five years probation, no more than three years supervised release, a fine of $250,000, $127,414.54 restitution and $100 special assessment.
During the sentencing hearing on June 21, 2000, Boothe personally objected to the PSR. His counsel did not file an objection to the PSR and did not object during the sentencing hearing. While Boothe did not object to the validity of the factual basis in the PSR, he asserted that the Court should limit its factual determination of his specific offense characteristic to the $10,000 he stipulated to in his plea agreement. The Court overruled Boothe's objection and sentenced him to sixteen months of imprisonment, $127,414.65 restitution, three years of supervised release, and $100 special assessment.
Boothe did not file a direct appeal of his sentence of conviction. On July 1, 2001, Boothe filed a Motion to Vacate, Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255. He asserts an ineffective assistance of counsel claim on the basis that counsel: 1) failed object to certain discrepancies between the stipulations in the plea agreement and the factual basis for the PSR, 2) failed to provide a legal basis when defendant objected during the sentencing hearing, and 3) provided defendant with a copy of the PSR only three days before his sentencing date in contravention of Rule 32 of the Federal Rules of Criminal Procedure. Petitioner also claims that his sentence violates the rule announced by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)
II Discussion
A. Waiver
The government argues that petitioner's motion should be dismissed for lack of jurisdiction based on petitioner's waiver of his right to post-conviction relief when petitioner's sentence is below the statutory maximum and within the statutory guidelines.
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). citing United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992)
Here, the evidence indicates that Boothe's waiver was both knowing and voluntary. His signed plea agreement contained an express waiver of his right to appeal if his sentence was within the sentencing guidelines and below the statutory maximum. (Rec. Doc. 10.) During Boothe's rearraignment, the Court summarized the provisions of the plea agreement, the offense and noted the maximum statutory penalty. Booth indicated that he understood the ramifications of pleading guilty. Further, the Court advised Booth of the terms of the plea agreement and the waiver, and determined that he understood the nature of the constitutional rights that he was forfeiting. See Frank v. United States, 501 F.2d 173, 175 (5th Cir. 1973)
THE COURT: DO I UNDERSTAND THAT THERE IS A PLEA AGREEMENT IN THIS MATTER?
MRS. GONZALEZ: YES, THERE IS, YOUR HONOR.
THE COURT: I ALSO UNDERSTAND THE PLEA AGREEMENT. MR. BOOTHE YOU AGREE TO WAIVE YOUR RIGHT TO APPEAL YOUR SENTENCE INCLUDING SEEKING ANY POST CONVICTION RELIEF EXCEPT THAT YOU RESERVE YOUR RIGHT TO APPEAL ANY PUNISHMENT THE COURT IMPOSES THAT IS IN EXCESS OF THE STATUTORY MAXIMUM FOR THIS OFFENSE OR THAT AMOUNTS TO AN UPWARD DEPARTURE FROM THE GUIDELINE RANGE. DO YOU UNDERSTAND THAT IS THE EXTENT OF YOUR WAIVER?
THE DEFENDANT, MR. BOOTHE: YES, I DO.
THE COURT: DO YOU UNDERSTAND THAT THIS MEANS THAT WHAT YOU ARE WAIVING IS YOUR RIGHT TO APPEAL ANY MISTAKES I MAKE IN CALCULATING THE APPROPRIATE GUIDELINE RANGE?
THE DEFENDANT, MR. BOOTHE: YES.
THE COURT: DO YOU UNDERSTAND IF I ACCEPT YOUR PLEA OF GUILTY, I COULD IMPOSE THE MAXIMUM POSSIBLE SENTENCE THAT I JUST DESCRIBED TO YOU?
THE DEFENDANT, MR. BOOTHE: YES, I DO.
(Rec. Doc. 28, Ex. A, Transcript of Rearr. at 5-6.)
Boothe 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). At no time during the rearraignment hearing did petitioner indicate that he did not understand the consequences of his actions.
B. Ineffective Assistance of Counsel
The Fifth Circuit acknowledged that such a waiver may not always apply to a collateral attack based upon ineffective assistance of counsel. Wilkes, 20 F.3d at 653 (citing to United States v. Abarca, 1985 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, 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."). Furthermore, habeas relief is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Capua, 656 F.2d 1033 (5th Cir. 1981). Petitioner's ineffective assistance of counsel claim is clearly constitutional in nature. See United States v. McMasters, 2001 WL 755402 (E.D. La. 2001) (Fallon, J.); United States v. Teshima-Jiminez, 1999 WL 600326 (E.D. La. 1999) (Duval, J.); United States v. Kiefer, 1998 WL 388592 (E.D. La. 1998) (Fallon, J.). But see United States v. Flunker, 2000 WL 823469 (E.D. La. 2000) (Clement, J.) (finding that petitioner's ineffective assistance of counsel claim was barred by waiver when petitioner challenged the effectiveness of counsel's representation at sentencing)
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 applies a highly deferential standard to the examination of counsel's performance, making 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, or prejudice, 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 Boothe 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.
Here, Boothe fails to meet his burden of proof under either prong of Strickland. In asserting ineffective assistance of counsel, he alleges three supporting facts as evidence: (1) counsel failed to object to the factual basis contained in the presentence investigation report despite discrepancies between it and the factual stipulations in the plea agreement; (2) counsel failed to provide a legal basis to support defendant's own objection during the sentencing hearing; and (3) counsel furnished him with a copy of the PSR only three days prior to sentencing.
The Fifth Circuit has held that "[a] district court's calculation under or application of the sentencing guidelines standing alone is not the type of error cognizable under section 2255." Walker, 68 F.3d at 934. Therefore, petitioner must demonstrate that counsel's performance was deficient, leading to prejudice, in order for his claim to rise to the level of constitutional issue. Petitioner has made no such showing.
Petitioner argues that his counsel should have objected to the PSR because the Probation Office based its calculation of prisoner's specific offense characteristics on the total amount of money petitioner stole, rather than limiting the relevant conduct to the $10,000 that petitioner stipulated to in his plea agreement. Boothe does not challenge the factual accuracy of the information the Court relied on in sentencing petitioner. Boothe points to the language of the plea agreement which states:
Other than restitution to Hibernia National Bank, the remaining restitution amounts described above are not part of defendant's relevant conduct. (Rec. Doc. 10)
While the plea agreement reflects the government's and the defendant's position on the relevant factual basis, the Court was not bound by such factual stipulations in calculating petitioner's sentence. Section 6B1.4 of Sentencing Guidelines clearly states that "the Court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing." USSG § 6B1.4 (Nov. 2000). The notes following § 6B1.4 indicate that courts cannot rely solely on stipulations in ascertaining the factors relevant to determining the factual basis for the sentence. "Rather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information." USSG § 6B1.4, comment.
Further, petitioner pled guilty pursuant to the terms of an 11(e)(1) (B) plea agreement, which specifically states that the court is not bound by any government recommendations or requests concerning sentencing issues. FED. RULE CIV. P. 11. Rule 11(e)(1)(B) states that in exchange for the defendant pleading guilty, the government will:
recommend, or agree not to oppose the defendant's request for a particular sentence or sentencing range, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor is or is not applicable to the case. Any such recommendation or request is not binding on the court. (emphasis added)
Petitioner's plea agreement correctly recognized that the Court was not bound by the parties' agreement as to the appropriate sentence: "The defendant understands that any discussions with defendant's attorney or anyone else regarding sentencing guidelines are merely rough estimate and the Court is not bound by those discussions." (Rec. Doc. 10.)
Therefore, petitioner's counsel had no reasonable basis on which to object to the Court's decision to take additional facts into account in its determination of petitioner's sentence. As such, counsel's performance was not deficient. See United States v. Kiefer, 1998 WL 388592, *3 (E.D. La. 1998) ("Defendant's attorney is not required to make all possible sentencing objections, particularly where those objections may be frivolous or could jeopardize defendant's credit for acceptance of responsibility.")
Having found that counsel's behavior was not deficient, the Court need not address the prejudice prong of Strickland. See Strickland at 697, 104 S.Ct. at 2069. However, the Court notes there is nothing in the record to indicate that petitioner would have received a lesser sentence had counsel objected based on the stipulations in the plea agreement, because that argument lacked merit.
The Court also rejects Boothe's assertion that he was denied effective assistance of counsel when his counsel gave him a copy of the PSR only three days before sentencing. As an initial matter, a review of the record shows that Boothe stated that he received the PSR on June 15, 2000, six full days before the sentencing hearing on June 21, 2000. (Rec. Doc. 28, Transcript of Sent. Hearing, at 2.) Boothe argues that his counsel violated rule 32 of the Federal Rules of Criminal Procedure. The only provision of Rule 32 that the Court finds applicable here is Rule 32 (6) , which states sets forth the time periods during which the probation officer must furnish the defendant and defense counsel with a copy of the PSR.
Even if the defendant's counsel was deficient in not providing the defendant of a copy of the PSR within those prescribed time lines, the defendant has not shown that he was prejudiced by counsel's performance. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. During the Sentencing Hearing, Boothe certified that he had an opportunity to read the PSR. (Rec. Doc. 28, Transcript of Sent. Hearing, at 2.) Boothe had an opportunity to object to the PSR. The Court specifically considered Boothe's spoken objection regarding the difference between the sentencing guidelines contained in the PSR and those discussed with the Assistant United States Attorney. Id. at 3. The Court determined that neither the Assistant United States Attorney nor defendant's counsel promised Boothe a particular sentence in exchange for his guilty plea. Id. at 5.
THE COURT: THE U.S. ATTORNEY'S COMPUTATION OF THE GUIDELINES DOESN'T CONTROL, THE PROBATION OFFICE COMPUTATION OF THE GUIDELINES DOESN'T CONTROL ME AND WE WENT OVER THAT?
THE DEFENDANT, MR. BOOTHE: I UNDERSTAND THAT.
THE COURT: AT YOUR REARRAIGNMENT HEARING, WHERE YOU ACKNOWLEDGED YOU UNDERSTOOD THAT THE SENTENCE WAS GOING TO BE DETERMINED BY ME, ANY ESTIMATES ANYBODY GAVE YOU WERE ESTIMATES, DO YOU REMEMBER THAT?
THE DEFENDANT, MR. BOOTHE: THAT IS TRUE.
THE COURT: WELL, IF THERE IS NO OBJECTION TO THE COMPUTATION OF THE GUIDELINES ON THE BASIS OF SOME GROUND THAT CAN BE POINTED TO ME THAT IT IS IN ERROR OTHER THAN THAT IT IS DIFFERENT FROM WHAT THE U.S. ATTORNEY SAID IT WAS, THEN TO THE EXTENT THAT IS AN OBJECTION, I'LL OVERRULE IT.
The Court fully considered Boothe's objection to the PSR at the sentencing hearing, determined that the plea agreement contained no specific promise as to the sentence, and that defendant understood that the Court was not bound by the U.S. Attorney's estimates of his sentence. It is not probable that had petitioner received the PSR earlier the outcome would have been any different. As such, Boothe fails to show how counsel's technical violation of Rule 32(6) of the Federal Rules of Criminal Procedure prejudiced him under Strickland.
Accordingly, the Court rejects petitioner's claim of ineffective assistance of counsel.
C. Apprendi
Boothe argues that an Apprendi violation occurred in this case, because the Court considered unindicted conduct in calculating petitioner's sentence. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 5. Ct at 2362-63. Here, Boothe's bill of information simply alleges that petitioner committed bank theft in excess of $1,000.
Boothe may be procedurally barred from raising this issue. on two grounds. First, the Fifth Circuit has not held whether Boothe's guilty plea and waiver forecloses an Apprendi challenge on collateral review. See United States v. Longoria, 259 F.3d 363, 365 (5th Cir. July 19, 2001) (per curiam), reh'g en banc granted, United States v. Longoria, 2001 WL 946413 (5th Cir. Aug. 15, 2001) (finding that a guilty plea and a waiver of appeal rights did not bar petitioner from assrting an Apprendi challenge on direct appeal).
Second, since Boothe did not file a direct appeal, his Apprendi claim may have been waived. A § 2255 motion cannot be used as a substitute for a direct appeal. United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2240 (1979). The Supreme Court has found that failure to raise a ground for relief on direct appeal results in a waiver of that ground unless petitioner can show cause and prejudice, or actual innocence. United States v. Frady, 456 U.S. 152, 167, 192 S.Ct. 1584, 1594 (1982); Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611 (1998).
However, even assuming arguendo that Boothe may assert an Apprendi claim, he is not entitled to relief. The Fifth Circuit has found that Apprendi does not apply when the defendant is sentenced within the prescribed statutory maximum. See United States v. Meshack, 225 F.3d 556, 575-77 (5th Cir. 2000) (finding that Apprendi should be applied only to cases in which a sentence exceeds the statutory maximum, not to cases in which a sentence is enhanced within the statutory range based on a finding of drug quantity). See also United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000) (Apprendi is limited to facts that increase the penalty beyond the statutory maximum, aZnd does not invalidate a court's factual finding for the purposes of determining the applicable Sentencing Guideline).
Here, Boothe pled guilty to taking and carrying away an amount of money exceeding $1,000 under 18 U.S.C. § 2113 (b). The statute provides in pertinent part:
Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $1,000 belonging to, or in the care, custody, control, management, possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than ten years, or both . . .
The Court sentenced petitioner to only sixteen months imprisonment and did not impose a fine, a sentence well within the statutory maximum of ten years imprisonment and a fine of $250,000. Therefore, the petitioner's Apprendi claim lacks merit.
III. Conclusion
For the reasons stated, the Court denies defendant's § 2255 motion to vacate, set aside, or correct the sentence.