U.S.A v. Cooper

• Decision Date: 16 August 2010
• Docket Number: No. 08-7131.,08-7131.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Louis Efrain COOPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

617 F.3d 307

UNITED STATES of America, Plaintiff-Appellee,v.Louis Efrain COOPER, Defendant-Appellant.

No. 08-7131.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 26, 2010.

Decided: Aug. 16, 2010.

ARGUED: Brendan S. Leary, Office of the Federal Public Defender, Wheeling West Virginia, for Appellant. Paul Thomas Camilletti, Office of the United States Attorney, Martinsburg, West Virginia, for Appellee. ON BRIEF: Sharon L. Potter, United States Attorney, Wheeling, West Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILKINSON and Judge MICHAEL joined.

OPINION

NIEMEYER, Circuit Judge:

In this proceeding under 28 U.S.C. § 2255, Louis Cooper maintains that his counsel provided him constitutionally deficient legal representation in failing to consult with him about taking an appeal.

Cooper pleaded guilty to two drug trafficking offenses and a related firearms offense, without the benefit of a plea agreement. He submitted his plea pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), consenting to punishment even though unwilling to admit his part in the acts constituting the offenses, and the district court accepted the plea.

After objecting to portions of the presentence report, Cooper and the government reached a sentencing agreement under which Cooper withdrew his objections to the report and the government agreed not to seek a sentencing enhancement for Cooper's managerial role in the drug offenses. Cooper and the government also stipulated to a base offense level of 32 under the Sentencing Guidelines, which, with a criminal history category I, would subject Cooper to a Guidelines sentence of 121 to 151 months' imprisonment for the drug trafficking counts. Accepting the stipulation, the district court sentenced Cooper to the low end of the Guidelines range, imposing a sentence of 121 months' imprisonment for the drug trafficking counts and the mandatory 60-month consecutive sentence for the firearms count.

After sentencing, Cooper never requested that his counsel, S. Andrew Arnold, Esquire, file an appeal, and Arnold never consulted with Cooper on whether to file an appeal.

In this § 2255 proceeding, Cooper requests that his sentence now be vacated on the ground that he received ineffective assistance of counsel when Arnold failed to consult with him about taking an appeal. The district court denied the petition.

We affirm. Because Cooper repeatedly expressed his desire to have the criminal proceeding concluded, received the best possible sentence he could have received under the agreement he entered into with the government, and had no nonfrivolous issues to appeal, we conclude that Cooper has not established, as required by Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), that Arnold was constitutionally ineffective for failing to consult with him about an appeal or that Cooper was prejudiced by Arnold's failure to consult with him.

I

On March 5, 2004, after Cooper delivered approximately 9.2 grams of cocaine to a customer with the understanding that the customer would pay for the cocaine later, the customer agreed to serve as an informant for law enforcement officers. Under the supervision of the officers, the informant then paid Cooper $1,000 for the cocaine two days later.

On March 10, 2004, Cooper, along with two confidential informants, traveled from Mineral County, West Virginia, to Winchester, Virginia, to purchase approximately 80 grams of cocaine from an individual known as “Carlos.” After completing the purchase, Cooper was arrested on the return trip while stopped at a convenience store in Capon Bridge, West Virginia. Law enforcement officers had observed the drug transaction in Winchester and had followed the vehicle to Capon Bridge. Cooper was searched incident to the arrest, and officers found a Kel-Tec Model P-11 9-millimeter handgun in Cooper's waistband and the 80 grams of cocaine in a cup in the backseat of the vehicle, near where Cooper had been sitting.

Cooper was subsequently indicted for one count of possessing cocaine with intent to distribute and for one count of distributing cocaine, in violation of 21 U.S.C. § 841. He was also indicted for one count of using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Following his indictment, S. Andrew Arnold, Esquire, was appointed to represent Cooper.

Initially, Cooper planned to plead guilty to one drug trafficking count and the firearms count, pursuant to a plea agreement with the government. During the plea colloquy, however, the district court became concerned that Cooper's answers indicated that he believed he was not guilty of the crimes. Accordingly, the district court suspended the colloquy to allow Cooper to withdraw his plea or to consider pleading pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (holding that “[a]n individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime”). A few days later, when the hearing was resumed, Cooper entered an Alford plea, without the benefit of a plea agreement, to all three counts of the indictment, and the court accepted the plea. During the course of the plea colloquy, the district court advised Cooper that his right to appeal “will be restricted to the jurisdiction of the Court, the voluntariness of the guilty plea, the effective representation of your lawyer, and the application of the Sentencing Guidelines in this case,” and Cooper responded that he understood the restrictions.

The presentence report prepared for Cooper outlined the offense conduct and presented the probation officer's calculation of the sentencing range under the Sentencing Guidelines. The report indicated that, based on the drug quantities involved in the relevant conduct, the base offense level for Cooper was 32, to be increased two levels for Cooper's managerial role over four individuals, pursuant to U.S.S.G. § 3B1.1(c), for a total offense level of 34. Cooper objected to the presentence report, specifically (1) to the factual circumstances attributed to him, especially in view of his Alford plea, (2) to the calculation of drug quantities in the relevant conduct, (3) to the two-level enhancement for his managerial role, and (4) to the determination that he should not receive a reduction in the offense level for acceptance of responsibility. He also made a motion for a downward departure from the Sentencing Guidelines based on the ownership of the firearm, his lack of criminal history, and his role in the offenses.

At the sentencing hearing, the district court overruled two of the objections and scheduled a continuation of the hearing to receive evidence and rule on the remaining objections and his downward departure motion.

At the outset of the second sentencing hearing, Cooper and the government reported that they had reached an agreement whereby Cooper would withdraw his objections to the presentence report and his motion for a downward departure and stipulate to the base offense level of 32, as calculated in paragraph 41 of the presentence report. In exchange, the government agreed not to seek an enhancement for Cooper's managerial role and stipulated to the offense level of 32. Under this agreement, the Sentencing Guidelines range was 121 to 151 months' imprisonment for the drug trafficking counts and a mandatory consecutive 60-month sentence for the firearms offense. Accepting the agreement, the district court imposed concurrent sentences of 121 months' imprisonment, at the low end of the Guidelines range, on the drug trafficking counts and a mandatory 60-month term of imprisonment on the firearms count, to run consecutively to the terms imposed on the drug trafficking counts. After imposing the sentence, the district court advised Cooper of his limited rights to appeal and informed him that if he wished to appeal, he had to do so within 10 days of the entry of judgment, which was October 28, 2004. Cooper never filed an appeal.

Almost a year later, in October 2005, Cooper filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, asserting, among other things, that Arnold provided him with ineffective assistance of counsel by failing to consult with him about the possibility of taking an appeal. At the evidentiary hearing on the motion conducted by a magistrate judge, Cooper testified that he had wanted to file an appeal and that he had asked Arnold at the close of the sentencing hearing to visit him the next day at the Eastern Regional Jail. Cooper admitted, however, that he never expressed a desire to appeal. He claimed that he did not have time to do so before the marshals removed him from the courtroom. He said that he had intended to ask Arnold to file an appeal when Arnold visited him at the jail. According to Cooper, Arnold responded that he would come to the jail the next day after 1:00 p.m., but he never showed up. Cooper also testified that he had tried to contact Arnold but that he could not get through because Arnold's office did not accept collect calls.

Cooper also offered the testimony of his friend, Peter Zimmerman, who stated that around the time Cooper was sentenced, Cooper asked Zimmerman to help him contact Cooper's wife to get a message to Arnold. Zimmerman called his own parents, who then patched in Cooper's wife so that Cooper could talk to her. As far as Zimmerman could remember, it was “for something for court or something.”

Arnold testified that he had no recollection of Cooper asking him to come by the jail the day after the sentencing hearing and that he did not tell Cooper that he would visit him at...