Manley v. U.S.

• Decision Date: 30 November 1978
• Docket Number: No. 77-2046,77-2046
• Citation: 588 F.2d 79
• Parties: Howard Langston MANLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 79

588 F.2d 79

Howard Langston MANLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 77-2046.

United States Court of Appeals Fourth Circuit.

Argued March 10, 1978.

Decided Nov. 30, 1978.

James R. Acker and Thomas F. Loflin, III, Durham, N. C. (Loflin & Loflin, Durham, N. C., on brief), for appellant.

Herman E. Gaskins, Jr., Asst. U. S. Atty., Raleigh, N. C. (George M. Anderson, U. S. Atty., Raleigh, N. C., on brief), for appellee.

Before BRYAN, Senior Circuit Judge, and RUSSELL and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

In United States v. Curry and Manley (consolidated appeals), 512 F.2d 1299 (4th Cir. 1975), cert. den., 423 U.S. 832 (1975), this court reversed the conviction of Howard Langston Manley and remanded for a new trial on six counts of drug law violations ¹ because of improper proof of character evidence. The conviction of Manley's co-defendant, Drayton Curry, was affirmed but remanded for resentencing under our decision in United States v. Atkinson, 512 F.2d 1235, 1240 (4th Cir. 1975). Under Atkinson, when the only evidence of possession of a controlled substance with intent to distribute is the actual transfer of the substance, the offense of possession with intent to distribute (violation of 21 U.S.C. § 841(a)(1)) merges for sentencing purposes with the distribution offense (also 21 U.S.C. § 841(a)(1)). Accordingly, in Curry, 512 F.2d at 1305-06, we remanded for resentencing because consecutive sentences had been imposed for possession of heroin with intent to distribute and distribution when, as in Atkinson, evidence of the sale was relied upon to prove the intent to distribute.

Upon remand of Manley's case, he elected to enter a plea of Nolo contendere to all counts rather than face retrial. No plea bargain was contemplated. During the Rule 11 FRCrP inquiry, the trial court stated to Manley that upon conviction "(t)he maximum penalties which the court may impose for each offense is imprisonment not to exceed fifteen years, a fine not to exceed $25,000, or both, with a special parole term of at least 3 years on each count," which accurately reflects the punishment provided for in 21 U.S.C. § 841(b)(1)(A). The court then further explained that the maximum to which Manley might be sentenced "with 15 years and $25,000 in fines, with a special parole term of at least 3 years, according to my calculations would be 90 years. . . ." The court further stated that a maximum of $150,000 in fines might be assessed. During the proceedings, the prosecutor announced his agreement with the sentence evaluations of the district court, and Manley's counsel stated satisfaction that his client understood that nature of the charges and the consequences of the pleas. Consolidating all six counts for sentencing, the court accepted the pleas of Nolo contendere and imposed a sentence of twelve years' imprisonment with a three year special parole term.

Months later, Manley moved under 28 U.S.C. § 2255 for the vacation of his sentence on the ground that his pleas of Nolo contendere were invalid because the trial court had "misinformed Movant as to the range of allowable penalties. . . ." The district court denied Manley's motion, and this appeal followed. Both in the lower court and here the government conceded that under Atkinson and Curry the two counts of possession of heroin with which Manley was charged merged for sentencing with two of the three distribution counts, ² with the result that, under those cases, no more than sixty years, not ninety as the court and prosecuting attorney stated of record, could have been imposed on Manley's conviction of all six counts. Based on this admitted error, Manley argues that his Nolo Plea was entered involuntarily. The authorities in this circuit upon which he relies are Hammond v. United States, 528 F.2d 15 (4th Cir. 1975), and Pilkington v. United States, 315 F.2d 204 (4th Cir. 1963).

In Hammond, we directed a hearing on the claim of the accused that prior to the entry of his plea he had been advised by his attorney that the maximum possible sentence was ninety years when in fact the maximum was fifty-five years. Because of a plea bargain, the defendant there knew the maximum sentence were he to plead guilty, but, assuming the truth of his allegations, he did not know the possible sentence if he exercised his right to plead not guilty. The government would distinguish Hammond on the ground that the defendant and the government there had agreed to a plea bargain, while in Manley's case there was no bargain. The distinction, however, should not affect this case because the requirement that a guilty plea be voluntary and intelligent applies to all guilty pleas, not merely those in which a plea bargain has been struck. ³

Both Pilkington (where the maximum sentence was understated) and Hammond (where the maximum sentence was overstated) were specific applications of the general rule that the defendant contemplating a plea of guilty must have "a complete understanding of the possible sentence," Pilkington, 315 F.2d at 210 (applying former Rule 11); or, as stated in Hammond, 528 F.2d at 18, "in order to plead voluntarily, a defendant must know the direct consequences of his plea . . . ." This does not establish a per se rule that every error in sentence advice will permit the accused later to upset his guilty plea. For example, a plea of guilty "is not subject to later attack because the defendant's lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts . . . " indicate that the attorney's advice was incorrect. Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970). An additional example is that "(a) mistake of a few years in advice about the length of what would otherwise be a long term would not constitute ineffectiveness of counsel." Hammond v. United States, 528 F.2d 16, 18 (4th Cir. 1975). And we would note that, at least under former Rule 11 as it applied on the date of Manley's plea, the trial court's misstatement of the possible sentence is not irremediable error if the defendant has been correctly advised by his counsel. See Hammond, 528 F.2d at 17, 18; Pilkington, 315 F.2d at 209. To hold otherwise would be to reward " 'sandbagging' on the part of defense lawyers" who, while correctly...