U.S. v. Gordon, 92-4151

Decision Date21 September 1993
Docket NumberNo. 92-4151,92-4151
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harry Jarmar GORDON, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Robert L. Booker, Booker & Associates, Salt Lake City, UT, for defendant-appellant.

Bruce C. Lubeck, Asst. U.S. Atty. (David J. Jordan, U.S. Atty., with him, on the brief), Salt Lake City, UT, for plaintiff-appellee.

Before MOORE, ANDERSON, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Harry Jarmar Gordon was indicted on sixteen counts of aiding and abetting the distribution of a controlled substance, 21 U.S.C. Sec. 841(a)(1), (b)(1)(C); 18 U.S.C. Sec. 2, and one count of aiding and abetting the manufacture of a controlled substance. 21 U.S.C. Sec. 841(a)(1), (b)(1)(B); 18 U.S.C. Sec. 2. In exchange for the dismissal of all other counts, Defendant pleaded guilty to count twelve of the indictment--aiding and abetting the distribution of a controlled substance. Defendant now seeks to withdraw the plea.

Upon pleading guilty, Defendant signed a document entitled "Statement by Defendant in Advance of Plea of Guilty" ("the Statement"). The Statement set forth, in part, that Defendant would be sentenced under the Sentencing Guidelines, and that the final calculation by the court may differ from any calculation made by the government or Defendant's attorney. Thereafter, the court conducted a hearing to accept Defendant's guilty plea. At the hearing, the court reread the Statement to Defendant and he indicated that he understood it. The court informed Defendant--and he again stated that he understood--that even if his sentence differs from the calculation made by his attorney, he would not be permitted to withdraw his plea. The court also explained to Defendant that at the time of sentencing, "the court can and will consider all available information including factual data relating to any counts dismissed or about to be dismissed." At the conclusion of the hearing, the court accepted Defendant's guilty plea, determining that the "plea is made freely and voluntarily with full knowledge of his legal rights and also the consequences of a plea of guilty to this particular charge."

Prior to sentencing, the United States Probation Department prepared a presentence report. The report indicated that Defendant served as a "middleman" by introducing an undercover officer to various persons who sold cocaine base to that officer on various occasions. Many of those transactions represented activity underlying the dismissed counts of the indictment, and the presentence report recommended an offense level which included the quantity of drugs involved in these dismissed counts as relevant conduct. Inclusion of these quantities added six levels to Defendant's offense level. The presentence report further concluded that, because Defendant attempted to minimalize his participation in the criminal conduct during his presentence interview, Defendant was not entitled to a two level downward adjustment for acceptance of responsibility.

Prior to sentencing, Defendant's original counsel objected to the presentence report's recommended inclusion of the relevant conduct and the report's failure to recommend an acceptance of responsibility adjustment. Sentencing was originally scheduled for April 30, 1992, but Defendant failed to appear. The court issued a bench warrant for his arrest, and Defendant was later arrested. Original counsel made an appearance at the April 30, 1992 sentencing hearing and filed a motion to withdraw Defendant's guilty plea stating, "[D]efendant was not advised of the effect that relevant conduct of the other counts would have in increasing his guideline sentence from the anticipated five-seven years to a sentence in excess of thirteen years." Two days later, original counsel filed a motion to withdraw as Defendant's counsel, and filed an affidavit with the court in which he stated that, prior to Defendant's plea of guilty, he had informed Defendant that "it was [original counsel's] opinion that [Defendant] would not be assessed the relevant conduct adjustment for the drugs involved in all remaining counts."

On May 21, 1992, original counsel was permitted to withdraw and present counsel was appointed. Prior to the rescheduled sentencing date, present counsel filed a supplemental motion to withdraw Defendant's guilty plea pursuant to Fed.R.Crim.P. 32(d). The bases for Defendant's supplemental motion were ineffective assistance of original counsel and discovery of a new witness. After a hearing, the court denied Defendant's motion and, accepting the presentence report's recommendations, sentenced Defendant to 151 months imprisonment to be followed by four years of supervised release.

On appeal, Defendant asserts that his guilty plea was involuntary and unknowing due to original counsel's ineffective assistance as evidenced by original counsel's (1) failure to inform Defendant that relevant conduct would be considered in his sentencing, (2) failure to inform Defendant of his Fifth Amendment privilege against self-incrimination during the presentence interview, and (3) failure to obtain disclosure of Defendant's presentence report and request an evidentiary hearing. Defendant also claims that the district court abused its discretion by denying Defendant's Fed.R.Crim.P. 32(d) motion to withdraw his guilty plea. Finally, Defendant claims that his Fifth Amendment rights were violated because statements he made during the presentence interview were used against him. 1 We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

I.

As a threshold matter, we must determine whether Defendant's ineffective assistance of counsel claims are appropriately addressed on direct appeal.

In Beaulieu v. United States, 930 F.2d 805, 806-07 (10th Cir.1991), we recognized that the preferred avenue for challenging the effectiveness of counsel in a federal criminal case was via collateral attack. Id. at 806. This is so because a defendant often does not know he has a meritorious ineffective assistance claim until collateral proceedings are begun, and because ineffective assistance claims often require consideration of evidence not yet in the record on direct appeal. Id. at 807. Consequently, as a general rule, we will not resolve an ineffective assistance of counsel claim on direct appeal when the claim has not been raised before the district court. Id. There are rare instances, however, when we will entertain an ineffective assistance of counsel claim on direct appeal, including, inter alia, where the record is sufficient, or where the claim simply does not merit further factual inquiry. Id.

In the instant case, we will address Defendant's ineffective assistance of counsel claims in turn. 2 We address Defendant's claims regarding original counsel's failure to inform him that relevant conduct would be considered in sentencing because the record is sufficiently developed and the issue was raised in the district court. Further, because they do not merit further factual inquiry, we resolve Defendant's claims concerning original counsel's failure to inform him of his Fifth Amendment rights during the presentence interview, and original counsel's failure to obtain disclosure of Defendant's presentence report and request an evidentiary hearing.

We review a challenge to a guilty plea based on a claim of ineffective assistance of counsel using the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). Under this test, the defendant must show that his counsel's performance "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, and that the deficient performance resulted in prejudice, id. at 691, 104 S.Ct. at 2066. To show prejudice in the guilty plea context, the defendant must establish that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and insisted on going to trial." Hill, 474 U.S. at 59, 106 S.Ct. at 370.

Defendant has failed to show that original counsel's failure to predict the relevant conduct inclusion in his offense level constituted ineffective assistance of counsel entitling him to relief. A miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffective assistance of counsel. See United States v. Estrada, 849 F.2d 1304, 1307 (10th Cir.1988); Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir.1970); see also Doganiere v. United States, 914 F.2d 165, 168 (9th Cir.1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1398, 113 L.Ed.2d 454 (1991); United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir.1990). Moreover, Defendant has failed to establish that he suffered prejudice from original counsel's inaccurate sentence prediction. Prior to accepting his guilty plea the district court explained that the court's final calculation of Defendant's sentence may differ from any calculation made by his attorney, and the court also explained that in computing Defendant's sentence, "the court can and will consider all available information including factual data relating to any counts dismissed or about to be dismissed." See Doganiere, 914 F.2d at 168 (attorney sentence miscalculation does not result in prejudice where court had explained that it retained discretion as to what sentence would be). Given the fact that Defendant pleaded guilty even after being so informed by the court, his mere allegation that, but for original counsel's failure to inform him about the use of relevant conduct in sentencing, he would have insisted on going to trial, is insufficient to establish prejudice. See Arvanitis, 902 F.2d at 494 (defendant's allegation that he would have insisted on going to trial insufficient to show prejudice).

Defendant's second...

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