U.S. v. Harfst, 97-2283

• Decision Date: 16 February 1999
• Docket Number: No. 97-2283,97-2283
• Citation: 168 F.3d 398
• Parties: 1999 CJ C.A.R. 1995 UNITED STATES of America, Plaintiff-Appellee, v. Eric Stuart HARFST, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 398

168 F.3d 398

1999 CJ C.A.R. 1995

UNITED STATES of America, Plaintiff-Appellee, v. Eric Stuart HARFST, Defendant-Appellant.

No. 97-2283.

United States Court of Appeals, Tenth Circuit.

Feb. 16, 1999.

Submitted on the Briefs: ^*

John J. Kelly, United States Attorney, and Thomas L. English, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Patrick J. Perrone of McCarter & English, LLP, Newark, New Jersey, for Defendant-Appellant.

Before PORFILIO, HOLLOWAY, and HENRY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Eric Stuart Harfst appeals from the district court's denial of his motion challenging his sentence pursuant to 28 U.S.C. § 2255. We conclude that because defendant may have a valid claim of ineffective assistance of trial counsel arising from counsel's failure to properly present the claim that defendant was only a minor or minimal participant in the offense of which he was convicted, the case must be remanded for an evidentiary hearing on this issue.

I

Defendant entered a conditional guilty plea to possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), reserving the right to appeal the denial of his motion to suppress. The district court sentenced him to 96 months' imprisonment and ordered that he be subject to five years of supervised release to commence on his release from confinement. On direct appeal defendant challenged the denial of the motion to suppress, but did not challenge his sentence. This court affirmed the conviction and the denial of defendant's suppression motion. See United States v. Harfst, 81 F.3d 173 (table), No. 95-2164, 1996 WL 131501 (10th Cir.1996).

Defendant subsequently filed the instant motion challenging his sentence pursuant to 28 U.S.C. § 2255. In his motion, defendant contended that he was not a "single participant in a single occurrence crime," as his presentence report stated, but was only a one-time courier in a drug distribution scheme and, therefore, was a minor or minimal participant in the offense entitled to have his offense level decreased pursuant to U.S.S.G. § 3B1.2. He also contended that he did not understand his right of allocution and therefore did not explain to the district court his minimal role in the offense. In response the government argued, among other things, that defendant had procedurally defaulted his claims because he had not shown cause for failing to raise them on direct appeal.

The district court referred the case to a magistrate judge who recommended that defendant's § 2255 motion be denied. The magistrate judge agreed with the government that defendant had not shown adequate cause to excuse his procedural default. The magistrate judge also concluded that defendant could not show prejudice because, as a courier, defendant was not necessarily a minimal or minor participant entitled to a sentence adjustment. Finally, the magistrate judge concluded that defendant had not shown he was denied his right of allocution.

In his objections to the magistrate judge's findings and recommendation, defendant for the first time argued that "counsel's failure to raise the[se] issue[s] before the district court or on direct appeal constitutes ineffective assistance of counsel." R. Doc. 9 at 4. ¹ Adopting the findings and recommended disposition of the magistrate judge, the district court denied defendant's § 2255 motion without addressing his argument that his procedural default should be excused on the basis of counsel's ineffectiveness. Defendant timely filed a notice of appeal. Defendant thereafter filed an application for a certificate of appealability, as required by 28 U.S.C. § 2253(c), along with his opening brief. We granted defendant a certificate of appealability on "the constitutional issue of whether his trial counsel was ineffective for failing to seek a reduction in his sentence under U.S.S.G. § 3B1.2 on the basis of his alleged minor or minimal participation in the offense." May 5, 1998 Order at 1.

II

A court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). As explained in his supporting memorandum, defendant's § 2255 motion presented two issues: (1) whether defendant was entitled to a downward departure as a minor or minimal participant in the crime, and (2) whether defendant failed to understand his right of allocution. See R. Doc. 2 at 5, 10. Neither the motion nor the supporting memorandum mentioned any ineffectiveness, or any assistance or lack of assistance at all, on the part of counsel. At least facially, the two issues raised are both nonconstitutional sentencing issues that, while proper bases for defendant to proceed in the district court, by themselves would not support issuance of a certificate of appealability because they do not assert the denial of a constitutional right. See, e.g., Young v. United States, 124 F.3d 794, 799 (7th Cir.1997) (noting that not every misapplication of law implicates a constitutional error and stating that "[i]f the district court denies a petition based on a statutory issue, § 2253(c)(2) precludes an appeal."), cert. denied, --- U.S. ----, 118 S.Ct. 2324, 141 L.Ed.2d 698 (1998).

Defendant did not raise the constitutional issue of ineffective assistance of counsel until his objections to the magistrate judge's recommendation. In those objections, defendant contended that "counsel's failure to raise the [sentencing] issue[s] before the District Court or on direct appeal constitutes ineffective assistance of counsel. It is well settled that ineffective assistance of counsel constitutes 'cause' and excuses a procedural default." R. Doc. 9 at 4 (citation omitted). Because the district court's analysis of an ineffective counsel claim is similar whether presented as cause or a separate claim, we will consider defendant to have sufficiently raised this issue and we will proceed to the merits of defendant's claim.

III

While traveling by train from Los Angeles to Chicago, a DEA agent identified defendant as a possible drug courier. After talking to defendant and searching his bags, the agent found a plastic-wrapped package that he believed contained either crack cocaine or methamphetamine, and he arrested defendant. The package contained 1.124 net kilograms of methamphetamine. Defendant was the only individual charged and convicted, after a guilty plea, in connection with the possession and distribution of this methamphetamine.

In addressing a possible sentence adjustment for his role in the offense, defendant's presentence report stated that "defendant was a single participant in a single occurrence crime. Therefore, no role adjustment is warranted." Application for Certificate of Appealability, Ex. A at 5. After recommending credit for acceptance of responsibility and cooperation with authorities, the presentence report determined defendant's offense level to be twenty-nine and his criminal history category to be II.

The district judge accepted the presentence report recommendations but he concluded a criminal history category of II significantly over represented defendant's criminal past because it was based on two misdemeanor convictions, one of which was ten years old. The court determined that a history category of I was more appropriate which, when combined with an offense level of twenty-nine, resulted in a guideline range of 87 to 108 months' imprisonment. The court also found that defendant met the criteria of 18 U.S.C. § 3553(f), allowing for a sentence below the statutory minimum of 120 months. Accordingly, the district court sentenced defendant to 94 months' imprisonment.

IV

A

Defendant contends that he was a one-time drug courier with no understanding of the nature or scope of the criminal enterprise, that he did not have any ownership interest in the methamphetamine, and that he was less culpable than those who owned the methamphetamine and controlled its distribution. He claims that his counsel was constitutionally ineffective for failing to present this information to the district court, specifically by (1) failing to object to the statement in the presentence report that he was a single participant in a single occurrence crime; (2) failing to move for a reduction in his base offense level under § 3B1.2 on the basis he was a minor or minimal participant; and (3) failing to advise him that he could be eligible for a sentence reduction, in which case he would have fully informed the district court through his right of allocution of his limited participation in the crime.

These closely related claims all revolve around the possible adjustment in offense level under U.S.S.G. § 3B1.2 based on a defendant's role in a crime. If a defendant was a "minimal participant" in the criminal activity, the offense level is reduced by four; if the defendant was a "minor participant," the level is reduced by two. § 3B1.2(a), (b). Application Note 1 explains that a minimal participant is "plainly among the least culpable of those involved in the conduct of a group. Under this provision, a defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant." On the other hand, "a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." Application Note 3.

Whether a defendant is a minimal or minor participant is a factual question for the district court. See United States v. Sukiz-Grado, 22 F.3d 1006, 1009 (10th Cir.1994). The defendant has the burden of proving entitlement to a § 3B1.2 adjustment by a preponderance of the evidence. See United States v. Gault, 141 F.3d 1399, 1405 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 253, 142 L.Ed.2d 208 (1998). In this case, if the district court had awarded defend...