U.S. v. Hamilton

• Decision Date: 18 December 2007
• Docket Number: No. 06-5231.,06-5231.
• Citation: 510 F.3d 1209
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Duane HAMILTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

510 F.3d 1209

UNITED STATES of America, Plaintiff-Appellee, v. Duane HAMILTON, Defendant-Appellant.

No. 06-5231.

United States Court of Appeals, Tenth Circuit.

December 18, 2007.

Peter C. Astor, Tulsa, OK, for Appellant.

Tim Faerber, Assistant United States Attorney (David E. O'Meilia, United States Attorney, and Leena Alam, Assistant United States Attorney, on the brief), Office of the United States Attorney for the Northern District of Oklahoma, Tulsa, OK, for Appellee.

Before TACHA, Chief Circuit Judge, KELLY, and HENRY, Circuit Judges.

TACHA, Chief Circuit Judge.

Defendant-Appellant Duane Hamilton appeals the District Court's denial of his motion to withdraw his guilty plea and its decision to sentence him to 322 months' imprisonment. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

In May 2006, pursuant to a plea agreement with the Government, Mr. Hamilton pleaded guilty to two counts: (1) possession of 50 grams or more of cocaine base (i.e., crack cocaine) with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii); and (2) possession of firearms in furtherance of a drug trafficking offense (i.e., the offense charged in count one) in violation of 18 U.S.C. § 924(c)(1)(A)(i). The probation office prepared a presentence report classifying Mr. Hamilton as a career offender under § 4B1.1 of the U.S. Sentencing Guidelines ("Guidelines" or "U.S.S.G.") based on two prior felony convictions of a "controlled substance offense." U.S.S.G. § 4B1.1(a)(3); see also U.S.S.G. § 4B1.2(b) (defining "controlled substance offense"). Due to the application of the career-offender guideline, Mr. Hamilton's criminal history category was VI. See U.S.S.G. § 4B1.1(b). After a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, the probation office reported Mr. Hamilton's adjusted offense level as 34. Based on his criminal history category and offense level, the sentencing range calculated under the career-offender guideline was 322 to 387 months' imprisonment. See U.S.S.G. § 4B1.1(c)(2)(A).

Before his sentencing hearing, Mr. Hamilton filed a motion to withdraw his guilty plea, arguing that he received ineffective assistance of counsel when he entered into the plea agreement and pleaded guilty.¹ Specifically, Mr. Hamilton argued that his attorney should have informed him that the court could impose a sentence between 322 and 387 months' imprisonment under the career-offender guideline. See U.S.S.G. § 4B1.1(a), (c). He also argued that his attorney should have investigated his two prior felony convictions to determine whether they would, in fact, trigger application of the career-offender guideline. According to Mr. Hamilton, his attorney assured him that the court would likely impose a sentence at the statutory minimum for both counts, resulting in a total sentence of 15 years' imprisonment. Mr. Hamilton argued he should be allowed to withdraw his plea because, if he had known that he faced a minimum of 26, rather than 15, years in prison under the Guidelines, he would not have pleaded guilty and would have insisted on going to trial.

Before ruling on Mr. Hamilton's motion, the District Court held a hearing on the matter. At the hearing, Mr. Hamilton's original counsel testified that he likely told Mr. Hamilton to expect a sentence between 15 and 16 years. He also acknowledged that he did not investigate the prior felony convictions or advise Mr. Hamilton of the effect the career-offender guideline could have on his sentence. As detailed in a previously filed affidavit, the attorney did not investigate these convictions or consider the career-offender guideline because Mr. Hamilton told him that one of the felony charges had been reduced to a simple possession charge, and if this were true, Mr. Hamilton could not be classified as a career offender. At the hearing, the attorney also testified that he did not promise Mr. Hamilton that he would receive a particular sentence and that Mr. Hamilton was aware of both the minimum statutory sentence of 15 years and the maximum statutory penalty of life in prison.

At the conclusion of the hearing, the District Court denied the motion, emphasizing that Mr. Hamilton had repeatedly represented to the court that he understood his sentence would be determined solely by the court and that he was knowingly and voluntarily entering his plea. After denying the motion, the court conducted a sentencing hearing, during which Mr. Hamilton asked the court to vary from the Guidelines to avoid a sentence that over-represented his criminal history and the seriousness of his offense. After listening to Mr. Hamilton's arguments, the court decided to impose a Guidelines sentence. Although the court recognized that the Guidelines are not mandatory, it found them "instructive" and sentenced Mr. Hamilton to 322 months' imprisonment, a sentence at the bottom end of the advisory Guidelines range. Mr. Hamilton challenges this sentence on appeal, as well as the District Court's denial of his motion to withdraw his guilty plea.

II. DISCUSSION

A. Motion to Withdraw the Guilty Plea

1. Consideration of an Ineffective-Assistance Claim on Direct Appeal

Mr. Hamilton's appeal of the District Court's denial of his motion is largely based on his allegation that he received ineffective assistance of counsel. Ineffective-assistance claims should generally be brought in collateral proceedings, rather than on direct appeal, so that a factual record enabling effective appellate review may be developed in the district court. United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir.1995) (en banc); see also Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) ("When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose."). Here, however, a factual record enabling appellate review already exists; the District Court held a lengthy hearing on the matter. Because Mr. Hamilton's ineffective-assistance claim is "fully developed in the record," it falls within the narrow exception to our general rule that such claims will be dismissed when brought on direct appeal. See Galloway, 56 F.3d at 1242 ("Some rare claims which are fully developed in the record may be brought either on direct appeal or in collateral proceedings."); see also United States v. Carr, 80 F.3d 413, 416 n. 3 (10th Cir.1996) (considering ineffective-assistance allegation on direct appeal because a factual record had been fully developed in the district court). We will therefore review the District Court's denial of Mr. Hamilton's motion.

2. Whether Mr. Hamilton Established a "Fair and Just Reason" for Withdrawal

Our review of a district court's denial of a motion to withdraw a guilty plea is for abuse of discretion. United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir.1999). Although a motion to withdraw a plea prior to sentencing should be "freely allowed," we will not reverse a district court's decision unless the defendant can show that the court acted "unjustly or unfairly." Id. (quotations omitted).

Under Fed.R.Crim.P. 11(d)(2)(B), a defendant may withdraw a guilty plea before the court imposes a sentence if "the defendant can show a fair and just reason for requesting the withdrawal." The defendant bears the burden of establishing a "fair and just reason." United States v. Black, 201 F.3d 1296, 1299 (10th Cir.2000). In determining whether a defendant has met this burden, we consider seven factors: "(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant's motion, (4) inconvenience to the court, (5) defendant's assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources." United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993) (citing United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991)). Because Mr. Hamilton's argument for withdrawal focuses on his assertion of innocence and ineffective assistance of counsel, we address these factors first.

a. Assertion of Innocence

Mr. Hamilton contends that he asserted his innocence on both counts in his motion to withdraw. As to the possession of crack cocaine with intent to distribute, he argues he asserted his "legal innocence" by claiming that the seizure of the drugs violated the Fourth Amendment. With respect to the firearms charge, he argues he asserted his innocence by claiming he did not possess the firearms "in furtherance of" a drug trafficking crime as required by 18 U.S.C. § 924(c)(1)(A). We find both arguments unconvincing.

We begin by noting that a defendant may satisfy the assertion-of-innocence factor by asserting legal innocence. When Rule 32 (now Rule 11) was amended to require that the defendant show a fair and just reason for withdrawal, the Advisory Committee indicated that "whether the movant has asserted his legal innocence is an important factor to be weighed." Fed. R.Crim.P. 32 Advisory Committee's note to 1983 amendments; see also United States v. Maxwell, 498 F.3d 799, 801 (8th Cir.2007) (noting that district court may consider assertion of legal innocence); United States v. Rosen, 409 F.3d 535, 546 (2d Cir.2005) (same); United States v. Negron-Narvaez, 403 F.3d 33, 36 (1st Cir. 2005) (same); United States v. Cray, 47 F.3d 1203, 1206 (D.C.Cir.1995) (same). But see United States v. Brown, 250 F.3d 811, 818 (3d Cir.2001) ("In assessing a defendant's claim of `legal innocence' for purposes of withdrawal of a guilty plea, we must first examine whether the defendant has asserted his or her factual innocence."). In addition, we have previously indicated that an assertion of legal innocence could, in some cases, satisfy the first factor. See, e.g., United States...