U.S. v. Smith

• Decision Date: 26 October 1990
• Docket Number: No. 90-8063,90-8063
• Citation: 915 F.2d 959
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricky Kevin SMITH, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 959

915 F.2d 959

UNITED STATES of America, Plaintiff-Appellee, v. Ricky Kevin SMITH, Defendant-Appellant.

No. 90-8063

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 26, 1990.

Ricky Kevin Smith, Fort Worth, Tex., pro se.

LeRoy Morgan Jahn, Krista L.S. Leinenkugel, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before GEE, SMITH, and WIENER, Circuit Judges.

PER CURIAM.

Ricky Kevin Smith (Smith) appeals the final judgment of the district court denying his habeas corpus motion to vacate or set aside his sentence. Smith contends that his sentence should be vacated because he was convicted and sentenced under the wrong statute and because in agreeing to a guilty plea he received ineffective assistance of counsel in violation of the sixth and fourteenth amendments. Finding no reversible error, we affirm.

On October 13, 1987, a federal grand jury returned a two-count indictment against Smith. The indictment charged Smith with uttering a forged United States Treasury check and with obstructing the mail. On December 1, 1987, the government filed a one-count superseding information charging Smith with uttering and publishing as true a United States Treasury check for $406 bearing a falsely-made and forged endorsement, in violation of 18 U.S.C. Sec. 495. Pursuant to a plea agreement, Smith pleaded guilty to the superseding information in exchange for dismissal of the two-count indictment.

On January 7, 1988, the district court sentenced Smith to a ten-year term of imprisonment and, in accordance with 18 U.S.C. Sec. 3013, assessed him $50. ¹ The two-count indictment was then dismissed. Smith did not file a direct appeal from the judgment of conviction and from the sentence.

On February 9, 1989, Smith filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Sec. 2255. In this motion Smith claimed that he was convicted under the wrong statute; that he did not receive a copy of either the indictment or the information before being called upon to plead; that he did not understand the charge against him; and that his attorney induced him to plead guilty by promising him that he would receive probation. On December 20, 1989, the district court dismissed Smith's motion without an evidentiary hearing. Smith timely appealed the denial of his motion. On appeal Smith argues that he was convicted and sentenced under the wrong statute and that he received ineffective assistance of counsel.

Prosecution under Incorrect Statute

Smith contends that he was incorrectly prosecuted and sentenced under 18 U.S.C. Sec. 495 ² when he should instead have been prosecuted and sentenced under 18 U.S.C. Sec. 510. ³ Section 495 penalizes both the forgery of any "writing" for the purpose of obtaining money from the United States and the publishing or uttering of any forged "writing" with intent to defraud the United States. A conviction under Sec. 495 may result in a prison sentence of not more than ten years. Section 510, on the other hand, specifically penalizes as a misdemeanor the forgery of an endorsement on a Treasury check if the face value of the check, as in Smith's case, does not exceed $500. A conviction under the misdemeanor provision of Sec. 510 may result in a prison sentence of not more than one year.

More particularly, Smith claims that permitting the government to choose under which of these two statutes it will prosecute leads to arbitrary sentences. Because the statutes provide different penalties for the same conduct, the court, Smith argues, should rule in favor of leniency and apply Sec. 510 which permits no more than a one- year sentence for forging an endorsement on a Treasury check worth less than $500.

This court's decision in United States v. Cavada, 821 F.2d 1046 (5th Cir.1987), cert. denied, 484 U.S. 932, 108 S.Ct. 304, 98 L.Ed.2d 262 (1987), completely forecloses Smith's contention that he was prosecuted and convicted under the wrong statute. The court in Cavada rejected each of the arguments that Smith now makes.

We held in Cavada that the enactment of 18 U.S.C. Sec. 510 did not modify or repeal by implication 18 U.S.C. Sec. 495. Id. at 1047. The government may, therefore, prosecute under either statute. Id. The court concluded that the different penalties which Secs. 495 and 510 impose for the same conduct do not create the "positive repugnancy" between their provisions which statutes must manifest for courts to hold that the legislature implicitly intended to repeal the earlier statute. Id. at 1048 (quoting United States v. Batchelder, 442 U.S. 114, 122, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979) (quoting United States v. Borden Co., 308 U.S. 188, 199, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939))).

Conceding that one of the statutes may be redundant as applied to Treasury checks, this court, nevertheless, reasoned that "the penalty provisions are capable of co-existing because they apply to convictions under different statutes." Id. (citing Batchelder, 442 U.S. at 112, 99 S.Ct. at 2203). That analysis led this court to conclude that "the later statute does not supersede the earlier one simply because a defendant's conduct might violate both." Id. (citing Batchelder, 442 U.S. at 122, 99 S.Ct. at 2203; Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976)).

This court in Cavada also quickly disposed of the other arguments on these statutes that Smith again raises. The "two penalties [do not] create an ambiguity that must be resolved in favor of lenity." Id. For a conviction under either statute, "the penalty prescribed is certain." Id. (citing Batchelder, 442 U.S. at 121-22, 99 S.Ct. at 2203). Furthermore, when conduct violates more than one statute, the government may prosecute under either statute so long as it does not discriminate against any class of defendants. Id. (citing Batchelder, 442 U.S. at 123-24, 99 S.Ct. at 2204); see also Ehrlich v. United States, 238 F.2d 481, 485 (5th Cir.1956) ("A defendant cannot complain because the charge against him is brought under the more serious penalties when two statutes punish the same general acts."). ⁴

In the present case, the government opted to prosecute Smith under Sec. 495 and not under Sec. 510. Smith pleaded guilty to violating Sec. 495. The district court sentenced him, as was within its discretion, to the maximum prison term permissible under that statute--ten years. Although prosecuting Smith under Sec. 495 may seem especially harsh, particularly when the maximum sentence under Sec. 510(c) is only one year, our decision in Cavada leaves this court no choice but to conclude that the government has the right to choose under which statute to prosecute a forged endorsement on a Treasury check. We are bound by a previous decision of this court until a majority of our members believes that we should overrule our earlier decision. Consequently, we must conclude that Smith was convicted and sentenced under the correct statute.

Ineffective Assistance of Counsel

Smith contends that he received ineffective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution. Smith claims that his attorney (1) failed to inform him that he was indicted under the wrong statute; (2) falsely stated that the government had agreed to a sentence of probation in exchange for a guilty plea; (3) falsely stated that a previously dismissed, unrelated state charge would be reinstated if he did not plead guilty; and (4) falsely stated that he faced a possible fifteen-year imprisonment term if he did not plead guilty. Smith also contends that the district court should have held an evidentiary hearing to evaluate his allegations.

To obtain habeas corpus relief on the grounds of ineffective assistance of counsel, a petitioner must demonstrate not only that his counsel's performance was deficient, but also that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To demonstrate deficiency, the petitioner must show that his counsel's actions "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. To demonstrate prejudice, he must show that a "reasonable probability" exists that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

This same two-part standard applies to ineffective assistance of counsel claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). Smith, therefore, has the burden of proof and of persuasion to establish that a reasonable probability exists that but for his counsel's alleged failure to inform and misrepresentations he "would not have pleaded guilty and would have insisted on going to trial. See Czere v. Butler, 833 F.2d 59, 63 (5th Cir.1987) (quoting Uresti v. Lynaugh, 821 F.2d 1099, 1101 (5th Cir.1987)).

A reviewing court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. It must also strongly presume that counsel has exercised reasonable professional judgment. Id.; Lockhart v. McCotter, 782 F.2d 1275, 1279 (5th Cir.1986), cert. denied, 479 U.S. 1030, 107 S.Ct. 873, 93 L.Ed.2d 827 (1987) (citing Ricalday v. Procunier, 736 F.2d 203, 206 (5th Cir.1984)). "[S]econd-guessing is not the test for ineffective assistance of counsel." King v. Lynaugh, 868 F.2d 1400, 1405 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989).

Smith first claims that his counsel was ineffective in failing to inform him that he was indicted under the wrong statute. Given this court's decision in Cavada, 821...