Opinion
CIVIL ACTION NO. 3:01-CV-2316-G, CRIMINAL ACTION NO. 3:00-CR-309(07)-G
October 7, 2002
MEMORANDUM ORDER
On December 21, 2001, the defendant Leonada Semaj Wilburn ("Wilburn") filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence by a person in federal custody. The United States filed a response on May 3, 2002. The time for reply having expired, the motion is now ripe for decision.
I. BACKGROUND
On August 1, 2000, Wilburn was accused, along with six codefendants, of conspiring to violate the controlled substance laws of the United States. Wilburn eventually reached a plea bargain with the government under which he pleaded guilty, on December 5, 2000, to a superseding information charging him with the crime of using a telephone to cause or facilitate the commission of a drug crime, namely, the delivery of cocaine. A written plea agreement was submitted to and approved by the court, which contained the following provision:
3. WILBURN expressly waives the right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742, and WILBURN further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255. WILBURN however, reserves the right to appeal the following: (a) any punishment imposed in excess of a statutory maximum; (b) any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court; (c) arithmetic errors in the guidelines calculations; and (d) a claim of ineffective assistance of counsel.
Plea Agreement, filed December 5, 2000, ¶ 3.
In accordance with the Sentencing Reform Act of 1984, Wilburn was sentenced on February 13, 2001 to 48 months imprisonment followed by a one-year term of supervised release. Judgment in a Criminal Case, filed February 14, 2001, at 2-3. He did not appeal.
II. ISSUES
In this § 2255 motion, Wilburn raises two issues:
(1) his total offense level should have been calculated to be 20, rather than 23, so that his guideline range would have been 41-51 months; and
(2) he received ineffective assistance of counsel at sentencing.
Motion Under 28 U.S.C. § 2255, To Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion"), filed December 21, 2001, at 7-8; Separate Memorandum of Law in Support of Relief ("Memorandum"), filed December 21, 2001, at 2-3.
III. ANALYSIS
This § 2255 motion is controlled by United States v. White, No. 00-11392,___ F.3d___, 2002 WL 31106976 (5th Cir. September 23, 2002). In White, the defendant pleaded guilty to conspiracy to (1) distribute and (2) possess with intent to distribute cocaine and cocaine base under a plea agreement in which he waived his right to appeal or to move for relief under § 2255, except on three specified grounds. Id. at *1. Despite White's challenge to the quantity of drugs attributed to him by the presentence report, he received a custody sentence of 188 months. Id. *2. His direct appeal resulted in an affirmance of the district court's judgment, and his petition for a writ of certiorari was denied. Id. Thereafter, White filed a pro se motion under § 2255 to vacate his sentence on the basis that the government failed to provide DEA lab reports establishing the quantity of drugs. Id. The Court of Appeals held that the defendant had waived his right to relief under § 2255 by virtue of the waiver provision in the plea agreement. Id. at *8. Although White alleged ineffective assistance of counsel in his motion, the complaints about his lawyer related only to defendant's guilty plea or the waiver clause in the defendant's plea agreement. Id. at *3*8.
So it is in this case. Wilburn argues that his counsel was ineffective at sentencing in not challenging the calculation of the guidelines — based on drug quantity — in the presentence report, thus subjecting him to a longer custody sentence than he otherwise would have received. Motion at 7-8; Memorandum at 2-4. He does not contend, however, that this ineffective assistance of counsel caused his earlier decision to plead guilty — and to waive his appeal rights — to be either unknowing or involuntary. Accordingly, the provision in Wilburn's plea agreement waiving § 2255 relief is enforcible. White, ___ F.3d___, 2002 WL 31106976 at *1, *4 *7*8. That provision bars relief on this motion.
IV. CONCLUSION
For the reasons stated, Wilburn's motion for relief under § 2255 is DENIED. SO ORDERED.