Short v. U.S.

• Citation: 471 F.3d 686
• Decision Date: 28 December 2006
• Docket Number: No. 05-6520.,05-6520.
• Parties: Ricky Wayne SHORT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

471 F.3d 686

Ricky Wayne SHORT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 05-6520.

United States Court of Appeals, Sixth Circuit.

Argued: October 31, 2006.

Decided and Filed: December 28, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Alan G. Kimbrell, Grover, Missouri, for Appellant. S. Delk Kennedy, Jr., Assistant United States Attorney, Nashville, Tennessee, for Appellee.

ON BRIEF:

Alan G. Kimbrell, Grover, Missouri, for Appellant. S. Delk Kennedy, Jr., Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before SILER, GILMAN, and GRIFFIN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Ricky Wayne Short, who pled guilty to a federal drug charge and is currently incarcerated, appeals the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. His attorney negotiated a plea agreement pursuant to which Short's indictment was amended without further action by the grand jury. Short contends that this amounted to constitutionally ineffective assistance of counsel with respect to both the amendment and the plea agreement. The amendment increased the quantity of cocaine alleged in Short's indictment from 500 grams to 5000 grams. Short also argues that the amendment deprived the district court of jurisdiction and gave rise to other constitutional violations.

In response, the government argues that Short's attorney rendered effective assistance with regard to the plea agreement because Short willingly accepted responsibility for the amended drug charge. The government also asserts that the amendment did not deprive the district court of jurisdiction, and that Short's remaining claims are barred by his plea agreement in which he waived the right to collateral review. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

In August of 2000, law-enforcement officers associated with the Lawrence County (Tennessee) Sheriff's Department executed a search warrant at the residence of Angela Darlene Williams. Present at the home were Williams and her ex-husband Ricky Wayne Short, both of whom were found smoking cocaine at the kitchen table. In the course of the ensuing search, the officers uncovered approximately four kilograms of cocaine in the master bedroom and approximately one kilogram of cocaine on the kitchen floor, along with other drug paraphernalia. A subsequent investigation revealed that, prior to the search, Williams and Charles Lee Furk had traveled to Texas to purchase the cocaine using $115,000 in cash provided by Short. After purchasing the drugs in Texas, Furk and Williams returned with the cocaine to Williams's residence in Tennessee.

Both Williams and Short were arrested at the scene. The report filed by the arresting officers described the quantity of cocaine found in the residence as "approximately 11 pounds," an amount roughly equal to 5 kilograms.

B. Procedural background

A federal grand jury issued a four-count indictment in October of 2000, charging that (1) in July and August of 2000, both Short and Furk conspired to distribute "five hundred (500) grams" or more of cocaine; (2) on August 2, 2000, both Short and Furk possessed "five hundred (500) grams" or more of cocaine with the intent to distribute; (3) on October 12, 2000, Furk possessed "a quantity" of cocaine with the intent to distribute; and (4) both Short and Furk, if convicted, would be subject to forfeiture of any real or personal property involved in the commission of the offenses.

Following Short's arrest, his attorney entered into plea negotiations with the government, ultimately arriving at a plea agreement. At Short's change-of-plea hearing before the district court in February of 2001, the government filed a motion to amend Count One of the indictment, the conspiracy count. The motion sought to change Count One from charging Short with conspiring to possess "five hundred (500) grams" or more of cocaine to conspiring to possess "five thousand (5000) grams" or more of cocaine. The text of the motion explained that this amendment was the product of "conversations between counsel" and was "appropriate and necessary to accomplish the negotiated plea agreement to be presented to [the district court]." Only the Assistant U.S. Attorney signed the motion. But when the court asked whether the defense had any objections to the amendment, Short's counsel stated that he did not. The court then orally granted the motion to amend the indictment and issued a written order to that effect later in the day. Following the hearing, however, the court commented to counsel for the government that amending the indictment without seeking reindictment through the grand jury was an atypical procedure.

Under the terms of Short's plea agreement that he signed at the hearing in open court, Short pled guilty to Count One as amended and agreed to certain property forfeitures. He also waived any right to direct or collateral review of his conviction or sentence apart from claims of ineffective assistance of counsel or prosecutorial misconduct. In exchange, the government agreed to drop Counts Two and Three of the indictment and to recommend that Short (1) receive a three-level sentencing reduction due to his acceptance of responsibility, (2) receive care at a medical facility for an existing shoulder injury, (3) participate in a drug-treatment program, and (4) be incarcerated in a facility near his home.

Before accepting Short's guilty plea, the district court explained to him all of the charges in the indictment, including the amended 5000 gram quantity charged under Count One. The court further inquired as to whether Short was competent to enter a plea and whether he was aware of his right to plead not guilty and proceed to trial. After receiving satisfactory answers, the court explained that life in prison was the maximum sentence to which Short could be subject, and Short responded that he understood. The court later asked whether Short was completely satisfied with his attorney's performance, and he responded that he was. Having explained the charges and established Short's competency, the court asked Short how he wanted to plead. Short responded "I want to plead guilty." The court again explained to Short the amended Count One that charged conspiracy to possess and distribute 5000 grams of cocaine, and asked whether Short understood what he was charged with. Short again responded that he did. Nothing in the record, however, indicates that the court specifically informed Short of his right to be reindicted by a grand jury.

The court next questioned Short regarding the circumstances of the drug incident from which the charges arose. Short explained that he had given $100,000 (not the $115,000 alleged by the government) to Furk so that Furk and Williams could purchase "four kilos" of cocaine, but that he had no idea where or how they would acquire the drugs. When asked how much cocaine the pair had brought back, Short responded "I don't really know." The court further inquired why he did not know, and Short responded "I didn't weigh it."

After questioning Short, the district court called F.B.I. Special Agent Utley Noble to give the government's statement of the case. Noble testified regarding both the agreement between Short and Furk to purchase drugs and the execution of the search warrant as described earlier. The record provides no basis for Noble's knowledge of these facts, but Short raised no objection to the testimony on that ground. Noble first testified that the arresting officers discovered "approximately one" kilogram of cocaine on the kitchen floor and that "approximately four kilograms" of cocaine were found in the master bedroom. Noble subsequently testified that "Mr. Ferk [sic] purchased in excess of five kilograms of cocaine" in Texas that he brought back to Tennessee in his truck. Following Noble's testimony, the court asked Short whether he took issue with any of Noble's assertions. Short initially questioned only the location of Furk's truck. He then claimed that he did not recall the kilogram of cocaine allegedly found on the kitchen floor, explaining simply that "I don't remember it being on the floor."

Having heard from the witnesses and accepted Short's plea, the district court ultimately sentenced Short to 120 months in prison, followed by five years of supervised release. The court arrived at this sentence by applying the mandatory minimum required under 21 U.S.C. § 841(b)(1)(A) where the drug quantity involved is 5000 grams or more. Given Short's criminal history category of I and the three-level offense reduction recommended by the plea agreement, the Sentencing Guidelines range for Short's conviction under the amended Count One was between 87 and 108 months of imprisonment. But because this Guidelines range fell below the statutory mandatory minimum of 120 months that the amended charge required, Short's plea agreement provided for an alternate sentence of 120 months, which the district court ultimately imposed.

Short did not directly appeal either his conviction or his sentence. He filed the present motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in June of 2002. Short argued that (1) his counsel rendered ineffective assistance with regard to both the amendment of his indictment and his plea agreement, and (2) the amendment of the indictment deprived the district court of jurisdiction and violated Short's constitutional rights. The district court denied the petition on the grounds that Short had not produced any evidence of his counsel's ineffectiveness, that he had otherwise knowingly and voluntarily waived his right to collateral review under his plea agreement, and that there was an adequate factual basis for his guilty plea. Short then filed a timely notice of appeal. The district court issued a certificate of appealability as to all of the claims raised by Short.

II. ANALYSIS...