Jones v. U.S.

• Decision Date: 30 November 1998
• Docket Number: No. 97-5202,97-5202
• Citation: 161 F.3d 397
• Parties: Ronald JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 397

161 F.3d 397

Ronald JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 97-5202.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 22, 1998.

Decided Nov. 30, 1998.

Kevin M. Schad (argued and briefed), Schad, Buda & Cook, Cincinnati, OH, for Petitioner-Appellant.

Stuart J. Canale, Asst. U.S. Attorney (argued), Paul M. O'Brien, Asst. U.S. Attorney (briefed), Office of U.S. Attorney, Memphis, TN, for Respondent-Appellee.

Before: KENNEDY and COLE, Circuit Judges; RUSSELL, District Judge ^*

OPINION

COLE, Circuit Judge.

Ronald Jones appeals the district court's dismissal of his motion to vacate his conviction or modify his sentence pursuant to 28 U.S.C. § 2255. On appeal Jones raises three issues. First, he contends that the district court erred in finding that he failed to establish that his lawyer, William Massey, provided ineffective assistance of counsel. Second, Jones claims that the magistrate judge committed reversible error by exceeding the scope of the district court's order to determine whether Jones was prejudiced by Massey's alleged deficient performance. Finally, Jones contends that the district court erred by concluding that a recent amendment to U.S.S.G. § 3B1.1 did not require a new sentencing hearing.

For the following reasons, we AFFIRM in part and REVERSE in part, and REMAND for further proceedings in accordance with this opinion.

BACKGROUND

On or about February 20, 1991, Jones was arrested and charged with attempted possession with the intent to distribute six kilograms of cocaine, a controlled substance. ¹ The arrest was the result of a "drug deal" orchestrated by law enforcement officers. The officers gained the cooperation of Robert and Mel Woods, cousins from whom Jones had made prior drug purchases. Mel was working as an informant for DEA Special Agent James Akagi. Through the Woods' cooperation, the officers videotaped Jones's purchase of what he believed to be cocaine. Jones was arrested shortly afterwards.

Following his arrest, Jones's mother retained William Massey to defend him. Based on conversations with Jones and a review of Jones's criminal history, Massey concluded that the only possible defense Jones could raise was entrapment. Because Jones's criminal history did not reflect any prior felony convictions, Massey believed that he could prove that Jones lacked predisposition to commit the offense. Considering that their defense hinged on Jones's lacking a predisposition to commit drug offenses, Massey asked Jones whether he had committed prior offenses or engaged in conduct that could affect their entrapment claim. Though it is his practice to do so, Massey does not specifically remember advising Jones that this type of relevant conduct would also be an issue at sentencing.

Considering Jones's prior criminal history--no convictions, Massey assured him that if he went to trial there was little chance that the court would impose a sentence exceeding the statutory minimum of ten years pursuant to 21 U.S.C. § 841(b)(1)(A). At this time, Massey was not aware of the government's evidence that Jones had made prior purchases from the government informants involved in the current undercover operation. The government offered a plea agreement by which Jones would plead guilty and receive a sentence of five years imprisonment. Jones rejected the plea offer, presumably based on his belief that he was subject--at most--to ten years' imprisonment. Just before trial, the Assistant United States Attorney, Mr. Folkes, advised Massey that the government had evidence that Jones was involved in other cocaine sales. According to Massey, he asked Jones about the government's claim and advised him that if the government indeed had evidence of prior drug sales it would quash their entrapment defense. Massey could not remember, however, whether he warned Jones that prior drug purchases that did not result in convictions could also increase his potential sentence. In response to Massey's warning, Jones replied: "It's my word against theirs."

At trial, Jones denied involvement in any prior drug sales. According to Jones's testimony, the current charge was the first time he dealt in cocaine, and he only did so at the insistence and nagging of the police informants. The jury apparently did not believe Jones and convicted him. Rather than the ten-year sentence Jones believed to be the maximum, the district court sentenced Jones to 324 months, or twenty-seven years, of imprisonment, taking into account Jones's relevant conduct.

In addition, the district court applied several enhancements under the guidelines to arrive at Jones's sentence. Among the enhancements it applied was an increase of two levels pursuant to U.S.S.G. § 3B1.1. This guideline provision requires a sentencing court to enhance a sentence two levels if the court finds that the accused served in a managerial or supervisory role during the criminal activity. ² The court concluded that because Jones had a "high-level" position in the criminal enterprise as evidenced by his financial means of procuring large quantities of cocaine, he qualified for an enhancement under the provision.

Jones appealed his conviction and sentence, and this court affirmed. Jones then filed a § 2255 motion in the district court in which he raised several claims. First, Jones asserted that Massey had rendered ineffective assistance of counsel when he failed to advise Jones of the effect that relevant conduct would have on Jones's sentence. Specifically, Jones claimed that when he had to decide whether to accept a plea offer for five years imprisonment, Massey failed to advise him that there was a risk that relevant conduct could increase his sentence dramatically. Second, Jones claimed that intervening changes in the law permit him to raise several sentencing errors in his § 2255 motion. Finally, Jones claimed that because he forfeited property seized as a result of his arrest, his subsequent criminal prosecution for the same offense violated the Double Jeopardy Clause.

The district court concluded that Jones's claims of sentencing error did not rise to the level of constitutional significance required for a § 2255 motion or were precluded because they were fully addressed on direct appeal. Moreover, the court concluded that those claims that Jones did not raise on direct appeal were procedurally barred. The court also found that petitioner's claim of double jeopardy was without merit, considering the Supreme Court's holding in United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996).

The district court did, however, order an evidentiary hearing on Jones's ineffective assistance of counsel claim. Specifically, the order instructed the magistrate judge to conduct a fact-finding inquiry into whether Massey's performance actually fell below an objective standard of reasonableness, the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ³ the standard for evaluating ineffective assistance of counsel claims. The district court adopted the magistrate judge's finding that not only did Jones's claim fail because Massey's performance did not fall below an objective standard of reasonableness, it also failed because Jones failed to establish prejudice by showing that he would have accepted the plea offer of five years but for the alleged deficiency.

On appeal, Jones raises three issues. First, he contends that the district court erred in finding that he failed to establish that Massey provided ineffective assistance of counsel. Second, he contends that the magistrate judge committed reversible error by exceeding the scope of the district court's order regarding the evidentiary hearing. Finally, Jones argues that the district court erred in concluding that a recent amendment to U.S.S.G. § 3B1.1 did not require a new sentencing hearing with respect to the district court's application of that provision to his sentence.

I. Ineffective Assistance of Counsel

Jones claims that he received ineffective assistance of counsel because Massey failed to advise him of all the possible consequences of proceeding to trial. Specifically, he claims that Massey did not advise him that the court may consider relevant conduct to enhance his sentence and that relevant conduct under the guidelines includes prior drug deals irrespective of convictions for those deals. Moreover, Jones claims that Massey rejected the five-year plea offer before consulting him, and advised Jones that this was a good case to argue because Jones had no prior convictions and the substance he actually purchased was not cocaine. Despite Jones's testimony that Massey rejected the five-year plea offer without consulting him, the magistrate judge concluded otherwise, finding that Massey told Jones about the plea offer, advised him that it was a good deal, and that Jones rejected the offer in hopes of a favorable outcome at trial. Jones apparently took his chances between an acquittal and the statutory minimum sentence of ten years, and lost.

The district court found that Massey's performance in advising Jones of the risks involved with a trial as opposed to accepting the plea offer did not fall below an objective standard of reasonableness. We agree with this conclusion. The facts suggest that Massey adequately advised Jones with respect to the plea offer and the potential sentence that he would receive based on the information that Jones gave him. If Jones had no prior offenses, his sentence most likely would not have exceeded ten years. Crediting Massey's testimony over Jones's, the magistrate judge concluded that the evidence did not support a finding that Massey's performance fell below the objective standard of professionalism. We agree that the evidence supports this conclusion. Though Massey could have been more explicit in his advice to Jones, the record does not suggest that his performance...