U.S. v. Glinsey

• Decision Date: 10 April 2000
• Docket Number: No. 98-60735,98-60735
• Citation: 209 F.3d 386
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CURTIS GLINSEY, Defendant-Appellant,
• Court: U.S. Court of Appeals — Fifth Circuit

Page 386

209 F.3d 386 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CURTIS GLINSEY, Defendant-Appellant,

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-60735

April 10, 2000

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Appeal from the United States District Court for the Northern District of Mississippi

Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Curtis Glinsey ("Glinsey"), federal prisoner #10779-042, appeals from the judgment and sentence entered by the district court after Glinsey pled guilty to illegally acquiring and redeeming food stamps as well as attempting to tamper with a witness. Having reviewed the record and briefs, this court finds error only because Glinsey was misinformed by the district court at his guilty plea hearing concerning the possibility and amount of restitution that might be ordered. We reduce the amount of restitution to $1,000,000, and affirm the district court's judgment as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to the presentence report ("PSR"), federal agents from the United States Department of Agriculture ("USDA") uncovered a possible conspiracy involving the unlawful acquisition and redemption of food stamps by three businesses in Clarksdale, Mississippi: New Eastgate Grocery, Roundyard Grocery, and One-Stop Grocery. Glinsey operated the New Eastgate Grocery and opened the other two businesses under the names of individuals who had no prior dealings with the food stamp program. Derix Dugan ("Dugan") and Rodney Paden ("Paden") reported that they were solicited and paid by Glinsey to sign as the operators of Roundyard Grocery and One-Stop Grocery, respectively. Glinsey also had each person apply for a food-stamp license for his respective store. In each case, Glinsey either owned or leased the property on which the business operated. Dugan testified that Glinsey gave him money for the purpose of illegally purchasing food stamps; Paden claimed that he never worked at One-Stop and went there only to receive cash payments from Glinsey for the use of Paden's name on the business.¹

In April 1997, USDA agents used undercover operatives to make multiple controlled sales of food stamps to Glinsey and other co-conspirators. On April 8 and 9, Glinsey and Dugan made four separate purchases of food stamps for discounted amounts of cash at New Eastgate Grocery. Other witnesses, who were cashiers at the various stores, corroborated that Glinsey would purchase food stamps illegally and then redeem the stamps through the various businesses. ²

Sales tax and other records revealed that from June 1995 through May 1997, Glinsey and his co-conspirators illegally redeemed approximately $1,506,128 in food stamps through the three businesses. During this same period, the businesses reported gross sales of only $239,810.94, for a difference of $1,266,317.06. For sentencing purposes, Glinsey was determined to have purchased and redeemed between $800,000 and $1.5 million in food stamps.

As part of their investigation, USDA agents recruited Dugan to testify against Glinsey. After learning that Dugan would assist the government, Glinsey attempted to have Dugan killed. He offered Michael Ratliff $10,000 to arrange the murder. Ratliff secretly recorded his conversation with Glinsey and eventually made the tape available to the government.

Shortly before trial, Glinsey pled guilty to a superseding indictment charging him with conspiracy to acquire and redeem food stamps unlawfully, unlawful acquisitions of food stamps, and unlawful redemption of food stamps. As part of his plea agreement, Glinsey also waived indictment on, and pled guilty to, a one-count information charging him with attempted witness tampering.

Given his participation in the conspiracy, Glinsey's base offense level was 6 under U.S.S.G. 2F1.1(a). Eleven levels were added because the amount of loss was between $800,000 and $1.5 million. 2F1.1(b)(1)(L). Two levels were added since the offense involved more than minimal planning. 2F1.1(b)(2)(A). Four more levels were added for Glinsey's leadership role in the criminal activity, which involved more than five participants or was otherwise extensive. 3B1.1(a). The probation officer recommended that Glinsey's offense level be increased by two for his obstructive behavior and, in particular, his attempt to have Dugan killed. From the adjusted level of 25 for the food stamp offenses, ³ three levels were subtracted for acceptance of responsibility. Glinsey's final offense level was 22, which, with a category I criminal history, put the imprisonment range at 41 to 51 months.

The district court denied Glinsey's objections to the PSR and sentenced him to 51 months on each count of conviction with the terms to run concurrently. The district court also ordered restitution in the amount of $1,266,317.06 pursuant to 18 U.S.C. 3563, 3583. No fine was imposed. Glinsey timely appealed the effectiveness of his counsel, the imposition of restitution, the manner in which his offense level was calculated, and the voluntariness of his plea.

II. ANALYSIS

Glinsey argues that he should be allowed to withdraw his guilty plea for several reasons: (1) his counsel was ineffective, (2) the district court violated Rule 11 by ordering restitution without informing him that restitution was possible, (3) his sentence was improperly enhanced since he was not a leader in a conspiracy, and (4) his plea was involuntary. Although issues (1), (2) and (4) overlap, we review each issue in turn.⁴

1.Ineffective assistance of counsel

Glinsey raises his ineffective assistance of counsel claim for the first time on appeal. Glinsey contends that his attorneys were ineffective for two reasons: (1) failing to move to suppress an audio tape implicating Glinsey in an attempt to have Dugan murdered, and (2) failing to investigate different methods of calculating loss used in other food stamp cases.⁵

A voluntary guilty plea waives all nonjurisdictional defects in the proceedings against the defendant. United State v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991). This includes claims of ineffective assistance of counsel except insofar as the ineffectiveness is alleged to have rendered the guilty plea involuntary. Unsurprisingly, Glinsey asserts exactly this connection between counsel's alleged errors and his guilty plea. And although we ordinarily review a claim of ineffective assistance raised on direct appeal "only in rare cases where the record allowed us to evaluate fairly the merits of the claim," United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987), this is such a rare case, since the record clearly belies Glinsey's claims.

In order to establish ineffective assistance of counsel, Glinsey must show that (1) his counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 2065-68 (1984). With respect to guilty pleas, the prejudice requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985). Thus, Glinsey "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.

a.Motion to suppress the audio tape

Glinsey avers that his counsel was ineffective for failing to move to suppress the audio tape in which Glinsey was caught trying to arrange the murder of Dugan. Glinsey contends that the tape was inadmissible under Title III of the Omnibus Crime and Control and Safe Streets Act of 1968, 18 U.S.C. 2511(2)(d), since Ratliff made the tape for the purpose of extorting money.

At the time Glinsey entered into the plea agreement, the food stamp trial was roughly two weeks away. Although the attempted witness tampering had already occurred and Glinsey's bond had been revoked partly for that reason, ⁶ no charge of attempted witness tampering had yet been filed. Since a motion to suppress the tape would have been premature as to a witness tampering charge, and the tape was irrelevant to the food stamp crimes, Glinsey's counsel had no forum and no opportunity to move to suppress. Counsel was not ineffective for failing to move to suppress.

Furthermore, Glinsey does not show that he was prejudiced by his attorney's omission. A transcript of the tape was offered at the bond revocation hearing, where Ratliff (who had made the tape) testified under oath to the events surrounding Glinsey's attempt to have Dugan murdered, including the recorded conversation. Glinsey does not claim, nor does the record support, that his attorney was deficient in not objecting to this testimony. The merely cumulative transcript of the tape recording was not constitutionally prejudicial to Glinsey.

b.Failure to investigate loss calculation

Glinsey also contends that his counsel was ineffective for failing to investigate cases that would show that the district court overstated its loss calculation. To establish his failure to investigate claim, Glinsey must allege with specificity what the investigation would have revealed and how it would have benefitted him. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). He must also show a reasonable probability that, but for counsel's unprofessional errors, the sentence would have been significantly less harsh. Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).

Glinsey fails to make this showing for two reasons. First, a district court's loss determination under 2F1.1(b)(1) is a factual finding reviewed for clear error. United States v. Oates, 122 F.3d 222, 225 (5th Cir. 1997). The loss calculation need not be precise and will be affirmed so long as it...