U.S. v. Hernandez

• Decision Date: 21 November 2000
• Docket Number: No. 99-50011,99-50011
• Citation: 234 F.3d 252
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VITERBO HERNANDEZ, JR., also known as Luis Roland Hernandez, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 252

234 F.3d 252 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VITERBO HERNANDEZ, JR., also known as Luis Roland Hernandez, Defendant-Appellant.

No. 99-50011

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

November 21, 2000

REVISED November 29, 2000

Appeal from the United States District Court for the Western District of Texas

Before DUHE and PARKER, Circuit Judges, and FOLSOM,¹ District Judge.

PER CURIAM:

Appellant Viterbo Hernandez, Jr. ("Hernandez") appeals the district court's denial of his federal habeas petition. In his petition, Hernandez argued, among other things, that the district court's failure to warn him that his federal term of imprisonment would run consecutive to his anticipated state sentence rendered his federal guilty plea involuntary. We granted Hernandez a certificate of appealability as to that issue only. Finding no error, we affirm.

BACKGROUND

On November 9, 1993, while in the custody of the State of Texas awaiting trial on charges of distribution of marijuana, Hernandez was indicted for conspiracy to possess with intent to distribute the same marijuana in violation of 21 U.S.C. §§ 841 & 846. On December 6, 1993, a magistrate judge, via writ of habeas corpus ad prosequendum, ordered Hernandez's transfer into federal custody. On April 22, 1994, pursuant to a plea agreement with the government, Hernandez pled guilty to the federal charge in district court. The district court, on September 16, 1994, sentenced Hernandez to 188 months' imprisonment followed by five years' supervised release. The court did not indicate whether Hernandez's federal term of imprisonment was to run concurrent with or consecutive to any forthcoming state term of imprisonment. Hernandez was thereafter transferred into state custody, where, on October 5, 1994, pursuant to another plea agreement, he pled guilty to the pending state charges. The state court subsequently sentenced Hernandez to a 20-year term of imprisonment to run concurrent with his federal term.

Sometime thereafter, Hernandez discovered that he was not receiving credit against his federal term of imprisonment for time served in state prison. On August 26, 1996, Hernandez moved the federal district court for an order that would make his federal sentence run concurrent with his state sentence; in the alternative, Hernandez sought an order delivering him into federal custody so that he could begin his federal term of imprisonment. Hernandez's motion was denied November 5, 1996.

On February 26, 1997, Hernandez filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In a subsequent supporting brief, and for the first time in federal court, Hernandez argued that his state-court attorneys reached an agreement with state and federal prosecutors, the substance of which was that, in exchange for his guilty pleas, Hernandez would serve his federal term of imprisonment while his state term ran concurrently. Hernandez argued that his attorneys' failure to advise him that he could receive a consecutive federal sentence constituted ineffective assistance of counsel. Hernandez also argued that the district court's failure to warn him that his federal sentence might run consecutive to his state sentence rendered his federal plea involuntary. He contended that had he known of this possibility, he would not have pled guilty to the federal charges.

In support of his petition, Hernandez offered the affidavit of state prosecutor Susan Brown, who stated that she "had numerous discussions" with Hernandez's state-court attorneys and federal prosecutors. Brown stated that "all parties came to an agreement" that Hernandez would be permitted to serve his federal sentence while his state sentence ran concurrently. She further stated that state prosecutors were advised that, to effectuate the agreement, Hernandez had to enter his federal plea first and that, to this end, entry of Hernandez's state plea was continued several times. Hernandez also offered the affidavit of one of his state-court attorneys, Aron Pena, who stated that it was the "understanding of everyone concerned" that Hernandez would be permitted to receive credit against his state sentence while serving his federal term of imprisonment.²

On August 28, 1998, the district court concluded that, under the terms of Hernandez's federal plea agreement, all issues raised in his § 2255 petition were waived with one exception: whether the court's failure to warn Hernandez that his federal sentence would run consecutive to his state sentence rendered his federal plea involuntary. As to that issue alone, the district court ordered an evidentiary hearing, which was conducted December 1, 1998.

At the hearing, Hernandez restated the terms of the purported agreement between his state-court attorneys and state and federal prosecutors. Hernandez admitted that his federal plea agreement was silent as to whether his federal sentence would run consecutive to or concurrent with his state sentence. He also acknowledged that he had no discussions with his federal-court attorney, Ron Moody, concerning the alleged sentencing agreement. Further, the parties stipulated that Moody had no knowledge of any agreement that would have Hernandez's federal sentence run concurrent with his state sentence. Hernandez's other state-court attorney, Antonio Balderas, testified that he did not remember whether he discussed the purported sentencing scheme with federal prosecutors. Likewise, federal prosecutor Mark Frazier testified that he remembered having only vague discussions with state prosecutors and Hernandez's state attorneys concerning the possibility of a concurrent sentence.

On December 22, 1998, the district court denied Hernandez's § 2255 motion, finding that the federal government made no promises with respect to Hernandez's federal term of imprisonment. That day, the district court entered final judgment; Hernandez's timely request for a certificate of appealability ("COA") was later denied. We granted Hernandez a COA solely on the issue of whether the "district court's failure to inform him that his state and federal sentences might run consecutively" rendered his guilty plea involuntary.

DISCUSSION

I.

The validity of a guilty plea is a question of law we review de novo. See United States v. Amaya, 111 F.3d 386, 388 (5th Cir. 1998). "A guilty plea will be upheld on habeas review if entered into knowingly, voluntarily, and intelligently."³ Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). To be knowing and intelligent, the defendant must have "a full understanding of what the plea connotes and of its consequence." See Boykin v. Alabama, 395 U.S. 238, 244 (1970). The defendant need only understand the direct consequences of the plea; he need not be made aware every consequence that, absent a plea of guilty, would not otherwise occur. See Trujillo v. United States, 377 F.2d 266, 266 (5th Cir.), cert. denied, 389 U.S. 899 (1967).

The district court's authority (or lack thereof) to order consecutive or concurrent terms of imprisonment is described in 18 U.S.C. § 3584. We have not before considered whether a defendant must be advised of § 3584's effect. Prior to September 1, 1987 (§ 3584's effective date), 18 U.S.C. § 3568 required that a federal term of imprisonment run consecutive to any other sentence to which a defendant was subject.⁴ In United States v. Myers, 451 F.2d 402 (9th Cir. 1972), the Ninth Circuit held that § 3568 was a direct consequence of a guilty plea, the effect of which a defendant must be advised. In that case, defendant (Myers) pled guilty to and was sentenced on federal charges while in state custody awaiting trial on separate charges. Myers was subsequently convicted of the state charges; after he was paroled from state prison, he began his federal term but was not credited for his state time. Myers filed a habeas petition in federal court, alleging that § 3568 was a direct consequence of his guilty plea and that the district court's failure to advise him of its effect rendered his plea involuntary. The Ninth Circuit agreed. The court noted that under § 3568, the district court was "powerless" to impose a concurrent federal sentence, making the "impact of § 3568 [] a factor that necessarily affected Myers' maximum imprisonment." Id. at 404. Since "at all pertinent times" the district court was aware that Myers was in state custody, the court concluded that the district court was required to advise Myers that he would not begin his federal sentence until he was received in federal custody. Id.

The Ninth Circuit, however, stood alone in requiring that a defendant be advised of § 3568's effect. Cobb v. United States, 583 F.2d 695 (4th Cir. 1978)(per curiam), presented a case with facts virtually identical to those in Myers: defendant (Cobb) was delivered from state custody (where he was awaiting trial on state charges) into federal hands to face charges in federal court. Cobb pled guilty to and was sentenced on the federal charges and was transferred back to state custody. Cobb thereafter pled and was sentenced on the state charges and began his state term of imprisonment. Like the defendant in Myers, Cobb moved the court to permit withdrawal of his federal plea on the grounds that it was rendered involuntary by the district court's failure to advise of § 3568's effect. The Fourth Circuit agreed with the Ninth Circuit's conclusion in Myers that § 3568 was effective immediately upon Cobb's return to state custody and that the district court was without power to order concurrent sentences. Id. at 696-97. But the Fourth Circuit concluded that the statue was not a direct consequence of the guilty plea since it merely "postponed commencement" of the federal terms of imprisonment and "did nothing to increase them." Id. at 697.

Likewise, the Third Circuit in Kincade v. United States, 559 F.2d 906 (3d Cir.)(per curiam), cert. denied, 434 U.S. 970 (1977)...