Hunter v. U.S., No. 96-4285

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtRYAN, J., delivered the opinion of the court, in the court, in which NATHANIEL R. JONES, J., joined. MOORE
Citation160 F.3d 1109
Docket NumberNo. 96-4285
Decision Date19 November 1998
PartiesBrian K. HUNTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Page 1109

160 F.3d 1109
Brian K. HUNTER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 96-4285.
United States Court of Appeals,
Sixth Circuit.
Argued July 30, 1998.
Decided Nov. 19, 1998.

Page 1110

Philip J. Korey (argued and briefed), Cleveland, Ohio, for Petitioner-Appellant. Linda M. Betzer (argued and briefed), Office of the U.S. Attorney, Cleveland, Ohio, for Respondent-Appellee.

Before: JONES, RYAN, and MOORE, Circuit Judges.

RYAN, J., delivered the opinion of the court, in the court, in which NATHANIEL R. JONES, J., joined. MOORE, J. (p. 1116), delivered a separate concurring opinion.

OPINION

RYAN, Circuit Judge.

Brian K. Hunter filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, alleging that he had received ineffective assistance of counsel in connection with his plea of guilty to conspiracy to possess cocaine base with the intent to distribute, in violation of 21 U.S.C. §§ 841, 846. The plea agreement he signed provided that he waived the right to appeal his sentence.

The district court granted Hunter's motion in part because the court recognized that it had failed to make explicit findings of fact regarding the amount of cocaine base attributable to Hunter. The newly imposed sentence was the same as the first--87 months--and Hunter filed this timely appeal. We consider first whether the appeal-waiver provision in Hunter's plea agreement forecloses him from bringing this appeal, and conclude that it does not. We nonetheless shall affirm the district court's judgment, finding Hunter's substantive claims to be lacking in merit.

I.

In 1993, Brian Hunter was a member of a Youngstown, Ohio, gang known as the Ready Rock Boys. The raison d'etre of the Ready Rock Boys was the processing and distribution of cocaine base. Hunter's role as a Ready Rock Boy was to distribute cocaine. One day, he sold cocaine to a government informant.

Hunter, along with ten others, was named in a 12-count indictment handed up in January 1994. Hunter himself was named in two counts. Count 1 charged Hunter with conspiring, between April 1993 until October 1993, to knowingly and intentionally possess cocaine and cocaine base, with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. The sole overt act attributed to Hunter was the sale of 13.1 grams of cocaine base on August 20, 1993. Hunter was also named in

Page 1111

Count 11 for knowingly and intentionally distributing, and possessing with intent to distribute, this same 13.1 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).

Hunter originally pleaded not guilty, but in August 1995 changed his plea to guilty to Count 1 pursuant to a Rule 11 plea agreement; the government agreed to dismiss Count 11. The agreement specified that the parties had agreed upon a base offense level of "29 because the amount of cocaine base involved in the relevant Conduct [sic] of Brian K. Hunter is approximately 35 grams, however, the exact quantity, either above or below 35 grams, is impossible to determine." This offense level was apparently a compromise by the government, since the guidelines provide for a level 30 when the amount in question is "[a]t least 35 G but less than 50 G of Cocaine Base." U.S.S.G. § 2D1.1(c)(5). The government also agreed to recommend a two-level reduction for acceptance of responsibility. The parties specified "that a sentence of 87 months [was] appropriate." Finally, Hunter "expressly waive[d] his right to appeal his sentence on any ground."

The district court conducted a fairly brief plea hearing. Although the AUSA referred to the appeal-waiver provision in the plea agreement while addressing the district court, the court did not mention the provision to Hunter, and did not explicitly ascertain that Hunter understood he was foregoing his appeal rights. With respect to the amount of cocaine attributable to Hunter, the AUSA stated that in addition to the 13.1 grams Hunter sold to the CI, "during the course of the conspiracy Mr. Hunter sold other cocaine to other persons which the Government is aware of. Therefore, we have agreed that to our best estimate the amount of cocaine involved is 35 grams." The defendant affirmed that he had no disagreement with this statement.

The presentence report stated that Hunter's total offense level was 27, and his criminal history category was III. The total offense level was arrived at by deducting two points for acceptance of responsibility from a base offense level of 29, as stipulated in the plea agreement. The criminal history category consisted of three points, one for each of three separate crimes, and an additional two points because Hunter had committed the instant offense while on probation for a June 1992 conviction for "frequenting places were [sic] drugs are possessed," which probationary period expired in June 1993. The resulting range was 87 to 108 months.

At the sentencing hearing, Hunter objected to being held accountable for 35 grams:

[DEFENSE COUNSEL]: Your Honor, I explained before, certainly at the time of the plea, the criminal history base levels, and the plea was obviously explained in full regarding the threshold of 35 grams which was agreed on in this case to arrive at the sentence, agreed upon sentence that we arrived at.

Now question is being made of me regarding that. I think I have explained it in every possible way, and still I am getting inquiry as to that 35 grams.

I don't know what else to tell Mr. Hunter. Perhaps the Court could inquire, we can clear it up, if there is a question about it; but I am completely satisfied that it's been adequately explained, both prior to the plea and subsequent to the plea.

THE COURT: Well, I am giving him an opportunity to say anything he wishes to say at this point. That's what I indicated to him.

THE DEFENDANT: I am asking about she gave me 35 grams of cocaine; below 35 grams.... It said above 35 grams. I didn't have no 35 grams.

THE COURT: It says that you are only held accountable for being in possession of an amount of cocaine above or below 35 grams of cocaine base instead of the full amount of the drug conspiracy totaling 175.2 grams.

THE DEFENDANT: Yes, sir.

THE COURT: You got it now?

THE DEFENDANT: Yes, sir.

THE COURT: Okay.

The AUSA then stated:

Your Honor, so the record is clear, the plea agreement in this case specifies relevant conduct at approximately 35 grams because the government believed that its proof would show that this defendant over the course of the conspiracy had dealt in approximately 35 grams, and the government

Page 1112

was unsure that its proof, should it go to trial, would be able to attribute the entire 175 grams to this defendant within the context of the relevant conduct ...; therefore, that agreement was entered into.

Hunter was sentenced at the low end of the range, to 87 months of imprisonment, as was recommended in the plea agreement.

Hunter did not file a direct appeal, but in June 1995, did file a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Hunter presented four grounds for relief: (1) "Counsel failed to appeal Petitioner's sentence"; (2) "Counsel failed to object to the quantity of drugs used to sentence Petitioner"; and "Counsel failed to correct the errors in the presentence report" with regard to (3) acceptance of responsibility and (4) calculation of criminal history points.

A year later, the district court denied Hunter's petition. It concluded that Hunter's trial counsel had not been ineffective for failing to file a notice of appeal, given that Hunter had explicitly waived his right to appeal in the plea agreement. Next, it rejected Hunter's argument that, because he was no longer on probation at the time of the August 1993 overt act identified in the indictment, he should not have received two points for committing the instant federal offense while on one year of probation for a June 1992 state conviction; the court reasoned that the conspiracy to which Hunter pleaded guilty was alleged to have begun in April 1993, which was within the period of his probation.

Next, the court rejected the argument that the attorney was ineffective for failing to seek a three-point reduction for "super" acceptance of responsibility. The court concluded that Hunter did not qualify for a three-point reduction "because he neither provided complete information to the government nor timely pleaded guilty to the indictment."

Finally, the court concluded that Hunter's attorney had not been ineffective for failing to object to the attribution of 35 grams of cocaine in the plea agreement. It noted the government's representation during sentencing that it could prove that Hunter had dealt in approximately 35 grams, and the government's corresponding belief that it might not be able to attribute the entire 175 grams of the conspiracy to Hunter. The court acknowledged, however, that it had failed to make any explicit findings of fact with respect to amount, and therefore ordered Hunter to be returned for resentencing.

It then held a hearing in August 1996, and made findings of fact, in pertinent part, as follows:

1. During the evidentiary hearing, the Court asked the government what evidence it would present, had the case gone to trial, to show that Hunter was responsible for approximately 35 grams of cocaine base as his part in the conspiracy. The government stated that on August 20, 1993, a controlled purchase of cocaine base took place between Hunter and a confidential informant (CI) working with Federal and State law enforcement officers.

2. On the date of purchase, the CI went to Hunter's house at 2913 Idlewood where Hunter's...

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88 practice notes
  • Greer v. United States, No. 16-4755
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 12, 2019
    ...any other argument, the government can forfeit a waiver argument by failing to raise it in a timely fashion." Hunter v. United States , 160 F.3d 1109, 1113 (6th Cir. 1998) (citation omitted); see also Olano , 507 U.S. at 733–34, 113 S.Ct. 1770 (clarifying the distinction between waiver and ......
  • United States v. Ford, Nos. 11–1917
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 5, 2014
    ...However, the government can lose its right to assert waiver “by failing to raise it in a timely fashion.” Hunter v. United States, 160 F.3d 1109, 1113 (6th Cir.1998). Because the government does not assert that Henry is precluded from bringing this appeal, we need not determine if this issu......
  • United States v. Sherrill, No. 19-5815
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 24, 2020
    ...the government can forfeit a waiver argument by failing to raise it in a timely fashion" (quoting 972 F.3d 763 Hunter v. United States , 160 F.3d 1109, 1113 (6th Cir. 1998) )). In any event, Defendants' argument fails even under the plain error standard. We turn now to its merits. Federal R......
  • United States v. Reed, No. 20-5631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 1, 2021
    ...based on his stipulation in the plea agreement to the contrary and the plea's appellate waiver); see also Hunter v. United States , 160 F.3d 1109, 1113 (6th Cir. 1998) ("But, as with any other argument, the government can forfeit a waiver argument by failing to raise it in a timely fashion.......
  • Request a trial to view additional results
88 cases
  • Greer v. United States, No. 16-4755
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 12, 2019
    ...any other argument, the government can forfeit a waiver argument by failing to raise it in a timely fashion." Hunter v. United States , 160 F.3d 1109, 1113 (6th Cir. 1998) (citation omitted); see also Olano , 507 U.S. at 733–34, 113 S.Ct. 1770 (clarifying the distinction between waiver and ......
  • United States v. Ford, Nos. 11–1917
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 5, 2014
    ...However, the government can lose its right to assert waiver “by failing to raise it in a timely fashion.” Hunter v. United States, 160 F.3d 1109, 1113 (6th Cir.1998). Because the government does not assert that Henry is precluded from bringing this appeal, we need not determine if this issu......
  • United States v. Sherrill, No. 19-5815
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 24, 2020
    ...the government can forfeit a waiver argument by failing to raise it in a timely fashion" (quoting 972 F.3d 763 Hunter v. United States , 160 F.3d 1109, 1113 (6th Cir. 1998) )). In any event, Defendants' argument fails even under the plain error standard. We turn now to its merits. Federal R......
  • United States v. Reed, No. 20-5631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 1, 2021
    ...based on his stipulation in the plea agreement to the contrary and the plea's appellate waiver); see also Hunter v. United States , 160 F.3d 1109, 1113 (6th Cir. 1998) ("But, as with any other argument, the government can forfeit a waiver argument by failing to raise it in a timely fashion.......
  • Request a trial to view additional results

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