U.S. v. Glover, s. 95-5100

• Citation: 97 F.3d 1345
• Decision Date: 07 October 1996
• Docket Number: 95-5058,Nos. 95-5100,s. 95-5100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert L. GLOVER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Zale WANN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1345

97 F.3d 1345

UNITED STATES of America, Plaintiff-Appellee, v. Robert L. GLOVER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. David Zale WANN, Defendant-Appellant.

Nos. 95-5100, 95-5058.

United States Court of Appeals, Tenth Circuit.

Oct. 7, 1996.

Robert Glover and David Zale Wann, pro se.

Stephen C. Lewis, United States Attorney, David E. O'Meilia and James L. Swartz, Assistant United States Attorneys, Tulsa, OK, for Plaintiff-Appellee.

Before EBEL, BARRETT, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Defendants David Wann and Robert Glover appeal from the joint denial of their substantially similar motions to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The district court denied relief primarily on waiver grounds, citing defendants' failure to raise their objections at sentencing. For the reasons that follow, we reverse and remand for further proceedings. ¹

I. Common Background

These companioned appeals arise out of a single criminal prosecution in which defendants pled guilty to a two-count indictment charging conspiracy to distribute, and aiding and abetting the distribution of, methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2. The type of methamphetamine involved was never identified during the plea proceedings. There was nothing improper in this, as the operative statutes do not distinguish among types of methamphetamine, and, consequently, "[t]o convict a defendant, the prosecution must prove [or the defendant must admit] ... only that the substance was generically methamphetamine." United States v. Deninno, 29 F.3d 572, 579-80 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1117, 130 L.Ed.2d 1081 (1995).

In contrast to their conflation for guilt-phase purposes, "[t]he sentencing difference between D-methamphetamine and L-methamphetamine is significant." ² Id. at 579 & n. 3 (discussing enhanced base offense level assigned to D-methamphetamine). Moreover, at the sentencing stage, "[s]ince the criminal offense makes no distinction between the types of methamphetamine, it cannot be assumed that [defendants] w[ere] convicted of [distribution] of D-methamphetamine." Id. at 580. Thus, even after defendants were formally convicted, the government bore the "burden of proof and production" to show by a preponderance of the evidence the type of methamphetamine involved in their offenses. Id.

We emphasize that neither the indictments nor the pleas in this case went beyond the requisite statutory elements by specifying the type of methamphetamine involved; if they had, subsequent (re)litigation of the issue might well have been precluded, see United States v. Allen, 24 F.3d 1180, 1183 (10th Cir.) (guilty plea "admits both the acts described in the indictment and the legal consequences of those acts"), cert. denied, 513 U.S. 992, 115 S.Ct. 493, 130 L.Ed.2d 404 (1994); United States v. Morrison, 938 F.2d 168, 171 (10th Cir.1991)("[Defendant] cannot [later] challenge the factual basis of the charge to which he pleaded guilty."). Under these circumstances, the government's newly raised contention that defendants' (generic) pleas obviated the need for substance-specific proof at sentencing is meritless.

The government fails to distinguish between guilt-phase issues, which are reasonably deemed renounced by the later voluntary act of pleading guilty, and independent sentencing errors, which, arising only after the plea, cannot be deemed abandoned in the same common-sense way. Surely, for example, a defendant who has pled guilty to a drug trafficking offense, has not thereby lost the right to insist that any subsequently considered enhancement predicates, such as career offender status or firearm use, be proven by the government before imposition of the corresponding enhanced sentence. Indeed, if the prospective waiver of sentencing error suggested by the government were adopted as a general matter, a pleading defendant effectively would have no enforceable right to a valid sentence--a "clearly untenable" and "patent[ly] anomal[ous]" result. ³ Green v. Reynolds, 57 F.3d 956, 959 (10th Cir.1995)(rejecting similarly prospective waiver principle in habeas context, because it would have imposed on the petitioner "the unprecedented status of a constitutional orphan, denied protection against yet unknown and unincurred deprivations"). Even a brief perusal of this court's burgeoning case law on the sentencing guidelines would reveal numerous decisions considering the objections of pleading defendants, including those convicted of generic methamphetamine offenses. See, e.g., United States v. Lande, 40 F.3d 329, 330-31 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1988, 131 L.Ed.2d 875 (1995).

In the criminal proceedings below, both defendants were sentenced as if they had been trafficking in D-methamphetamine, without any proof or findings regarding the nature of the methamphetamine actually involved in their offenses. While defendants, proceeding pro se, framed their respective § 2255 motions somewhat differently, correction of this basic error is their common aim.

The government responded to the motions in the district court by arguing that defendants' objections regarding methamphetamine classification were waived by counsel's silence on the matter at sentencing (not to be confused with the argument for waiver-by-plea under Stewart discussed above), citing this court's "all fours" holding to that effect in Deninno. See id. ("By failing to make any objections to the [unsubstantiated] scoring of the methamphetamine [as D-methamphetamine], [the defense] has in effect waived the issue for appeal."). The district court agreed and denied both defendants' illegal-sentence claims under Deninno 's waiver rule.

We certainly approve the district court's assiduous enforcement of circuit precedent regarding the waiver of unpreserved sentencing objections. However, defendants also raise claims of ineffective assistance of counsel that are not undermined, but rather bolstered, by just such prejudicial consequences of counsel's omissions at sentencing. We turn now to these latter claims, discussing separately the distinct procedural circumstances of each defendant below.

II. Defendant Wann

Mr. Wann was sentenced to two concurrent prison terms of 120 months, followed by five years' supervised release. He did not take an appeal. The present § 2255 motion, his first, challenges his sentence on the ground that defense counsel did not invoke, the district court did not enforce, and the prosecution did not satisfy, the government's burden of proof regarding the type of methamphetamine upon which his sentence was based. Since we are here concerned only with the ineffective assistance aspect, a matter properly left to collateral proceedings, our analysis of Mr. Wann's claim is not complicated by procedural bar concerns. See United States v. Galloway, 56 F.3d 1239, 1240-41 (10th Cir.1995).

The district court rejected Mr. Wann's ineffective assistance claim under the controlling performance-and-prejudice standard of Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)(requiring objectively deficient performance serious enough to undermine adversarial process and prejudice severe enough to deprive defendant of a fair trial). See also Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). Specifically, the district court held:

While Wann may meet his burden on the prejudice prong of the test, his assertions are not sufficient to meet the burden of demonstrating that his counsel was not reasonably effective.... He states in his original [M]otion to Correct Sentence that "No one involved in [the] sentencing process at the time knew about or understood ... the sentencing guidelines difference as to the two related substances both generically methamphetamine." Based on this lack of knowledge, the Court concludes that Wann's counsel was not ineffective in failing to raise the issue.

R. doc. 122 at 2-3. We cannot agree with the reasoning and conclusion stated.

Our analysis is guided both by the Supreme Court's broad formulation in Strickland and by this court's particularized application thereof to analogous facts in United States v. Kissick, 69 F.3d 1048 (10th Cir.1995). When counsel has unwittingly relieved the government of its burden of proof, ⁴ particularly when the evidence of record does not satisfy that burden, it is fair to say counsel has "so undermined the proper functioning of the adversarial process that [it] cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. This is, of course, "[t]he benchmark for judging any claim of ineffectiveness." Id.; see also Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986)("The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the [proceeding] was rendered unfair and the [result] rendered suspect."). Thus, we recently held in Kissick that "[a]n attorney's failure to challenge the use of a prior conviction to classify the defendant as a career offender [for sentence enhancement] when that prior conviction is facially insufficient to satisfy [the government's burden under the pertinent guideline] ... constitutes deficient performance under Strickland." Kissick, 69 F.3d at 1056 (characterizing sentencing challenge overlooked by counsel as "dead-bang winner"). We see no principled distinction between the professional omissions in Kissick and the instant case.

Accordingly, we reject the district court's holding that counsel's conduct at sentencing, though in error, was nevertheless within the range of reasonable professional competence. The illegal-sentence issue counsel failed to raise was clearly meritorious under the existing guidelines and elementary...