Opinion
NO. 3-97-CR-0397-R, NO. 3-00-CV-2179-R
January 16, 2001
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I. PROCEDURAL BACKGROUND
Movant Miguel Angel Morales-Sosa has filed a motion to correct, vacate, or set aside his sentence. Movant is an inmate in the federal prison system. Respondent is the United States of America.
Movant pled guilty to conspiracy to possess with intent to distribute at least three ounces of heroin in violation of 21 U.S.C. § 846. Punishment was assessed at 135 months confinement followed by supervised release for a period of three years. His conviction and sentence were affirmed on direct appeal. United States v. Morales-Sosa, No. 98-10502 (5th Cir. Sept. 30, 1999). Movant then filed this motion under 28 U.S.C. § 2255.
II. ISSUES PRESENTED
The precise grounds upon which movant seeks relief are difficult to decipher from his pro se motion and accompanying brief. However, he appears to argue that: (1) the charging instrument was legally insufficient; (2) his guilty plea was invalid; (3) he received ineffective assistance of counsel; and (4) his sentence is unconstitutional under Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
The Court sua sponte notes that movant waived his right to seek post-conviction relief as part of the plea agreement. (Plea Agr. ¶ 11). Except for the claims involving his guilty plea and ineffective assistance of counsel, the other grounds raised by movant appear to be barred from collateral review. However, the government does not seek dismissal on the grounds of waiver. Therefore, the Court will consider all claims on the merits.
III. DEFECTIVE INFORMATION
Movant waived indictment and pled guilty to a one-Count information charging him with conspiracy to possess with intent to distribute at least three ounces of heroin. He now contends that the information was constitutionally defective because it did not provide notice of the charges against him and the "actual maximum penalty he face[d]." (Brief at 18).A. Applicable Law
An indictment or information that sets forth the elements of an offense in language clear enough to enable the defendant to plead a bar in jeopardy does not raise a jurisdictional defect. Alexander v. McCotter, 775 F.2d 595, 599 (5th Cir. 1985); United States v. Montemayor, 703 F.2d 109, 119 (5th Cir.), cert. denied, 104 S.Ct. 89 (1983). The court must liberally construe the charging instrument in favor of the government. United States v. Prince, 868 F.2d 1379, 1384 (5th Cir.), cert. denied, 110 S.Ct. 321 (1989). An indictment or information is sufficient for jurisdictional purposes if "by any reasonable construction it can be said to charge an offense." Id., quoting United States v. Trollinger, 415 F.2d 527, 528 (5th Cir. 1969).
B. Discussion
Movant was charged with conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846. The essential elements of the offense are: (1) an agreement between two or more persons to violate the drug laws; (2) knowledge of the agreement; and (3) participation in the agreement. United States v. Chavez, 119 F.3d 342, 347 (5th Cir.), cert. denied, 118 S.Ct. 615 (1997).
The statute provides that:
Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.21 U.S.C. § 846. The maximum penalty for possession or distribution of less than 100 grams of heroin is 20 years confinement. See id. § 841(b)(1)(C).
The information charges that movant and others "knowingly, intentionally and unlawfully combined, conspired, and agreed . . . to commit offenses against the United States, to wit: the possession with intent to distribute and the distribution of at least three ounces of a mixture or substance containing a detectable amount of heroin, in violation of Title 21, United States Code, Section 841(a)(1) . . ." (Information at 1). The conspiracy began on a date unknown and continued through October 24, 1997. (Id.).
The Court concludes that the information in this case was sufficient to place movant on notice of the charges against him. The government alleged that movant agreed with others to possess and distribute at least three ounces of heroin. The information specifies the approximate date of the conspiracy and the statutes violated. These allegations, taken as a whole, establish movant's knowledge and participation in an agreement to violate the drug laws. See United States v. Khan, 728 F.2d 676, 681 (5th Cir. 1984) (indictment valid if it alleges conspiracy to distribute drugs, relevant time period, and statute violated). This ground for relief is without merit and should be overruled.
IV. GUILTY PLEA
Movant also challenges the validity of his guilty plea. He argues that: (1) his attorney misrepresented that the government would recommend a 36 month sentence: and (2) the trial court's admonishments regarding punishment were unconstitutionally vague.
A. Applicable Law
A trial judge is required to ensure that a guilty plea is knowing and voluntary. See James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). The defendant must "[have] a full understanding of what the plea connotes and of its consequences." Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied, 112 S.Ct. 1678 (1992), quoting Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). The Fifth Circuit has identified three core concerns in a guilty plea proceeding: (1) the absence of coercion; (2) a full understanding of the charges; and (3) a realistic appreciation of the consequences of the plea. United States v. Gracia, 983 F.2d 625, 627-28 (5th Cir. 1993). Rule 11 of the Federal Rules of Criminal Procedure provides "prophylactic protection" for these constitutional rights. See id. at 627; United States v. Bernal, 861 F.2d 434, 436 (5th Cir. 1988), cert. denied, 110 S.Ct. 203 (1989).
A guilty plea may be involuntary when an attorney "materially misinforms" the defendant of the consequences of his plea or the probable disposition of the case. United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990), cert. denied, 111 S.Ct. 1079 (1991); see also United States v. Rumery, 698 F.2d 764, 766 (5th Cir. 1983). However, misinformation about the likely period of incarceration does not vitiate the plea. See Gracia, 983 F.2d at 629; United States v. Jones, 905 F.2d 867, 868 (5th Cir. 1990). A defendant must prove that the advice given by his attorney was so deficient and misleading that he was denied the effective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985).
B. Discussion
Movant pled guilty to one count of conspiracy to possess with intent to distribute at least three ounces of heroin. (Guilty Plea Tr. at 3). The factual resume specifies that movant "personally participated, directly or indirectly, in the distribution of approximately three ounces of heroin and by negotiating heroin transactions in Dallas, Texas." (Factual Resume ¶ 2). Evidently, movant thought his sentence would be limited to the amount of drugs reflected in the factual resume. However, the trial court also considered movant's participation in other drug transactions involving 6.436 kilograms of cocaine, 654.98 grams of heroin, and 156.5 grams of amphetamine. This increased his offense level for sentencing purposes from 21 to 31.
The base offense level for an offense involving these drug amounts is 34. See U.S.S.G. § 2D1.1(c)(3). Movant received a two-level increase for possession of a firearm and a five-level reduction for acceptance of responsibility and substantial assistance. See id. §§ 2D1.1(b)(1), 3E1 .1(a) 5K1.1. This resulted in a total offense level of 31. The range of punishment for a level 31 offense is 108-135 months, as opposed to 37-46 months for a level 21 offense. See id., Table.
A careful review of the plea agreement and rearraignment transcript reveals that movant was properly admonished in accordance with Rule 11. The plea agreement states:
The sentence in this case will be imposed by the Court. There is no agreement as to what that sentence will be. Sentencing is pursuant to the Sentencing Reform Act of 1984, making the Sentencing Guidelines applicable. The defendant has reviewed the application of the guidelines with his attorney, but understands that no one can predict with certainty what guideline range will be applicable to this case until after a pre-sentence investigation has been completed and the Court has ruled on the results of that investigation.
(Plea Agr. ¶ 4) (emphasis added). At the plea hearing, movant was informed that the maximum penalty for the offense was 20 years confinement and a $1 million fine. (Guilty Plea Tr. at 3). Movant testified that he understood the penalties and declined to ask any questions. (Id. at 4). Although defense counsel estimated a low-end guideline range of 36 months, he did not give movant a high-end estimate. (Id. at 12). This prompted the judge to inquire further:
[THE COURT]: Okay. I'll ask the defendant do you understand what your attorney has told you about sentencing guidelines?
(THE DEFENDANT]: Yes, I understand.
[THE COURT]: You understand your guidelines means a minimum number of months and a maximum number of months that will be your guidelines?
[THE DEFENDANT]: Yes.
[THE COURT): I need for you to understand that there is no way for me to know or your attorney to know what your guidelines will turn out to be. Do you understand?
[THE DEFENDANT]: I don't understand.
[THE COURT]: Okay. Your attorney has given you an estimate of what he thinks you [sic] guidelines will be.
[THE DEFENDANT]: Yes.
[THE COURT]: I need for you to understand that's just what he thinks.
[THE DEFENDANT]: Yes.
[THE COURT): There is no way for me to know or him to know right now what your guidelines will turn out to be?
[THE DEFENDANT]: Yes, I understand.
[THE COURT]: You understand that?
[THE DEFENDANT]: Yes.
[THE COURT]: I need for you to understand that if your guidelines turn out to be higher than you may think or your attorney may think, you could not withdraw you [sic] plea of guilty?
[THE DEFENDANT]: I understand.
[THE COURT]: You understand once your guidelines are determined I have to give you a sentence within those guidelines.
(THE DEFENDANT]: Yes.
(Id. at 12-13).
Movant has failed to show that he did not understand the range of punishment for the offense or the consequences of his guilty plea. Indeed, it is difficult to envision a more thorough colloquy regarding the non-binding effect of counsel's estimate of the guideline range. The trial judge specifically told movant that any such estimate was not binding on the court, and that "if your guidelines turn out to be higher than you may think or your attorney may think, you could not withdraw you [sic] plea of guilty." (Id. at 13) (emphasis added). Movant repeatedly stated that he understood. Thus, even if counsel misled movant in this regard, it does not provide a basis for post-conviction relief. See Gracia, 983 F.2d at 629; Jones, 905 F.2d at 868. This ground for relief is without merit and should be overruled.
According to movant, the government told him that he faced a sentence of 10 years to life under 21 U.S.C. § 841(a). He complains that this statement is vague and short of the constitutional requirement under trial procedure." (Brief at 18). The Court has scoured the rearraignment transcript but is unable to find any such statement by the prosecutor or the trial judge. To the contrary, the prosecutor admonished movant in open court that the maximum punishment for the offense was 20 years confinement. (Guilty Plea Tr. at 3). Although the trial court is required to inform a defendant of the applicable mandatory minimum penalty and the maximum possible penalty, there is no mandatory minimum sentence attached to this offense as charged. the case; (2) did not keep him informed or consult with him on important decisions; and (3) had a conflict of interest.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
In various grounds scattered throughout his brief, movant contends that his legal representation was constitutionally deficient. He argues that his attorney: (1) failed to investigateA. Applicable Law
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. CONST. amend VI; Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain post-conviction relief due to ineffective assistance of counsel, a defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must first demonstrate that counsel's performance fell below an objective standard of reasonable professional service. Id., 104 S.Ct. at 2064. He then must show that this deficient performance prejudiced the defense such that the outcome of the trial would have been different. Id. There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). A defendant must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
B. Discussion
Movant first criticizes his lawyer for failing to investigate the government's case or advancing a plausible defense. Instead, counsel merely advised movant to plead guilty. Significantly, movant has not identified a viable defensive theory or explained what further investigation would have revealed. Absent such evidence, he cannot establish that counsel was ineffective. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot begin to analyze claim of ineffective assistance of counsel without affirmative showing of missing evidence or testimony).
Next, movant complains that his attorney never consulted with him on important decisions and failed to keep him informed. He states that he saw his lawyer only four times and that counsel never asked if he wanted to go to trial. However, movant does not suggest any additional steps counsel should have taken. Nor is it clear how movant was prejudiced by these alleged deficiencies. This type of conclusory allegation is insufficient to justify habeas relief. See Barnard v. Collins, 958 F.2d 634, 642 n. 11 (5th Cir. 1992), cert. denied, 113 S.Ct. 990 (1993) (habeas petitioner must show how alleged errors and omissions were constitutionally deficient).
Movant further contends that his attorney had a "conflict of interest" because he filed an Anders brief and sought permission to withdraw. These facts, standing alone, do not constitute ineffective assistance of counsel. Moreover, counsel was denied permission to withdraw and ultimately filed a brief raising non-frivolous issues This ground for relief is without merit and should be overruled.
In his brief, counsel argued that the trial court failed to expressly accept movant's guilty plea or the plea agreement as required by Rule 11(e)(3) of the Federal Rules of Criminal Procedure. The Fifth Circuit acknowledged that the trial judge varied from the procedures mandated by Rule 11(e)(3). However, it held that the error was harmless. United States v. Morales-Sosa, No. 98-10502, op. at 3-4 (5th Ctr. Sept. 30, 1999).
VI. APPRENDI CLAIM
Finally, movant claims that the government failed to allege and prove beyond a reasonable doubt the quantity of drugs involved in the conspiracy as required by Apprendi.
A. Applicable Law
The Supreme Court recently 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." Apprendi, 120 S.Ct. at 2362-63. Drug quantity determinations are critical to the statutory sentencing provisions of 21 U.S.C. § 841. Depending on the kind and amount of drugs involved, the maximum penalty for a drug-related offense increases from 20 years to life imprisonment. See 21 U.S.C. § 841(b)(1)(A) (b)(1)(C). Thus, "if the government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt." United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000). However, the ruling in Apprendi is "specifically limited to facts which increase the penalty beyond the statutory maximum, and does not invalidate a court's factual finding for the purpose of determining the applicable Sentencing Guidelines." Id. at 166; see also United States v. Meshak, 225 F.3d 556, 576-77 (5th Cir. 2000).
B. Discussion
Movant was convicted of a conspiracy involving at least three ounces of heroin. The statutory maximum penalty for this offense, without any enhancement based on drug quantity, is 20 years. See 21 U.S.C. § 841(b)(1)(C). Movant was sentenced to 135 months. Therefore, his sentence does not implicate Apprendi. See Doggett, 230 F.3d at 164-65 (distinguishing factual circumstances of enhancement). This ground for relief is without merit and should be overruled.
RECOMMENDATION
The motion to correct, vacate, or set aside sentence should be denied.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of the motion to correct, vacate, or set aside sentence in the above-styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwrighit, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).