Jones v. U.S.

• Decision Date: 28 May 1999
• Docket Number: No. 97-5202,97-5202
• Citation: 178 F.3d 790
• Parties: Ronald D. JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

178 F.3d 790

Ronald D. 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 May 28, 1999.

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

Stuart J. Canale (argued), Paul M. O'Brien (briefed), Office of the U.S. Attorney, Memphis, TN, Joseph C. Wyderko, Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Respondent-Appellee.

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

AMENDED OPINION

COLE, Circuit Judge.

This case first came before this panel on September 22, 1998, and was the subject of a prior opinion (Jones v. United States, 161 F.3d 397 (6th Cir.1998)), in which we remanded the case to the district court for further proceedings. After we filed the opinion, the government filed a petition for rehearing en banc. Upon review of the government's petition, we vacate Section II, Part C, of our prior opinion and amend that portion of the opinion. We now affirm the decision of the district court. Our amended opinion follows.

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 by 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 the judgment of the district court.

I.

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 entrapment was the only viable defense available to Jones. 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--conduct that is not formally charged or that did not lead to a conviction--may be used by the court in determining a defendant's applicable sentencing range.

Considering Jones's absence of prior 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). Massey was not aware at the time, however, that the government had evidence that Jones had made prior purchases from government informants involved in the current undercover operation. The government offered a plea agreement pursuant to 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 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 such evidence 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 potentially increase his 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 urging 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 twenty-seven years' imprisonment, taking into account as relevant conduct the amount of drugs Jones purchased from the Woods brothers on prior occasions.

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. ² 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. 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, including the enhancement for an aggravating role in the offense, and this court affirmed. Jones then filed a motion to vacate his conviction or modify his sentence pursuant to 28 U.S.C. § 2255. Jones asserted first 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 his relevant conduct could increase his sentence dramatically. Second, Jones claimed that intervening changes in the law permitted him to raise several sentencing errors in his 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 motion seeking post-conviction relief pursuant to § 2255 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 order, however, 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 by 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 by 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.

II.

A. 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 district court could consider relevant conduct to enhance his sentence and that relevant conduct under the guidelines includes prior illegal drug activities irrespective of convictions for those activities. 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. Jones claims that Massey never stated that prior conduct could affect his sentence. 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 an acquittal at trial.

The district court found that Massey's performance in advising Jones of the risks...