U.S. v. Bradley

• Decision Date: 10 March 2005
• Docket Number: No. 03-6328.,03-6328.
• Citation: 400 F.3d 459
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel Demont BRADLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

400 F.3d 459

UNITED STATES of America, Plaintiff-Appellee, v. Samuel Demont BRADLEY, Defendant-Appellant.

No. 03-6328.

United States Court of Appeals, Sixth Circuit.

Argued: February 2, 2005.

Decided and Filed: March 10, 2005.

ARGUED:

John E. Rodgers, Jr., Price, Rodgers, Hill & Kolarich, Nashville, Tennessee, for Appellant. William Cohen, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

ON BRIEF:

John E. Rodgers, Jr., Price, Rodgers, Hill & Kolarich, Nashville, Tennessee, for Appellant. Darryl A. Stewart, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: NELSON and SUTTON, Circuit Judges; WELLS, District Judge.^*

OPINION

SUTTON, Circuit Judge.

Samuel Bradley argues that he received ineffective assistance of counsel in deciding to sign a plea agreement and that, in any event, he is no longer bound by the agreement — specifically, its provisions that he would be sentenced under the United States Sentencing Guidelines and that he could not appeal the sentence — in the aftermath of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005). Because we traditionally address ineffective-assistance claims on collateral review and because Bradley has given us no good reason for doing otherwise here, we dismiss that part of Bradley's direct appeal without reaching the merits. Because changes in the law generally do not permit either the government or a criminal defendant to renege on a plea agreement, because Bradley agreed to be sentenced under the Guidelines and because Bradley waived his right to appeal the resulting sentence (save for claims of ineffective assistance of counsel or prosecutorial misconduct), Booker does not give Bradley a right to be resentenced.

I.

On November 6, 2002, a federal grand jury indicted Bradley on seven counts: four counts of possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), one count of possession of cocaine and a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1), one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

On June 23, 2003, Bradley pleaded guilty to one of the § 841(a)(1) counts and the § 922(g)(1) felon-in-possession count. In exchange, the government dismissed the remaining counts, agreed to recommend the maximum downward adjustment for Bradley's acceptance of responsibility, agreed to recommend that Bradley be sentenced at the low end of the Guidelines' sentencing range and "waive[d] its right to appeal any sentence imposed by the District Court, except if the Court departs downward from the otherwise applicable sentencing guideline range." JA 20.

For Bradley's part, the plea agreement required him to make several concessions as well. He agreed to be sentenced under the Guidelines:

I have been advised that I will be sentenced ... pursuant to guidelines established by the United States Sentencing Commission. I also understand that the Judge shall impose a sentence within the guideline range unless the court finds, and states on the record, any mitigating or aggravating circumstances that were not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.

JA 12. He acknowledged that "the guideline range in my case should be from 188 to 235 months." JA 13. He recognized that "the Constitution guarantees" him the "right to a ... public trial by jury" if he chose not to plead guilty. JA 14. He admitted that he is a "career offender" under § 4B1.1 of the Guidelines as a result of prior Tennessee state-law convictions for aggravated assault and facilitation of conspiracy to sell cocaine. JA 19. (Tennessee law provides that "[a] person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony." Tenn.Code Ann. § 39-11-403.) And he "waive[d] his right to appeal any resulting sentence directly or collaterally," save for claims of ineffective assistance of counsel or prosecutorial misconduct. JA 19.

On September 16,2003, the district court accepted the plea agreement and sentenced Bradley to 188 months of imprisonment (the low end of the Guidelines range) and four years of supervised release. During the Rule 11 colloquy at the sentencing hearing, the district judge informed Bradley of each of the material terms of his plea agreement — including his stipulation to career-offender status, his waiver of his right to appeal any issue (except for ineffective assistance of counsel or prosecutorial misconduct), the Guidelines' sentencing scheme and the government's concessions. When asked whether he understood and agreed to each of his concessions, Bradley answered, "Yes, sir." JA 45, 47, 48.

II.

Attempting to raise two challenges to the plea agreement, Bradley now appeals. He first invokes an exception to the no-appeal provision of the plea agreement, arguing that his trial counsel provided ineffective assistance by failing to inform him of case law holding that other state-law facilitation statutes (though not the Tennessee statute) may not be used as predicates to establish that a defendant is a "career offender." See United States v. Dolt, 27 F.3d 235 (6th Cir.1994); United States v. Liranzo, 944 F.2d 73 (2d Cir.1991). As in most direct appeals, however, the record contains scant information regarding the preparation of Bradley's trial counsel or his communications with Bradley about this or any other issue. That is why "in most cases a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective-assistance." Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Because "[t]he evidence introduced at trial ... will be devoted to issues of guilt or innocence, [] the resulting record [on direct appeal] in many cases will not disclose the facts necessary to decide" whether trial counsel was ineffective. Id. at 505, 123 S.Ct. 1690. And "[t]he appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse." Id. All of this explains our practice — with rare exceptions where "the record is adequate to assess the merits of defendant's allegations," see United States v. Wunder, 919 F.2d 34, 37 (6th Cir.1990) — of consistently declining to address ineffective-assistance claims on direct appeal. See United States v. Jackson, 181 F.3d 740, 747 (6th Cir.1999); United States v. Pruitt, 156 F.3d 638, 646 (6th Cir.1998); United States v. Aguwa, 123 F.3d 418, 423 (6th Cir.1997); United States v. Tucker, 90 F.3d 1135, 1143 (6th Cir.1996); United States v. Seymour, 38 F.3d 261, 263 (6th Cir.1994); United States v. Goodlett, 3 F.3d 976, 980 (6th Cir.1993).

We follow a similar course today. Because we cannot tell from this record what trial counsel told Bradley about this issue or about the risks of declining to accept a plea agreement that dropped five counts from the indictment, we leave this issue to be decided in the first instance in post-conviction proceedings. See Massaro, 538 U.S. at 505, 123 S.Ct. 1690 ("[I]neffective-assistance claims ordinarily will be litigated in the first instance in the district court, the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial.").

III.

Bradley next argues that his sentence is inconsistent with the Supreme Court's decision in United States v. Booker and urges us to remand the case to the district court for resentencing. As an initial matter, Bradley is mistaken in contending that his sentencing enhancement violates the Sixth Amendment, even after Booker. Bradley's enhancement arose from his status as a "career offender" under § 4B1.1 of the Sentencing Guidelines, to which he stipulated in his plea agreement, and indeed it is that stipulation that forms the central premise of his ineffective-assistance claim. The Sixth Amendment does not apply to agreed-upon facts; it regulates the decisionmaker of disputed facts. See Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004) (holding that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant") (some emphasis removed).

Even had the parties disputed the fact of Bradley's prior convictions, moreover, his sentence stems from the very type of recidivism enhancement that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), held need not be charged and proved before a jury. From Apprendi to Blakely to Booker, the Court has continued to except such factfinding from the requirements of the Sixth Amendment. See Booker, 125 S.Ct. at 756 ("Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."); Blakely, 124 S.Ct. at 2536 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.") (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); United States v. Marseille, 377 F.3d 1249, 1257-58 (11th Cir.2004) (recognizing that § 4B1.1 falls within the prior-conviction...