Opinion
Case No. 02-1091-CV-W-HFS, Crim. No. 01-00082-01-CR-W-HFS
April 15, 2003
MEMORANDUM AND ORDER
Petitioner seeks relief under 28 U.S.C. § 2255 from a sentence of 192 months imposed after a guilty plea. He particularly objects to being sentenced based on a drug quantity of 54.32 grams, rather than on "the actual amount of drugs in Count One" which he says "was 26 grams."
The Government, as respondent, contends that collateral proceedings have been waived, under the plea agreement. Further, the plea agreement entered into by petitioner recites the drug quantity to which petitioner now objects.
This was the view of the Circuit when petitioner sought to appeal and the court dismissed the appeal.
I agree with the Government that petitioner is barred from appealing or seeking collateral relief from the sentence, at least under the circumstances here presented. While I did not refer to the waiver of collateral attack when taking the plea it is specifically stated in the plea agreement which petitioner signed. Further, I did alert petitioner to the fact that his sentence would be solely determined by the sentencing judge, whose ruling would be final, with exceptions not here pertinent. Transcript, page 10. When I said "the sentencing judge here has the last word on the sentence" I am satisfied that was adequate notice.
It is true that sometimes prosecutors orally recite there is a waiver of collateral attack in the plea agreement, but that may be meaningless to a defendant unfamiliar with habeas corpus practice. I do not believe a lecture on habeas corpus practice is required, even if it could be accomplished in a five minute lecture, which may be doubted. If I overstated the effect of the waiver, no harm was done.
I understand the Eighth Circuit waiver practice is somewhat in doubt, in that the various theories expressed by the panel in United States v. Andris, 277 F.3d 984 (8th Cir. 2002) seem not to have been resolved by the Court en Banc, which vacated Andris last April. Therefore I will say a bit about the merits, as an alternate reason for denying the motion.
The Government's Response (Doc. 7) appears to be sound. It may be added, however, that petitioner's quarrel is with sentencing guideline practice, which he seeks to question belatedly, having already agreed to the drug quantity which he now says was illegally used. Petitioner offers no authority supporting his apparent theory that a sentencing judge cannot go outside the charge and sentence in accordance with the admissions, including all relevant conduct.
Petitioner says he did not receive constitutionally adequate advice from counsel, but that seems largely based on his erroneous theory that he could not be sentenced for the drug amount specified in the plea agreement. Further counsel's affidavit is not specifically disputed in petitioner's response (Doc. 9), petitioner fails to establish that the result would be different if he had been differently represented, and petitioner fails to recite under oath that he would have declined the plea agreement, and refused to plead guilty, or sought trial if he had been differently advised.
Withdrawal of the plea and loss of acceptance of responsibility would expose him to a sentencing range of 262-327 months thus increasing his confinement by at least 70 months, almost six years.
There is of course no Apprendi issue when the drug amounts have been agreed to and remain uncontested, except insofar as petitioner mistakenly asserts he can only be sentenced on the facts pertaining to Count One.
Petitioner contends that he was misinformed regarding the statutory minimum, in that it was ten years rather than five years. It is true that he was informed there was a five year statutory minimum, and that the presentence report also refers to that statutory minimum. Para. 8. But the Sentencing Range was from 188 to 235 months under the agreed drug quantity and other sentencing factors, and he was so informed by able counsel, according to her undisputed affidavit. Since petitioner was not eligible for application of either a five year or a ten year statutory minimum, any misstatement in the plea agreement or in taking the plea was immaterial. The case is clearly different from one which he cites, where the trial judge referred to the statutory minimum as a statutory maximum, which could have induced a false hope pertinent to taking the plea. United States v. Gray, 63 F.3d 57 (1st Cir. 1995).
Gray is also unlike this case in that the defendant there sought to withdraw his plea before sentencing, which did not occur here. And even a failure to state a mandatory minimum does not affect a defendant's substantial rights where the guideline sentencing range outstripped the applicable mandatory minimum and defendant could not have reasonably hoped for a shorter sentence. United States v. McDonald, 121 F.3d 7 (1st Cir. 1997). Compare, United States v. Santo, 225 F.3d 92 (1st Cir. 2000), where the majority allowed a plea to be withdrawn on direct appeal when the mandatory minimum was erroneously stated as five years and the guideline range was also erroneously stated to be less than ten years, which was the applicable minimum sentence computed by the Probation Office.
For the foregoing reasons the motion for correction of the sentence is hereby DENIED.
Anticipating a request for a certificate of appealability, I conclude that petitioner's claim is legally frivolous and a certificate is DENIED, subject of course to reapplication in the Court of Appeals.
While petitioner sharply criticizes his counsel and Government counsel, his real quarrel is with The Sentencing Guidelines and the severity of federal statutes in drug cases.