U.S. v. White

• Decision Date: 23 September 2002
• Docket Number: No. 00-11392.,00-11392.
• Citation: 307 F.3d 336
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin WHITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

307 F.3d 336

UNITED STATES of America, Plaintiff-Appellee, v. Kevin WHITE, Defendant-Appellant.

No. 00-11392.

United States Court of Appeals, Fifth Circuit.

September 23, 2002.

Chad Eugene Meacham, Dallas, TX, for Plaintiff-Appellee.

Kevin White, Fort Worth, TX, pro se.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, DeMOSS and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Kevin White appeals the district court's denial of his 28 U.S.C. § 2255 petition challenging his 1996 cocaine conspiracy sentence. We affirm.

White argues that his attorney failed to challenge the quantity of drugs used in sentencing him and allowed him to be sentenced under a different statute than the one named in the indictment, thus constituting ineffective assistance of counsel. He further argues that this ineffective assistance justifies resentencing despite the otherwise valid waiver of appeal contained in his plea agreement. Because ineffective assistance of counsel claims only survive a waiver of appeal if they directly relate to the voluntariness of the waiver, and because White does not challenge the validity of his plea, we affirm.

Background

From late 1994 through 1995, Kevin White and twelve associates bought cocaine and cocaine base in Houston, concealed it in a spare tire, and then drove it to Wichita Falls where they converted most of the cocaine to cocaine base. The group would then sell the cocaine and cocaine base in Wichita Falls. This scheme came to an end when a grand jury returned a fourteen-count indictment against them on November 15, 1995. Count one charged White et al. with conspiracy to distribute cocaine base in excess of one kilogram, to possess cocaine base in excess of one kilogram with intent to distribute, and to possess cocaine with intent to distribute, all in violation of 21 U.S.C. § 846. Count One also parenthetically mentions 21 U.S.C. § 841(a)(1) to indicate the predicate crime of the conspiracy charge. The indictment did not expressly indicate the appropriate punishment range under 21 U.S.C. § 841(b), but count one includes quantities of cocaine base "over one kilogram" as part of the charged offense. Moreover, the overt acts alleged in count one include nearly 700 grams of cocaine base and over three kilograms of cocaine as well as other actions involving unnamed amounts of cocaine base. In addition to the count one conspiracy charge, White was also charged in counts four and five with possession of 35 grams and 32.5 grams of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). White was arrested the day after the indictment was returned.

On January 31, 1996, White signed a plea agreement under which he pleaded guilty to the conspiracy charge in return for the dismissal of the two possession with intent to distribute charges. The plea agreement described the referenced conspiracy charge as a violation of 21 U.S.C. § 846 based on "conspiracy to possess with intent to distribute cocaine base" without citing the predicate statute or the quantity of drugs. The agreement stated the penalty range was ten years to life imprisonment — the sentencing range applicable to offenses charged under 21 U.S.C. § 841(b)(1)(A). The plea agreement also contained a waiver of the right to appeal, expressly including a waiver of White's right to challenge his sentence under 28 U.S.C. § 2255. Only three potential arguments were excepted from the waiver: White could challenge a sentence in excess of the statutory maximum, an upward departure from the applicable guideline range, and the disparate treatment of cocaine and cocaine base in the statute. At the same time he signed the agreement, White signed the factual resume, which described the charged offense and alleged that White joined in transporting and selling cocaine base but makes no reference to any particular quantity of drugs.

The plea agreement was accepted by the district court at a hearing held on February 5, 1996. At the hearing, White agreed that he had read count one of the indictment, that he understood he was pleading guilty to that count, and that the applicable sentencing range was ten years to life. When the prosecution summarized the indictment and the factual resume, however, the prosecutor said that White had been charged with conspiracy "in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(B)(iii)." This was apparently the first and only time that 21 U.S.C. § 841(b)(1)(B) was mentioned in this case in connection with the conspiracy charge. White agreed with the facts as read aloud and pleaded guilty.

At the sentencing hearing on April 15, 1996, White's attorney challenged the presentence report because it connected more than 1.5 kilograms of cocaine base to White, thus raising the base offense level used in the sentencing guideline calculations. White first argued that the government had entrapped him to sell a higher quantity of drugs than he would have sold of his own volition, but the court thought otherwise and overruled this objection. White's attorney then argued that the drug quantity information came from co-conspirators and rendered the report unreliable. When questioned by the court, White conceded that he may have sold three-quarters to one kilogram of cocaine base but denied that the quantity was in excess of one and a half kilograms. The district court overruled the objection and found that the facts supported a reasonable finding that the quantity of drugs would be far in excess of one and a half kilograms. This relevant conduct (along with the deduction for acceptance of responsibility) led to a total offense level of 36, or a range of 188-235 months of incarceration. The court imposed the minimum sentence of 188 months, which fell within each of the statutory sentence ranges in 21 U.S.C. § 841(b)(1).

On direct appeal, White challenged both the disparity between the statutory sentences for cocaine and cocaine base and the court's decision to overrule his sentencing entrapment argument. This court, in an unpublished opinion, affirmed the first point based on circuit precedent and refused to address the second claim because of his waiver of appeal. See United States v. White, No. 96-10489, 116 F.3d 477 (5th Cir. April 17, 1997) (unpublished). White's petition for certiorari in the Supreme Court was denied on October 6, 1997.

On September 16, 1998, White filed pro se the instant section 2255 motion to vacate, set aside, or reduce his sentence based on the government's failure to provide DEA lab reports establishing the quantity of drugs. He claimed that this absence of proof constituted "new evidence" compelling a new sentencing hearing and also alleged that he received ineffective assistance of counsel because his attorney failed to point out this shortcoming. White's only response to the waiver of appeal was to claim that enforcement of the waiver would be a "manifest miscarriage of justice." In an opinion issued October 10, 2000, the district court found that the waiver language in the plea agreement was clear and unambiguous and that White had knowingly and voluntarily waived those rights. Because waivers of appeal are enforceable under those conditions, the district court denied White's section 2255 motion.

White then filed a notice of appeal and petition for certificate of appealability ("COA"). In his COA petition, White asserted for the first time that his attorney was deficient for allowing the government to convict him under 21 U.S.C. § 841(b)(1)(A) while both the plea agreement and factual resume allegedly required that he be sentenced under section 841(b)(1)(B). He added that his waiver could not be knowing and voluntary under those circumstances. The district court denied the COA on December 6, 2000, citing the prior findings of fact and holding that White had not made a substantial showing of the denial of a federal constitutional right.

White appealed the petition for COA to this court. In his brief in support of that appeal, White inexplicably connected the statute cited in counts four and five of the indictment ("21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii)") with the conspiracy charged in count one ("21 U.S.C. § 846" and, parenthetically, " § 841(a)(1)") and argued that he was charged under section 841(b)(1)(B) but sentenced under section 841(b)(1)(A). For this reason, White argued, his sentence was illegal and his attorney was incompetent for allowing the error. He also possibly argued that the same problem rendered his waiver of appeal involuntary and unknowing, although the argument was couched in terms of the ineffective assistance of counsel. In an order dated May 2, 2001, this court "liberally construed" White's brief as challenging whether his waiver of appeal was valid and granted him a COA on that issue.

Analysis

I. The Nature of White's Claim

Having granted a certificate of appealability on the validity of his waiver of appeal,¹ we must first make sense of White's ineffective assistance of counsel arguments. To begin, we note that a defendant can waive his right to file a section 2255 motion, although such a waiver might not apply to an ineffective assistance of counsel claim. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994). We also note that a defendant may always avoid a waiver on the limited grounds that the waiver of appeal itself was tainted by the ineffective assistance of counsel. United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995). White's ineffective assistance of counsel argument therefore might proceed down either of two avenues. On the one hand, he may argue that the ineffective assistance of his counsel rendered his waiver involuntary. On the other hand, he may argue that he received ineffective assistance of counsel at his sentencing and that all ineffective assistance of counsel arguments are immune from waiver.

Having sifted through the...