Opinion
Criminal Action No. 04-324, Civil Action No. 05-6830.
June 15, 2006
MEMORANDUM OPINION
The defendant, who pled guilty to illegal possession of a firearm by a convicted felon pursuant to a written plea agreement containing a waiver of appeal provision, has filed a pro se motion under 28 U.S.C. § 2255, alleging ineffective assistance of counsel at his sentencing and on direct appeal. He argues that his counsel failed to object to sentencing enhancements in his presentence investigative report ("PSI") at his sentencing hearing, and then failed to raise Booker/Blakely claims on appeal. He does not contest the validity of his guilty plea or the plea agreement. Nor does he question the appellate waiver. Casting his challenge as an ineffectiveness of counsel claim, he attacks his sentence, which was within the applicable sentencing guideline range and less than the statutory maximum.
The government seeks dismissal of the motion because the defendant waived his appellate rights, including the right to collaterally attack his sentence, in his plea agreement. In the alternative, the government argues that the defendant's claims are without merit because Booker does not apply retroactively to cases on collateral review, and the ineffective assistance claims are meritless.
I conclude that the defendant knowingly and voluntarily waived the right to collaterally attack his sentence, and that upholding the waiver will not result in a miscarriage of justice. Even if there were no valid waiver, the defendant's claims fail on the merits. Therefore, the defendant's motion must be denied.
Procedural History
The defendant was charged in an information on June 3, 2004, with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On June 29, 2004, pursuant to a written plea agreement, the defendant entered a guilty plea. The plea agreement included a waiver of appellate rights. He also waived his right to pursue a collateral attack through a habeas motion to vacate, set aside or modify his sentence. The defendant limited his right to appeal to three instances. He reserved the right to appeal only if the government appealed, his sentence exceeded the statutory maximum, or the sentencing judge erroneously departed upward from the sentencing guideline range.
On December 15, 2004, the defendant was sentenced to 78 months imprisonment. He filed a timely notice of appeal with the Third Circuit Court of Appeals. On February 3, 2005, the Third Circuit granted the government's motion to enforce the appellate waiver, and dismissed the defendant's appeal for lack of jurisdiction.
On December 30, 2005, the defendant filed his pro se motion under 28 U.S.C. § 2255. The government filed its response.
The Appellate Waiver
Appellate waivers are valid and enforceable if entered knowingly and voluntarily, and enforcing them will not work a miscarriage of justice. United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). Appellate waivers cover meritorious and debatable claims. Later changes in the law do not affect the validity of a waiver nor the guilty plea itself. United States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005). A waiver of appeal includes relinquishing "the opportunity to challenge the sentence imposed, regardless of the merits". Id. at 561.
A waiver may be invalidated in the unusual circumstance where an error amounts to a miscarriage of justice. Id. at 561-62. Analyzing whether an appellate waiver should be set aside to avoid a potential miscarriage of justice, the court considers a number of factors. Khattak, 273 F.3d at 563. Relevant factors include "the clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result." United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). While noting that it "chose not to earmark specific situations," the Khattak court stated that these factors are offered as "some guidelines," and emphasized that the governing standard is one of a "miscarriage of justice." Khattak, 273 F.3d at 563.
Only where the petitioner claims that the waiver itself was the result of counsel's ineffectiveness will courts decline to enforce an appellate waiver when a petitioner claims ineffective assistance of counsel in a 28 U.S.C. § 2255 motion. United States v. White, 307 F.3d 336, 337 (5th Cir. 2002); United States v. Clark, No. 05-2201, 2006 WL 1096157 at *2 (3d Cir. Apr. 26, 2006). Thus, all other ineffectiveness contentions are precluded by the waiver.
To ensure that an appellate waiver is knowing and voluntary, the judge must inform the defendant of the plea agreement provisions waiving the right to appeal or collaterally attack a sentence, and determine that the defendant understands the waiver. Khattak, 273 F.3d at 560. In his motion, the defendant does not contend that he entered the plea agreement unknowingly or involuntarily, or that he did not understand the waiver. At his guilty plea, the defendant was specifically advised of his appellate rights and his right to collaterally attack his sentence by a habeas petition. He acknowledged he had these rights and that he was relinquishing them. Thus, the defendant's appellate waiver was knowing and voluntary; and, absent a miscarriage of justice, it should be enforced.
Justice will not be compromised by enforcing the waiver. The defendant admitted at the sentencing hearing that he had gone over the PSI with his attorney and had informed him of "anything [he] thought was wrong or should be added in there". Sentencing Transcript, Dec. 15, 2004 at 2 ("Tr."). The defendant agreed that he was to be sentenced under the Sentencing Guidelines as they existed on the date of his sentencing, and that his total offense level was 23 with a criminal history category of four, resulting in a range for a custodial sentence of 70 to 87 months. He also agreed that the statutory maximum sentence was 120 months. Id. at 3.
The defendant was sentenced to 78 months, in the middle of the applicable range. In imposing sentence, the court informed the defendant that the sentence would have been the same even if it had not been imposed under the guidelines. At the close of the sentencing hearing, the defense attorney advised the defendant of his appellate rights, including the appellate waiver. Tr. at 32.
Because the waiver was knowing and voluntary, it must be enforced. The government did not appeal the sentence, the sentence was within the guidelines and did not exceed the statutory maximum sentence. The defendant has not offered nor do I find any circumstances that would result in a miscarriage of justice by enforcing the waiver. Therefore, the appellate waiver will be upheld.
Ineffective Assistance of Counsel
Even if the appellate waiver were invalid, the defendant's claims fail on the merits. The defendant argues that his counsel was ineffective because his attorney failed to object to erroneous sentencing enhancements and to include a Booker/Fan Fan and Blakely argument in his direct appeal.
An ineffective assistance of counsel claim is evaluated under the two-step Strickland test which considers, first, whether counsel's performance was so deficient as to constitute a denial of counsel; and, if so, then, whether the alleged errors prejudiced the defendant by depriving him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984).
The defendant argues that his attorney should have objected to the one point enhancement for his disorderly conduct conviction and the two point enhancement for committing the instant federal offense while on probation. Mot. to Vacate/Set Aside/Correct Sentence, Document No. 23, at 7. The defendant's argument fails for two reasons. First, the defendant misunderstands his criminal history sentencing enhancements. He received a three point enhancement for his escape status and a one point enhancement for his disorderly conduct charge. Second, the sentencing enhancements were appropriately calculated. The defendant admitted at his sentencing hearing that he had gone over the PSI with his attorney, there were no errors, there were no changes he wanted made, and he agreed that the offense level and criminal history category were correctly calculated. Tr. at 3.
The defendant cannot demonstrate that his attorney's performance was deficient. His attorney accepted the defendant's acquiescence in the facts recited in the PSI. Counsel had no basis for making a good faith argument that the enhancements did not apply.
The defendant also argues that his counsel was ineffective for failing to include a Booker/Fan Fan and Blakely argument in his direct appeal. He argues that he was sentenced under the false assumption that the sentencing guidelines were mandatory and not merely advisory, and his sentence is void in light of Booker. This argument is likewise meritless.
In imposing sentence I stated that "my sentence would be the same if I had imposed it under the statutory provisions, as opposed to the Sentencing Guidelines." Tr. at 33. Where the district court states that an alternative sentence would be identical to the sentence imposed under the sentencing guidelines, any error that may attach to a defendant's sentence under Booker is harmless. United States v. Hill, 411 F.3d 425, 426 (3d Cir. 2005); United States v. Murray, No. 04-3572, 2006 WL 1049679 at *2 (3d Cir. Apr. 21, 2006). Consequently, the defendant cannot establish any prejudice.
The defendant also argues that his counsel was ineffective because he did not raise a Booker/Fan Fan or Blakely argument on appeal. The Third Circuit has held that "where a criminal defendant has voluntarily and knowingly entered into a plea agreement in which he or she waives the right to appeal, the defendant is not entitled to resentencing in light of Booker." United States v. Lockett, 406 F.3d 207, 214 (3d Cir. 2005). Putting aside the appellate waiver, counsel cannot be faulted for failing to raise a legal issue that was not established, especially where the defendant's sentence was no different than it would have been had the sentencing guidelines not been applied. United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005).
Conclusion
The defendant's appellate waiver was knowing and voluntary, and enforcing it will not work a miscarriage of justice. Even if the waiver were invalid, the defendant's claims of ineffectiveness of counsel are meritless. Therefore, the motion will be denied.