Opinion
NO. 3-00-CR-0038-L, NO. 3-02-CV-1201-L
November 14, 2002
FINDINGS, CONCLUSIONS 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 an order of reference from the United States District Court for the Northern District of Texas. The findings, conclusions and recommendation of the United States Magistrate Judge follow:
PROCEDURAL BACKGROUND
Movant pled guilty to interstate travel with intent to engage in a sexual act with a juvenile in violation of 18 U.S.C. § 2423(b). Punishment was assessed at 63 months confinement, followed by supervised release for a period of three years. Movant appealed. The Fifth Circuit affirmed. United States v. Rhodes, 253 F.3d 800 (5th Cir. 2001). He then filed this motion seeking post-conviction relief under 28 U.S.C. § 2255.
ISSUES RAISED
Movant attacks his conviction and sentence in four related grounds for relief each asserting the he received ineffective assistance of counsel. Specifically, movant contends that counsel was ineffective because: (1) counsel failed to move to withdraw his guilty plea at sentencing when it became apparent that the plea was not entered knowingly; (2) counsel did not move to withdraw his guilty plea at sentencing when it became apparent that the plea agreement would not be accepted by the trial court; (3) counsel's failure to move to withdraw his guilty plea resulted in the use of a less favorable standard of review on appeal; and (4) counsel did not adequately prepare for sentencing.
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 proceeding 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). 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).
To ensure that a guilty plea is voluntary, 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).
FACTUAL BACKGROUND
Movant's claims revolve around the understanding of the parties as to the provisions of the plea agreement, as well as the actions taken by the parties at sentencing. A thorough recitation of the factual background of this case is necessary for a review of his claims.
A. Plea Agreement Provisions
The plea agreement recites the maximum punishment for a violation of 18 U.S.C. § 2423(b) is "imprisonment for a period not to exceed fifteen (15) years." (Plea Agr. ¶ 3). The agreement also 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 no one can predict with certainty what guideline range will be applicable in this case until after a pre-sentence investigation has been completed and the Court has ruled on the results of that investigation. The defendant will not be allowed to withdraw his plea if the applicable guideline range is higher than expected, or if the Court departs from the guideline range.
( Id. ¶ 4) (emphasis added). The plea agreement further provides "[p]ursuant to Federal Rule of Criminal Procedure 11(e)(1)(B) both parties stipulate and agree: 1) that Section 2G1.1 of the Sentencing Guidelines applies to this offense." ( Id. ¶ 8). Finally, the agreement states:
This plea of guilty [sic] is freely and voluntarily made and not the result of force or threats or of promises or representations apart from those set forth in this plea agreement. There have been no representations or promises from anyone as to what sentence this Court will impose.
( Id. ¶ 12) (emphasis added).
B. Plea Hearing
At the plea hearing, the trial court admonished movant that the maximum possible punishment he faced was fifteen years. (Rearraignment Tr. at 11). The trial court also questioned movant as to the plea agreement:
THE COURT: Mr. Rhodes, before we commenced this proceeding, did you have an opportunity to discuss the plea agreement with your lawyer?
[MOVANT]: Yes, sir.
THE COURT: Did you also have an opportunity to read the plea agreement?
[MOVANT]: Yes, sir.
THE COURT: Do you understand the terms of the plea agreement?
[MOVANT]: Yes, sir.
* * *
THE COURT: Mr. Rhodes, does the plea agreement represent in its entirety any understanding that you have with the government concerning your case?
[MOVANT]: Yes, sir.
THE COURT: Has anyone made other or different promise[sic] or assurance[sic] to you of any kind apart from that which is set forth in the plea agreement in an effort to get you to plead guilty in this case?
[MOVANT]: No, sir.
THE COURT: With respect to the plea agreement, Mr. Rhodes, do you understand that the terms of the plea agreement are merely a recommendation to the court and that the court can reject the recommendation and impose a sentence that is more severe that you may anticipate including a sentence up to and including the maximum allowed by law?
[MOVANT]: Yes, sir.
THE COURT: Do you understand, sir, that if I do not accept a recommendation as set forth in the plea agreement, you will have no right to withdraw your guilty plea?
[MOVANT]: Yes, sir.
THE COURT: Sir, has anyone threatened you or attempted in any way to attempt to force to you [sic] plead guilty in this case?
[MOVANT]: No, sir.
THE COURT: Are you pleading guilty of your own free will because you are guilty.
[MOVANT]: Yes, sir.
( Id. at 7-9). The trial judge further questioned movant during the plea hearing as to his understanding of the sentence he faced:
THE COURT: Has anyone made any prediction or promise to you as to what your sentence will be?
[MOVANT]: No, sir.
THE COURT: Do you understand, sir, that I and I alone will decide what your sentence will be?
[MOVANT]: Yes, sir.
* * *
THE COURT: Do you understand that I am required to take into account such things as the actual conduct in which you engaged the victim of your offense, the role you played, and whether you have accepted responsibility for your relevant conduct or have attempted to obstruct justice?
[MOVANT]: Yes, sir.
THE COURT: Do you understand, sir, that your criminal history plays an important factor in applying the guidelines.
[MOVANT]: Yes, sir.
THE COURT: When you discuss the guidelines with your attorney, did your attorney offer you an opinion concerning what guideline range he thought might apply to your case so that you could decide whether you want today [sic] plead guilty this afternoon?
[MOVANT]: Yes, sir.
THE COURT: You understand that when your attorney gives you such an opinion, he is doing so as one who has expertise and experience in criminal law and the sentencing guidelines, that he can not guarantee you or promise you that his opinion is correct and his opinion may be different from my sentence?
[MOVANT]: Yes, sir.
THE COURT: Do you understand, sir, that neither I nor your lawyer will be able to determine the guideline sentence for your case until after a pre-sentence report has been prepared by the probation officer, and you and the government have each had an opportunity to object to the facts reported by the probation officer and the application of the guidelines recommended by the probation officer?
[MOVANT]: Yes, sir.
THE COURT: Do you understand, sir, that no one, including your lawyer, can predict in advance what your sentence will be?
[MOVANT]: Yes, sir.
* * *
THE COURT: Do you also understand that if the sentence I impose is more severe than you expected, you will still be bound by your plea of guilty and you will have no right to withdraw your guilty plea?
[MOVANT]: Yes, sir.
( Id. at 13-16). At the conclusion of the plea hearing, the trial court found that movant was competent to enter his plea, was aware of the consequences of his plea and therefore that his plea was knowing and voluntary. ( Id. at 18).
C. Sentencing Hearing
At the sentencing hearing, defense counsel objected to the pre-sentence report as to the choice of guideline used to calculate movant's sentence in the pre-sentence report. Counsel reiterated the agreement of the parties to use § 2G1.1 of the guidelines, and argued why that was the appropriate guideline, based on movant's actual conduct. (Sentencing Tr. at 3-5, 13-31). Government counsel joined in that argument. ( Id. at 7-12, 25-26). The trial judge, however, emphasized that the agreement between the parties was not binding on the court. ( Id. at 5). Both defense counsel and the government acknowledged the non-binding nature of the agreement. ( Id. at 6, 12, 33). Government counsel specifically stated "that there will be no ability on the part of the defendant to withdraw his plea if the Court rejects that recommendation." ( Id. at 12). Following extensive argument, the trial court rejected the plea agreement as to the recommendation that section 2G1.1 of the guidelines applied. ( Id. at 33-34).
DISCUSSION
Movant first complains that counsel erred by failing to move to withdraw his guilty plea at sentencing when it became apparent that the plea was not entered knowingly. He asserts that he was not aware that "the [plea] agreement he entered into was not binding within any range of punishment." (Motion at 4a). According to movant, he did not understand the conditions which might affect his sentence. Rather, he believed any variation in his sentence would be based solely on his conduct while awaiting sentencing. Thus, movant contends that once it became apparent at sentencing that he would be subjected to a higher range of punishment than expected, counsel should have moved to withdraw his plea.
The record clearly rebuts this conclusion. Movant repeatedly acknowledged in his plea agreement and during his guilty plea hearing, that his sentence would be up to the trial court. Further, the trial court carefully admonished him as to the factors which would affect his sentence, including his prior conduct. Movant also acknowledged his understanding that he would not be permitted to withdraw his guilty plea if his sentence was higher than he expected. This claim is clearly without merit.
Next, movant maintains counsel erred by not moving to withdraw his guilty plea at sentencing when it became apparent that the plea agreement would not be accepted by the trial court. As reviewed above, the trial court clearly informed movant that he would not be permitted to withdraw his guilty plea if the sentence imposed was higher than he expected. This fact alone is sufficient to support a conclusion that the trial judge would have rejected any request to withdraw the guilty plea.
Moreover, a trial court considers seven factors when evaluating a request to withdraw a guilty plea, whether: (1) the defendant has asserted his innocence; (2) withdrawal will prejudice the government; (3) the defendant delayed in filing his withdrawal motion; (4) withdrawal would substantially inconvenience the court; (5) close assistance of counsel was available to a defendant; (6) the plea was knowing and voluntary; and (7) withdrawal would waste judicial resources. United States v. Adam, 296 F.3d 327, 332 (5th Cir. 2002); United States v. Brewster, 137 F.3d 853, 857 (5th Cir. 1998). Here, movant has consistently admitted his guilt, his request to withdraw would have come during the sentencing hearing, he was at all times advised by counsel and the trial court specifically found his plea knowing and voluntary. Thus, there is no reason to believe that a request by counsel to withdraw the plea would have been successful. Movant has not, therefore, established any prejudice to him at the trial court level from counsel's alleged failure.
In a related claim, movant does assert that, had counsel moved to withdraw his plea, he would have been entitled to a more favorable appellate standard of review. On appeal, movant asserted that the district court erred in failing to afford him an opportunity to withdraw his guilty plea after rejecting the plea agreement. The Fifth Circuit reviewed this claim under a plain error standard, because movant had not requested to withdraw his guilty plea in the trial court. Rhodes, 254 F.3d at 804. In rejecting the claim, the appellate court found that the plea agreement did not include a binding stipulation regarding sentencing, but rather only a non-binding recommendation as to the applicable sentencing guideline. Id. at 804-05. This Court finds that, in light of the appellate finding that the plea agreement contained only a recommendation, movant's claim on appeal would have failed even under an abuse of discretion standard of review. Movant has not, therefore, established any prejudice, either at the trial or appellate level, resulting from counsel's failure to move to withdraw his guilty plea.
Movant last alleges that counsel did not adequately prepare for sentencing. He claims counsel: (1) was unaware of an amendment to the sentencing guidelines dealing directly with his case; (2) did not inform him that his confession of prior acts would increase his sentence; and (3) was not prepared to withdraw his plea at sentencing when the judge rejected the plea agreement recommendation. Movant does not identify the amendment which purportedly applied to his case. His first contention fails on that basis.
As to his second argument, the presentence report states that movant admitted to prior sexual contact with an 8-year-old girl to an undercover officer during the commission of this offense. (Presentence Report ¶ 11). The trial judge relied on that admission to sentence movant at the top of the guideline range. (Sentencing Tr. at 38). Clearly, counsel could not have prevented movant's prior admission. Movant was also admonished by the trial judge that his prior history would affect his sentence. He has not, therefore, established counsel's ineffectiveness on this point. Finally, the Court has already concluded that any request by counsel to withdraw movant' s guilty plea would have failed. Accordingly, this ground for relief is completely without merit and should be denied.
RECOMMENDATION
The motion to correct, vacate, or set aside sentence should be denied.