Montanye v. U.S.

• Decision Date: 05 June 1996
• Docket Number: No. 95-1837WM,95-1837WM
• Citation: 77 F.3d 226
• Parties: Herbert Ross MONTANYE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 226

77 F.3d 226

Herbert Ross MONTANYE, Appellant, v. UNITED STATES of America, Appellee.

No. 95-1837WM.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1995.

Decided Feb. 20, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied June

5, 1996. ^*

Lisa R. Rehard, Platte City, Missouri, argued, for appellant.

Charles E. Ambrose, Jr., Asst. U.S. Attorney, Kansas City, Missouri, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and FAGG, Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

Herbert Ross Montanye is serving two concurrent 30-year prison terms for conspiracy and attempt to manufacture methamphetamine. After our en banc Court affirmed his convictions and sentence, United States v. Montanye, 996 F.2d 190 (8th Cir.1993) ("Montanye II ") (vacating United States v. Montanye, 962 F.2d 1332 (8th Cir.1992) ("Montanye I ")), Mr. Montanye filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He claimed his lawyer was constitutionally ineffective for two reasons: He did not object to the finding in the Presentence Report ("PSR") that Mr. Montanye could reasonably have foreseen the production capacity of his co-conspirators' drug laboratory, and he did not request a lesser-included-offense instruction. The District Court ¹ denied the motion, and Mr. Montanye now appeals. We affirm.

I.

In February 1990, Mr. Montanye agreed to purchase and deliver sophisticated glassware to a clandestine drug laboratory in Kansas City, Missouri. See Montanye II, 996 F.2d at 191. This laboratory was the nerve center of an elaborate, ongoing drug manufacturing and distribution network headed by George Bruton, one of Mr. Montanye's co-conspirators. At Mr. Bruton's request, Mr. Montanye drove from Bountiful, Utah, to Boise, Idaho, where he bought, among other things, eight three-neck, 22-litre laboratory flasks. He then delivered the equipment to Bruton at an underground storage facility in Kansas City. In April, federal agents raided the lab, and found 55 grams of methamphetamine and enough ephedrine (a precursor chemical) to manufacture 37.5 kilograms more. ²

A jury convicted Mr. Montanye of conspiracy and attempt to manufacture methamphetamine. At sentencing, Mr. Montanye objected to the finding in his PSR that 37.5 kilograms of methamphetamine could have been produced with the precursor chemicals found at the lab. According to Mr. Montanye, the PSR assumed one production method, but the laboratory had actually used another. Mr. Montanye contended the laboratory could have produced only 12 kilograms of methamphetamine with the chemicals on hand. Therefore, Mr. Montanye argued, his base offense level should have reflected responsibility for 12, not 37.5, kilograms. ³ Mr. Montanye did not object, however, to the PSR's statement that the lab's production capacity was "reasonably foreseeable" under U.S.S.G. § 1B1.3. ⁴ The District Court adopted the PSR, including the finding that the lab's capacity was 37.5 kilograms. The Court added two points to Mr. Montanye's offense level for escape, and imposed two concurrent 30-year sentences, the minimum penalty under the Guidelines. ⁵

On appeal, a panel of this Court reversed Mr. Montanye's attempt conviction and remanded his conspiracy conviction for resentencing. Montanye I, 962 F.2d at 1346-47. Although Mr. Montanye had not appealed his sentence, the panel concluded that a 30-year prison stint for delivering lab glassware was a "gross miscarriage of justice," sufficiently offensive to suspend Federal Rule of Appellate Procedure 28(a)'s usual requirements. Id. at 1347. In the panel's view, when Mr. Montanye agreed to deliver the flasks, he "did not know how much or how little methamphetamine his co-conspirators would produce." Ibid. Relying on United States v. North, 900 F.2d 131 (8th Cir.1990), and United States v. Edwards, 945 F.2d 1387 (7th Cir.1991), cert. denied, 503 U.S. 973, 112 S.Ct. 1590, 118 L.Ed.2d 308 (1992), the panel decided that the laboratory's capacity and output were not "reasonably foreseeable" to Mr. Montanye, and therefore the District Court did not have enough evidence to hold Mr. Montanye accountable for all 37.5 kilograms of manufacturable methamphetamine. Montanye I, 962 F.2d at 1347.

Our Court reheard the case en banc, and affirmed both the attempt conviction ⁶ and the 30-year sentences. Montanye II, 996 F.2d 190. The en banc Court observed that, under Fed.R.Crim.P. 52(b), a court of appeals may not consider a question not raised by the defendant at trial unless (1) the district court deviated from a legal rule; (2) the error is plain; and (3) the error affected the defendant's substantial rights. Id. at 192. The Court agreed with Mr. Montanye that "when a conspiracy defendant objects that the quantity of drugs attributed to the defendant in the PSR [is] not reasonably foreseeable to the defendant, the district court must make a foreseeability finding about the objecting defendant." Ibid. But, the Court observed, when a defendant fails or decides not to object to the PSR's foreseeability finding, a trial court may simply rely on the Report. Ibid. (citations omitted). This is what the District Court did in Mr. Montanye's case and therefore, the en banc Court found, it did not deviate from a legal rule. ⁷

What's more, the Court continued, Mr. Montanye's claim that the record did not support a foreseeability finding was, even if true, no help to him because "[l]ike the district court's obligation to make a finding, the Government's obligation to present evidence in support of a PSR's factual statements only arises for the facts the defendant disputes." Id. at 193. Third, the en banc Court stated that even if the District Court had committed "plain error," the mistake did not affect Mr. Montanye's sentence. Ibid. Mr. Montanye therefore failed to meet Rule 52's three requirements. Even if he had met them, the Court added, it "would not exercise [its] remedial discretion in this case." Mr. Montanye had "ample opportunity" to challenge the PSR's foreseeability finding, but chose instead to dispute the lab's production capacity. Given this choice, the Court reasoned, there is nothing unfair about leaving Mr. Montanye with the sentence that resulted from it. Ibid.

Heeding the dissenting judges' suggestion in Montanye II, ⁸ Mr. Montanye filed a § 2255 motion to vacate, set aside, or correct his sentence. He claimed that his lawyer was unconstitutionally ineffective because he failed to object to the PSR's foreseeability finding. ⁹ The District Court denied the motion, noting that "it would be difficult to fault counsel in a constitutional sense for not arguing that a nominal output ... must be used in assessing [the] sentencing responsibility of the glassware supplier" (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The Court also observed that Mr. Montanye had not "offer[ed] to show that the manufacturing capacity used here was atypical and thus unforeseeable." Mr. Montanye now appeals, and we affirm the District Court's judgment.

II.

We note at the outset that, given the en banc Court's Montanye II opinion, we need not decide whether Mr. Montanye's undeniably harsh sentence ¹⁰ is a "gross miscarriage of justice," see Montanye I, 962 F.2d at 1347. The only issue before us now is whether Mr. Montanye was unconstitutionally deprived of effective assistance of counsel at sentencing. We think he was not.

A.

The Sixth Amendment right to counsel both strengthens and protects our fundamental due-process right to fair trials. See Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2062-63, 80 L.Ed.2d 674 (1984). Our Constitution "recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results." Id. at 685, 104 S.Ct. at 2063. In other words, the right to counsel has a purpose; an accused's lawyer has a constitutional job to do. Thus, "the right to counsel is the right to effective assistance of counsel." Id. at 686, 104 S.Ct. at 2063 (citation omitted). A less-demanding interpretation of the Sixth Amendment "would permit a serious risk of injustice to infect criminal trials." Driscoll v. Delo, 71 F.3d 701, 706 (8th Cir.1995) (citation omitted).

Strickland 's familiar framework for analyzing ineffective-assistance claims reflects the link between the right to counsel and "the ability of the adversarial system to produce just results." A defendant "must establish that counsel's performance fell below professional standards and that ineffective performance prejudiced his defense." Thompson v. United States, 61 F.3d 586, 587 (8th Cir.1995); United States v. Williams, 994 F.2d 1287, 1291 (8th Cir.1993) (requiring "unreasonably unprofessional" conduct causing "actual prejudice"). He must prove more than a mistake by his lawyer; the mistake, if there is one, must "undermine[ ] our confidence in the outcome of the proceeding." Thompson, 61 F.3d at 587. This is a hard sell; our confidence is not easily undermined. We presume attorneys provide effective assistance, and refuse to second-guess strategic decisions or exploit the benefits of hindsight. Ibid.

B.

Mr. Montanye insists that his lawyer should have argued that the lab's productive capacity was not reasonably foreseeable, instead of contesting only the capacity itself. Even if Mr. Montanye is right, he must still prove that he was prejudiced by his lawyer's mistake. ¹¹ In ineffective-assistance cases, if the defendant does not prove prejudice, "[w]e need not address the reasonableness of the attorney's behavior...." Williams, 994 F.2d at 1291 (regardless of counsel's defense strategy, incriminating evidence would have been admitted into evidence). Because our primary concern is our confidence in the verdict, "[a]n error by counsel, even if professionally unreasonable, does not...