United States v. Crain

• Decision Date: 14 December 2017
• Docket Number: No. 15-60146,15-60146
• Citation: 877 F.3d 637
• Parties: UNITED STATES of America, Plaintiff–Appellee v. William Bruce CRAIN, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

877 F.3d 637

UNITED STATES of America, Plaintiff–Appellee

v.William Bruce CRAIN, Defendant–Appellant

No. 15-60146

United States Court of Appeals, Fifth Circuit.

FILED December 14, 2017

Gaines H. Cleveland, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Mississippi, Gulfport, MS, Glenda Ruth Haynes, Esq., Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Mississippi, Jackson, MS, for Plaintiff–Appellee.

Damon R. Stevenson, Stevenson Legal Group, P.L.L.C., Jackson, MS, for Defendant–Appellant.

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant William Bruce Crain pleaded guilty to possession of child pornography and to using interstate facilities to transmit information about minors. Crain’s plea agreement included a waiver of his appeal and collateral-attack rights. He filed a motion to vacate his sentence, which the district court denied after a hearing. He now appeals, arguing that (1) his collateral-attack waiver is invalid, and (2) his attorney was ineffective for failing (a) to object to misstatements by the district court at his Rule 11 plea colloquy, and (b) to advise him about possible special conditions of supervised release. We dismiss Crain’s appeal in part, and affirm the district court in part.

I. FACTS AND PROCEEDINGS

In 2008, Crain was charged with possession of child pornography (Count I) and using interstate facilities to transmit information about minors (Count II), in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2425. In 2009, Crain pleaded guilty to those charges pursuant to a written plea agreement. That agreement contained waivers of his rights (1) to appeal his conviction and sentence "on any ground whatsoever," and (2) to collaterally attack his conviction and sentence "in any post-conviction proceeding[.]"¹

The plea agreement contained a section describing the maximum potential sentence. It stated, as to Count I, that Crain would receive a term of supervised release of at least three years and up to his lifetime. That statement of the maximum term of supervised release was correct, but the minimum term of supervised release for his offense was actually five years.² The plea agreement also specified that if Crain should violate any condition of his supervised release, he could "be returned to prison for the entire term of supervised release[.]"

At Crain’s plea hearing, the district judge mistakenly informed Crain that the maximum term of supervised release on Count I was three years. The judge also told Crain that if a defendant violates the conditions of supervised release, the district court would "decide what to do with the person [who violated terms of supervised release]" and that the court "could even send the person back to the penitentiary[.]" When Crain entered his guilty plea, he had already signed his plea agreement. He confirmed at his plea colloquy that he had read "each and every paragraph" of the plea agreement before he signed it.

After Crain pleaded guilty, the U.S. Probation Office prepared a Presentence Investigation Report ("PSR") which stated the correct maximum and minimum term of supervised release, and recommended the maximum, that is, a lifetime of supervised release. The PSR also recommended special conditions of supervised release because Crain was a sex offender: (1) a prohibition of any Internet access at all and any computer use without permission from the Probation Office, (2) sex offender treatment, (3) polygraph examinations as directed by the Probation Office, (4) sex offender registration, and (5) warrantless searches by the Probation Office. Crain filed objections to the PSR before sentencing, but he did not address the inconsistent maximum and minimum terms of supervised release.

At the sentencing hearing, Crain stated that he had read the PSR and discussed it with his lawyers.³ The probation officer again correctly stated the maximum and minimum terms of supervised release, and Crain’s attorney agreed with that range. Crain addressed the court before the sentence was imposed, but he did not mention either the length of the supervised release term or the special conditions of supervised release identified in the PSR. The district court adopted the PSR’s guideline range from 151 to 180 months, and sentenced Crain to 161 months in custody. The court also imposed a lifetime term of supervised release, including the following special conditions: (1) a lifetime ban on possession or use of any computer with Internet access and on using any computer at all during business hours, (2) providing financial information on the Probation Office’s request, (3) sex offender and mental health treatment, (4) polygraph examinations at the direction of the Probation Office, (5) sex offender registration, and (6) warrantless searches.

Crain filed a notice of appeal of his sentence. The government filed a motion to dismiss Crain’s appeal based on his appeal waiver. Crain responded that his depression medication and mental health issues had rendered him incompetent to plead guilty. In 2010, a panel of this court rejected that contention, concluding that the district court had adequately addressed Crain’s competence at rearraignment, and dismissing Crain’s appeal on the basis of his appeal waiver.

In 2011, Crain filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. He raised six grounds in his motion to vacate: (1) The district court violated Federal Rule of Criminal Procedure 11 at the plea hearing, most notably by incorrectly stating the maximum term of supervised release and "[f]ail[ing] to inform [Crain] of the maximum possible imprisonment,"⁴ (2) his plea counsel was ineffective for incorrectly advising him about the guideline range Crain would face, and for failing to advise him of the likely lifetime term and special conditions of supervised release,⁵ (3) his sentencing counsel was also ineffective for (a) failing to object to the PSR and, at sentencing, on the grounds that the lifetime term of supervised release conflicted with the district judge’s statement, and (b) failing to request to withdraw his guilty plea, (4) his appellate counsel was ineffective (a) for failing to raise several issues, and (b) for failing to challenge his appeal waiver, and (5) the government "lacked jurisdiction" to charge him with Count I because it did not establish an interstate commerce nexus. Crain attached to his motion his own affidavit and an affidavit from his attorney at the plea phase.

The government contended that Crain’s motion should be denied based on his collateral-attack waiver, which Crain claimed was rendered invalid by the Rule 11 errors at his plea hearing. The district court ruled that the collateral-attack waiver was valid and barred all of Crain’s claims other than his claims of ineffective assistance of counsel at the plea and sentencing stages.⁶ This was because those claims fall under an exception to an otherwise valid collateral-attack waiver when such claims could affect the validity of the plea.⁷ The court denied some ineffective assistance claims⁸ and held a hearing on the claims regarding his attorney’s alleged failure to (1) advise him of the special conditions, (2) inform him of the consequences of violating the conditions of supervised release, and (3) object to the portion of the PSR that contradicted the district judge’s statement at rearraignment.⁹

At that hearing, Crain’s plea attorney testified that the government had considered bringing additional charges against Crain, but did not do so because of the plea negotiations. The attorney acknowledged that, before rearraignment, he had advised Crain that the court could impose up to a lifetime term of supervised release and that the conditions of release were generally discussed. That lawyer also testified that he knew that Crain might face some Internet restrictions, but it is unclear whether he discussed this with Crain.¹⁰

For his part, Crain testified that, before he entered his plea, his attorney never advised him that he could face a lifetime computer ban. Crain also claimed that he pleaded guilty based on the court’s assurance at rearraignment that he would face no more than three years of supervised release on each count and that he first learned of the possibility of lifetime supervised release and computer restrictions when the court imposed sentence. But, he also admitted that when he received the PSR, his "main focus" was on the amount of time he would be imprisoned. He maintained that he was never told that he could return to prison for life for supervised release violations.

Crain also testified that if he had known he faced a lifetime computer ban or a lifetime term of supervised release, he would not have pled guilty, because these conditions would make it impossible for him to work after his release. He also claimed that, after reviewing the PSR, he asked his attorneys to withdraw his plea because the guideline range was longer than he expected, but that they told him it was too late to do so.¹¹ He acknowledged, however, that he did not raise these concerns during allocution.

After the hearing, the court denied Crain’s motion as to his remaining claims. The court concluded that counsel could not have known, before Crain pleaded guilty, what recommendations would be in the PSR. The court found that Crain’s attorney advised him that he could be returned to prison if he violated conditions of supervised release.¹² As for the failure-to-object claim, the court ruled that any such objection would have been frivolous because a life term was authorized by the statute and the court would not have allowed Crain to withdraw his plea. The court also noted that Crain’s testimony that he was "focused" on the length of his sentence belied his claim that he would not have pled guilty.

The district court granted a certificate of appealability ("COA") on the following issues: (1) whether the alleged Rule 11 errors...