U.S. v. Blackwell

• Decision Date: 14 October 1997
• Docket Number: No. 96-8110,96-8110
• Parties: 97 CJ C.A.R. 2342 UNITED STATES of America, Plaintiff-Appellant, v. Donald Keith BLACKWELL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 947

127 F.3d 947

97 CJ C.A.R. 2342

UNITED STATES of America, Plaintiff-Appellant, v. Donald Keith BLACKWELL, Defendant-Appellee.

No. 96-8110.

United States Court of Appeals, Tenth Circuit.

Oct. 14, 1997.

Patrick J. Crank, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on brief), Casper, WY, for Plaintiff-Appellant.

Steven A. Wuthrich, Sandy, UT, for Defendant-Appellee.

Before BALDOCK, BRORBY and BRISCOE, Circuit Judges.

BRORBY, Circuit Judge.

The government appeals the district court's October 17, 1996 order, entered pursuant to 28 U.S.C. § 2255 (1994) (amended 1996), that vacated criminal defendant Donald Keith Blackwell's guilty plea and his previously imposed sentence. See United States v. Blackwell, 944 F.Supp. 864 (D.Wyo.1996). The district court primarily premised its order on the disparity between Mr. Blackwell's sentence and that of a co-conspirator, Shelly Cecala. See id. We reverse and remand.

I. Facts

On September 20, 1994, the grand jury for the District of Wyoming indicted Mr. Blackwell for conspiracy to possess with intent to distribute and conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846 (1994), and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841. On February 2, 1995, Mr. Blackwell pled guilty before the District Court for the District of Wyoming to the charge of conspiracy to possess with intent to distribute and to distribute eight ounces of cocaine. Based on the terms of Mr. Blackwell's plea agreement, the government filed a motion to dismiss the remaining counts against Mr. Blackwell and, to reward Mr. Blackwell's cooperation with the government, a motion to grant Mr. Blackwell a three-level departure, thus reducing his sentencing guideline range from twenty-four to thirty months imprisonment to fifteen to twenty-one months.

On April 24, 1995, the district court granted the government's motions and sentenced Mr. Blackwell to fifteen months incarceration, three years of supervised release, a $1,500 fine, and a $50 special assessment. At the sentencing hearing, the court asked whether Mr. Blackwell would have to be a witness in the prosecution of his supplier and co-conspirator, Shelly Cecala, in the District of Utah. Ms. Cecala's prosecution in Utah was entirely separate from Mr. Blackwell's prosecution in Wyoming. In response, the government replied:

Honestly, Your Honor, I am filling in for Mr. Crank today and let me have a moment, if I may. (Pause.)

Your Honor, I'm told that she had originally entered into a deal with the federal government in large measure due to Mr. Blackwell's assistance in coming forward and telling us what he knew about her involvement. I guess that deal is currently on the skids and we [i.e., referring to the United States Attorney's Office for the District of Utah] may need to go forward with trial, in which case he will be needed for testimony.

At this point I guess it's fair to tell Your Honor that it's all up in the air.

On June 14, 1995, Mr. Blackwell filed a motion seeking resentencing. He alleged that three days prior to his sentencing, unbeknownst to either his attorneys or the United States Attorney's Office for the District of Wyoming, Ms. Cecala had pled guilty before the United States District Court for the District of Utah to distributing fifty-five ounces of cocaine. Mr. Blackwell further alleged the Utah district court sentenced Ms. Cecala only to a term of probation, ¹ and that in light of the lenient sentence imposed upon Ms. Cecala, who had a greater role in the conspiracy than did he, his sentence was unfair. The Wyoming district court, relying on both its "inherent jurisdiction" to right injustices and Fed.R.Crim.P. 35, vacated Mr. Blackwell's original sentence and resentenced him to three years probation, 250 hours of community service, and a $50 special assessment. The government appealed, and this court held the district court lacked jurisdiction to resentence Mr. Blackwell. United States v. Blackwell, 81 F.3d 945, 949 (10th Cir.1996). Accordingly, we reversed the district court's resentencing of Mr. Blackwell and remanded to that court with instructions to reinstate the original sentence, id., which the district court did on June 19, 1996.

Subsequent to our reversal, Mr. Blackwell filed the motion presently at issue, a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. ² In his pro se motion, Mr. Blackwell presented five arguments asserting his sentence was invalid, of which the district court addressed only three. Blackwell, 944 F.Supp. at 866-67. The contentions the court addressed were: (1) the disparity between Mr. Blackwell's and Ms. Cecala's sentences justified relief; (2) the district court was misinformed at Mr. Blackwell's original sentencing as to the status of Ms. Cecala's case in Utah; and (3) Mr. Blackwell did not receive effective assistance of counsel from his trial counsel, Mr. Keith Goody. ³ Id. at 867-69. Mr. Blackwell primarily based his ineffective assistance of counsel claim on Mr. Goody's failure to learn, prior to Mr. Blackwell's sentencing, of Ms. Cecala's plea and probation.

On October 11, 1996, the district court held a hearing on Mr. Blackwell's § 2255 motion. At that hearing, the Assistant United States Attorney in charge of Mr. Blackwell's prosecution, Mr. Blackwell, and Mr. Goody all testified. The testimony focused on the Utah prosecution of Ms. Cecala and the adequacy of Mr. Goody's representation of Mr. Blackwell. In regard to the latter matter, the district court asked Mr. Goody whether "in retrospect, do you think that on the day [Mr. Blackwell] was sentenced ... you should have contacted Utah just to double-check and find out what sentence [Ms. Cecala] had gotten?" (Emphasis added.) Mr. Goody responded "Well, with the benefit of 20/20 hindsight, I certainly should have checked." (Emphasis added.) Notably, the Assistant United States Attorney, Mr. Goody, and the court itself, all expressed amazement that the Utah district court sentenced Ms. Cecala only to probation. ⁴

On October 17, 1996, the district court issued the order that is the subject of the instant appeal. In that order, the district court found all three above noted contentions were valid, and that each justified relief pursuant to 28 U.S.C. § 2255. Blackwell, 944 F.Supp. at 867-69. It then vacated both Mr. Blackwell's sentence and his guilty plea. The court then transferred the matter to United States District Judge Downes of the District of Wyoming and gave Mr. Blackwell sixty days to enter a plea before Judge Downes. Id. at 869-70. In examining the district court's § 2255 ruling, we review the district court's legal rulings de novo and its factual findings for clear error. United States v. Cox, 83 F.3d 336, 338 (10th Cir.1996).

II. Jurisdiction

As a threshold matter, we address whether we have jurisdiction to hear this appeal. On December 9, 1996, this court issued a show cause order requesting the parties to brief whether the district court's § 2255 order was final and appealable. If the district court's order was a "final decision," we have jurisdiction under 28 U.S.C. § 1291 (1994), which grants appellate courts jurisdiction to review final decisions of district courts. Final decisions are those that " 'end[ ] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment.' " Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 1949, 100 L.Ed.2d 517 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)).

After review of the parties' briefs and further consideration of the matter, we conclude the district court's § 2255 order was a final decision over which we have appellate jurisdiction pursuant to § 1291. The district court vacated Mr. Blackwell's sentence and plea and transferred the matter to a different district judge for entry of a new plea. Blackwell, 944 F.Supp. at 869-70. Thus, in regards to the § 2255 action, nothing more remained to be done. The district court's disposition was akin to those cases in which a new trial is ordered upon the granting of a § 2255 motion; therefore, the language of the Fifth Circuit is apropos:

[T]he § 2255 proceedings have ended with an order requiring the Government, if it wishes to persist in an effort to punish [the defendant], to return to Square One and recommence its effort ab initio. A more final termination of the § 2255 action can scarcely be imagined; what possible further purpose could it serve? We have jurisdiction.

United States v. Dunham Concrete Prods., Inc., 501 F.2d 80, 81-82 (5th Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975); accord United States v. Allen, 613 F.2d 1248, 1250-52 (3d Cir.1980) ( § 2255 order granting new trial was final and appealable under § 1291). Cf. Sprosty v. Buchler, 79 F.3d 635, 645 (7th Cir.) (district court order granting a writ of habeas corpus is final and therefore appealable), cert. denied, --- U.S. ----, 117 S.Ct. 150, 136 L.Ed.2d 95 (1996); Blazak v. Ricketts, 971 F.2d 1408, 1410-12 (9th Cir.1992) (same); Young v. Herring, 777 F.2d 198, 201-02 (5th Cir.1985) (same).

III. Vacation of Mr. Blackwell's Sentence

A.

We first address the district court's reliance on the "gross disparity" between Mr. Blackwell's and Ms. Cecala's sentences, as it is this perceived disparity that fundamentally drives the district court's overall disposition. Blackwell, 944 F.Supp. at 867-69. The district court noted Ms. Cecala was "much more heavily involved and culpable" than Mr. Blackwell. ⁵ Id. at 869. Relying on the general precept that "similar offenders engaged in similar conduct should be sentenced equivalently," id. at 868 (citing United States v. Massey, 48 F.3d 1560, 1570 (10th Cir.), cert. denied, 515 U.S. 1167, 115 S.Ct. 2628, 132 L.Ed.2d 868 (1995)), the court believed that because Mr. Blackwell was less...