Opinion
Civil No. 01-0217 JC/LFG, Criminal No. 97-0315 JC
January 2, 2002
MAGISTRATE JUDGES FINDINGS AND RECOMMENDED DISPOSITION
Within ten (10) days after a party is served with a copy of these findings and recommendations, that party may, pursuant to 28 U.S.C. § 636(b)(1), file written objections to such findings and recommendations. A party must file any objections with the Clerk of the U.S. District Court within the ten-day period allowed if that party wants to have appellate review of the findings and recommendations. If no objections are filed, no appellate review will be allowed.
Findings
1. This is a proceeding on a Motion to Vacate, Set Aside or Correct Sentence brought under 28 U.S.C. § 2255 [Doc. 1]. Movant Darryl Anthony Kelly (Kelly) attacks the sentence entered by the United States District Court for the District of New Mexico in United States v. Kelly, No. CR 97-315 JC. The government filed an Answer to Kellys Motion on June 26, 2001 . [Doc. 10].
2. Kelly pled guilty to a one-count information, charging him with possession with intent to distribute five grams or more of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). Judgment was filed on April 21, 1999, and Kelly was sentenced to five years imprisonment. He did not appeal his conviction.
Kelly asserts in his Motion to Vacate that he filed an appeal and even petitioned the Supreme Court for certiorari (Doc. 1, at 2). However, there is no record of Kellys purported appeal other than his appeal of the denial of his suppression motion, and no record at all of any certiorari petition. (Doc. 10, at. 3 n. 3.) Notwithstanding Kellys apparent failure to appeal, the Court will address the merits of Kellys argument.
3. Kelly asserts the following grounds for review: (1) involuntariness of the guilty plea in that the government breached its promise to depart below the sentencing guideline range; (2) ineffective assistance of counsel in that his attorney failed to argue that Kelly was entitled to an additional downward departure during sentencing; (3) prosecutorial misconduct in that the government incorrectly applied the sentencing guidelines; and (4) professional misconduct in that the United States Probation Office incorrectly calculated Kellys criminal history category points, thereby foreclosing any reduction below the statutory minimum sentence, under 18 U.S.C. § 3553(f)(1)-(5), the safety valve exception.
Factual and Procedural History
4. The factual and procedural history of this case are taken from court records, including the pre-sentence report and case file in CR 97-315, the case file in CIV 01-217, the briefing and attachments of the parties, the transcripts of the plea hearings, held on July 16, 1998 and February 16, 1999, and the transcripts of the sentencings held on February 23, 1999 and April 8, 1999.
5. On April 23, 1997, Kelly was arrested on an eastbound Amtrak train from Los Angeles, while it was stopped at the Albuquerque train station. DEA Agents were making a routine check for narcotics and other contraband. Prior to the trains arrival, Agents noticed that Kelly was traveling on a one-way ticket from Los Angeles to Chicago and had purchased the ticket on the day of departure. Special Agent Kevin Small went to Kellys door and asked for permission to speak to him and to search his luggage. Kelly handed Agent Small a bag that contained over 242 grams of crack cocaine.
6. On July 16, 1998, Kelly entered into a plea agreement with the government [Doc. 98 in CR 97-315], in which he pled guilty to the one-count indictment charging him with intent to distribute 50 grams or more of a mixture of substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A), an offense carrying a statutory minimum sentence of ten years.
Kelly was informed in the plea agreement and at the plea hearing that he would receive not less than ten years of confinement and not more than life. During the July 16, 1998 Plea Hearing, Kelly was informed that under the Sentencing Guidelines, he was eligible for a reduction of three offense levels for acceptance of personal responsibility and two offense levels for being a minor participant. His counsel raised the argument that Kelly might be eligible for a further reduction of his sentence if the government believed he was a minimal participant or entitled to the safety valve exception. The Court and counsel agreed that Kelly could raise these arguments at sentencing. (July 16, 1998 Transcript (July 16 Tr) at 7-8.) Kelly agreed that he would not appeal or contest any findings the court made on the sentence with respect to the stipulations that were discussed at the July 16 Plea Hearing. (July 16 Tr. at 9.) Kelly agreed that under the July 16 Plea Agreement, he could be sentenced to ten years of confinement and that he had waived his right to appeal. (July 16 Tr. at 9-10.) Kelly pled guilty. (July 16 Tr. at 9-10.)
7. On February 16, 1999, a second plea hearing was held, in which the government agreed to allow Kelly to plead to an information charging him with violation of 21 U.S.C. § 841(b)(1)(B), which was the lesser included offense in the indictment. (February 16, 1999 Transcript (Feb. 16 Tr.) at 3.) The Court asked whether it should retake Kellys plea and his counsel stated it was unnecessary. The Court then asked Kelly if he understood. Kelly answered that he did understand, and he then pled guilty. (Feb. 16 Tr. at 4.)
The indictment was replaced with an information on February 5, 1999, but the information was inadvertently excluded from the court file. [See Doc. 10.]
The Court began with the sentencing; however, counsel for Kelly moved to continue the sentencing because he wished to explain additional options to Kelly regarding his prior drug history and possible drug rehabilitation in prison. (Feb. 16 Tr. at 7.)
8. On February 23, 1999, the sentencing continued. Kellys attorney argued for an additional reduction under Sentencing Guideline § 5K2.12 based on Kellys contention that he had committed the offense out of coercion or duress. (February 23, 1999 Transcript (Feb. 23 Tr.) at 2-4.) Kellys attorney also raised the possibility that Kelly was entitled to a downward departure under § 5K1.1 for substantial assistance to the government although he admitted that the government already had the information it needed to solve the homicide in question. (Feb. 23 Tr. at 4-6.) The Court continued the sentencing in order to obtain any additional testimony that was pertinent regarding these arguments raised by Kelly. (Feb. 23 Tr. at 8.)
9. On April 8, 1999, Kelly was sentenced to five years of imprisonment. The Court found that Kelly had a criminal history category of 2, establishing a guideline imprisonment range of 927 months. (April 8, 1999 Transcript (April 8 Tr.) at 5.) The Court departed downward based on Sentencing Guideline § 5K2.12, finding that Kellys criminal conduct resulted out of fear for his life. (April 8 Tr. at 5-6.) The Court then reduced Kellys offense level of 29 to 20, with a resulting imprisonment range of 37 to 46 months. (April 8 Tr. at 6.) The government, however, informed the Court that the charge under 21 U.S.C. § 841(b)(1)(B) sets a statutory mandatory minimum of five years, below which the Court could not depart. (April 8 Tr. at 6.) The Probation Officer and Kellys counsel agreed that the five year minimum was mandatory under the statute. (April 8 Tr. at 6.) The Court then departed downward from a level 29 to a level 24, with a range of 57 to 71 months. (April 8 Tr. at 7.) The Court explained that Kelly had waived his right to challenge his sentence or the manner in which it was determined. (April 8 Tr. at 9.)
Although it is not entirely clear from the record, it also appears that the government stated it would not move for a reduction below the statutory minimum level for substantial assistance under 18 U.S.C. § 3553(e). (April 8 Tr. at 7.)
Discussion
A. Failure to Appeal and/or Improper Collateral Attack
10. It appears that Kelly did not appeal, and a defendant who fails to attack his sentence on direct appeal generally is barred from raising the issue in a § 2255 proceeding unless he can show cause and prejudice or a fundamental miscarriage of justice. United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994), citing United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584 (1982). However, the Court will proceed to decide Kellys Motion on the merits, particularly in view of the fact that for some unknown reason, the Information to which Kelly pled and the signed final Plea Agreement were not located or found in the court file.
11. The government argues that Kelly waived his right to collaterally attack his sentence and that the Court should dismiss Kellys § 2255 Motion for lack of subject matter jurisdiction. The government relies on express language regarding waiver in both plea agreements, one of which was not located. Again, the Court elects to address Kellys Motion on the merits.
B. Involuntary Plea
12. Kelly alleges that the voluntariness of his guilty plea was tainted because he did not understand the consequences imposed in accordance with that plea.
The essence of Kellys argument appears to stem from the Courts initial misstatement, at the April 8, 1999 hearing, of Kellys sentencing guideline range and its subsequent correction of that range after objection by the government. Kelly contends that the governments objection to the Courts initial proposed confinement range was erroneous and that the government reneged on a promise. The Court found that Kellys minimum mandatory confinement was five years and then allowed a downward departure based on Sentencing Guideline § 5K2.12 (Coercion and Duress). (Apr. 8 Tr. at 5.) The Court first proposed departing downwards by nine levels from an offense level of 29 to 20, resulting in a guideline imprisonment range of 37 to 46 months. (Apr. 8 Tr. at 6.) The government immediately objected to the proposed imprisonment range because the statutory minimum for the offense to which Kelly pled was five years confinement. (Apr. 8 Tr. at 6; 21 U.S.C. § 841(b)(1)(B).) The government correctly pointed out that the only way Kelly could be sentenced to less than the five year statutory minimum was to find him safety valve eligible, which could not be done because of Kellys criminal history. (Apr. 8 Tr. at 6; 18 U.S.C. § 3553(f)(1); U.S. S. G. § 5C1.2.)
A second justification for imposing a sentence less than the mandatory minimum would be if Kelly had provided substantial assistance in a criminal investigation and the government had moved the Court under 18 U.S.C. § 3553(e) for such a reduction. No such motion was made in this case.
13. The Due Process Clause of the Fourteenth Amendment requires an affirmative showing that an accuseds guilty plea was entered knowingly and voluntarily before the trial court may accept the plea. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 2687 (1993); Parke v. Raley, 506 U.S. 20, 28, 113 S.Ct. 517, 523 (1992), rehg denied, 506 U.S. 1087 (1993). A plea is made voluntarily when it is entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel and is not induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutors business. Brady v. United States,
397 U.S. 742, 755, 90 S.Ct. 1463, 1472 (1970) (internal citation omitted).
14. During the first plea hearing on July 16, 1998, Kelly entered a guilty plea and was informed at that time that his guilty plea would result in a term of imprisonment of not less than ten years. (July 16 Tr. at 5.) When asked if he understood the terms of his sentence, Kelly answered, Yes, sir. (July 16 Tr. at 5.) It was explained a second time to Kelly at the July 16 plea hearing that the statutory minimum was ten years. (July 16 Tr. at 9-10.) The Court explained to Kelly, So if I sentence you to 120 months, and you're sitting in jail someplace and you decide you want to appeal, you have waived that right to appeal. In other words, thats it. Kelly responded: I understand. (July 16 Tr. at 10.) Kelly signed the July 16 Plea Agreement, setting forth a minimum sentence of ten years. [Doc. 98.] The possibility that Kelly might be eligible for a reduced sentence below the statutory minimum under the safety valve exception was raised at the July 16 plea hearing, but no promises were made to Kelly. (July 16 Tr. at 7, 8, 9.)
15. Subsequent to the July 16 plea, the government agreed that Kelly could plead to the lesser included offense. (Feb. 16 Tr. at 3.) Kelly stated that he understood that he was pleading to the lesser included offense and proceeded to plead guilty. (Feb. 16 Tr. at 4.) Kelly, however, raised the possibility that the Court might depart downward from the applicable guideline range under Sentencing Guideline § 4A1.3 (Adequacy of Criminal History Category), if the Court found that his past criminal conduct over represented the seriousness of his criminal history. (Feb. 16 Tr. at 5-6.)
No promises or representations were made to Kelly that he would be eligible for further reductions of the sentencing guideline range at the July 16 plea hearing. (See Feb. 16 Tr. at 5-6.) Instead, the Court suggested that Kelly might look into agreeing to enter a prison rehabilitation program that could reduce his confinement time. (Feb. 16 Tr. at 6-8.)
16. At the July 23 sentencing, Kellys attorney argued that Kelly might be entitled to a further reduction in his sentence under Sentencing Guidelines § 5K2.12 (Coercion and Duress) and § 5K. 1.1 (Substantial Assistance to Authorities). The Court asked for testimony from DEA Agent Small to determine if Kellys position that he was coerced could be corroborated. (July 23 Tr. at 9.)
No promises were made to Kelly at the July 23 sentencing, other than the governments explanation that it wanted to give Kelly an opportunity to earn a departure and that it would be reasonable if Kellys position could be corroborated by Agent Small. (July 23 Tr. at 5, 9.)
17. Kelly was allowed a downward departure under Sentencing Guideline § 5K2.12 (Coercion and Duress), resulting in an imprisonment range of 57 to 61 months. (Apr. 8 Tr. at 5-7.)
Nothing permitted the Court to depart below the statutory minimum confinement of five years. Kelly was sentenced to five years confinement. (Apr. 8 Tr. at 7.)
18. There is no indication on the record at either of the two plea hearings or two sentencings that Kelly was promised a sentence that he did not understand or receive. Kelly was aware of the nature and charges and consequences of the plea. (July 16 Tr. at 13.) He stated that he understood his plea of guilty during several of the plea hearings. The record makes clear that Kelly was fully aware of the consequences that he faced when he pled guilty, and that Kelly actively participated in raising questions during his plea hearings and sentencings. Again, while the record reveals that the arguments regarding possible reductions of his sentence were raised and explored fully, nothing in the record shows that Kelly was promised a departure or a specific sentence that he did not receive.
19. Kellys Motion to Vacate confirms that he understood what he was promised and that he received the sentence he was promised. Petitioner was assured by his counsel that the government would ask for a five year term of imprisonment to be imposed of the petitioner agreed to sign the plea agreement without further delay. (Motion to Vacate at 4.) The Courts initial departure to an offense level of 20 and a possible imprisonment range of 37 to 46 months were mistaken as immediately and correctly pointed out by the government. The statutory minimum of five years for the offense is mandatory, and Kellys circumstances did not permit the Court to avoid the statutory minimum. There is no indication that Kellys guilty plea was induced by a promise that he would receive anything less than five years.
20. The Courts proposed finding is that Kelly has not met his burden of showing that his guilty plea was involuntary due to his alleged failure to understand the consequences of his plea. The record establishes that the consequences of Kellys plea were fully explained to him and that he voluntarily and knowingly entered a plea of guilty.
C. Ineffective Assistance of Counsel
21. Kelly argues that his attorney rendered ineffective assistance of counsel because he failed to object at the April 8, 1999 sentencing when the government explained to the Court that it could not depart below the statutory mandatory confinement period of five years. Rather than objecting, Kellys attorney, as well as the Probation Officer, agreed that the Court was bound by the statutory minimum, in accordance with 21 U.S.C. § 841(b)(1)(B).
22. To establish ineffective assistance of counsel, Kelly must make a two-prong showing:
(1) that counsels performance was constitutionally defective; and
(2) that the deficient performance prejudiced the defense, in that counsels errors were so serious as to deprive the defendant of a defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). To prove deficient performance, Kelly must overcome the presumption that counsels conduct was constitutionally effective. Duvall v. Reynolds, 139 F.3d 768, 776 (10th Cir. 1998). Scrutiny of counsels performance must be highly deferential and must avoid the distorting effects of hindsight.
Miles v. Dorsey, 61 F.3d 1459, 1474 (10th Cir. 1995). In order to be found constitutionally ineffective, trial counsels performance must have been completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy. Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997).
23. The performance of Kellys attorney, Ron Koch, at the plea hearings and sentencings, was not unreasonable, and certainly not completely unreasonable. Mr. Kochs failure to object to the governments explanation to the Court that it could not avoid the statutory minimum of five years was proper. Mr. Koch should not be encouraged to make an unfounded and improper objection, which is what Kelly would have had him do. The failure to object to the imposition of a statutory minimum sentence, even though Sentencing Guidelines may permit a lesser sentence, does not demonstrate ineffective assistance of counsel. Santana v. United States, 98 F.3d 752, 756-57 (3rd Cir. 1996). The Court is powerless to impose a sentence below the statutory minimum without a motion of the government based on substantial assistance or the petitioners satisfaction of the safety valve exception to the statutory minimum, neither of which occurred here. Id.; 18 U.S.C. § 3553(e); 18 U.S.C. § 3553 (f)(1)-(5). And because the court was powerless to impose a sentence below the statutory minimum, [Petitioner] cannot show that his attorneys performance was objectively unreasonable as required by a claim for ineffective assistance of counsel. Santana, at 756.
24. Mr. Koch actually negotiated an advantageous plea for Kelly under all of the circumstances and did not perform deficiently. Kelly has failed, therefore, to establish the first prong of the Strickland test, and has no valid claim for ineffective assistance of counsel.
D. Prosecutorial Misconduct
25. Kelly claims that the prosecution engaged in misconduct by incorrectly applying the sentencing guidelines. Specifically, Kelly alleges that the downward departure he received under Sentencing Guideline § 5K2.12 (Coercion and Duress) should have been calculated from the new plea rather than the old plea, resulting in an offense level of 20 and a sentencing confinement range of 37 to 46 months. (Doc. 1 at 8; Apr. 8 Tr. at 6.)
26. Kellys position appears to rest on the Courts first proposal to impose such a sentence, prior to the governments correction that Kelly could not avoid the mandatory statutory minimum of five years. (Apr. 8 Tr. at 6-7.) Sentencing Guideline § 5K2.12 only permits a reduction below the applicable sentencing guideline range. Section 5K2.12 does not allow the Court to avoid the statutory minimum sentence of five years. 21 U.S.C. § 841(b)(1)(B).
27. The government correctly applied the sentencing guidelines in relation to the applicable statutory mandatory confinement period. There is nothing in the record to indicate that the government promised Kelly a sentence of less than five years, and it is not prosecutorial misconduct to inform the court that it cannot impose a sentence below the mandatory minimum.
E. Professional Misconduct by the United States Probation Department
28. Kelly alleges that the United States Probation Officer engaged in professional misconduct by incorrectly determining Kellys criminal history category, thereby preventing Kelly from satisfying the requirements of the safety valve exception to the statutory minimum. (Doc. 1 at 9-10.)
29. Kellys counsel objected to several portions of the Pre-Sentence Report regarding the calculation of Kellys criminal history. (Doc. 102 in CR 97-315.) Specifically, Kelly claimed that paragraphs 37 and 41 of the criminal history portion of the Pre-Sentence Report were incorrect and that criminal history points should have been removed for the offenses described in those paragraphs. (Doc. No. 102.) However, there were no criminal history points given in relation to the offenses described in paragraphs 37 and 41. (Pre-Sentence Report at ¶ 37, 41.) Instead, Kelly received a total of 2 criminal history points related to criminal offenses described in paragraphs 36 and 43 of the Pre-Sentence Report.
30. Based on Sentencing Guideline § 4A1.1, those points are correctly calculated in accordance with Kellys criminal history.
The government argues that Kellys criminal history points were assigned incorrectly and that he actually should have received a total of four rather than two points. However, it appears that the government may not have carefully considered Sentencing Guideline § 4A1.2(a)(3) that provides for suspended convictions to be counted under § 4A1.1(c). Section 4A1.1(c) states that one point is added for suspended sentences, and since Kelly received suspended sentences for the two relevant offenses, § 4A1.1(c) appears to be applicable rather than § 4A1.1(b) as the government argues.
Kelly received two different suspended sentences, one in 1988 for reckless use of a weapon, and the other in 1990 for disorderly conduct. He was assigned one criminal history point for each of these suspended sentences under Sentencing Guidelines § 4A1.1, § 4A1.2(a)(3), § 4A1.2(e)(2). Because Kelly had more than one criminal history point, he could not satisfy all of the required elements of the safety valve exception to the mandatory statutory minimum. 18 U.S.C. § 3553(f)(1). Therefore, he was not eligible for a reduction below the statutory minimum of five years confinement.
31. Moreover, in the event that Kelly argues his criminal history points should be reduced because his criminal history score over represents the seriousness of his criminal history, thereby justifying a further reduction of his sentence under Sentencing Guideline § 4A1.3, such argument is rejected. Section 4A1.3 does not authorize a court to subtract individual criminal points from Kellys record and does not provide a court with any discretion in the calculation of the criminal history points. United States v. Owensby, 188 F.3d 1244, 1246, 1247 (10th Cir. 1999). A defendant may not avoid a statutory minimum under 18 U.S.C. § 3553(f) if the defendant has more than one criminal history point. Id. at 1245-46; 18 U.S.C. § 1353(f)(1).
32. It is the Courts proposed finding that the United States Probation Officer did accurately calculate the criminal history points, and therefore, that there was no professional misconduct in the determination of Kellys criminal history.
Recommended Disposition
(1) That Kellys Motion to Vacate, brought under 28 U.S.C. § 2255, be denied and the case dismissed, with prejudice; and (2) That Kellys Motion for Emergency Hearing for Writ of Habeas Corpus (Doc. 2) be denied as moot.