United States v. Roe

Citation913 F.3d 1285
Decision Date29 January 2019
Docket NumberNo. 19-600,19-600
Parties UNITED STATES of America, Plaintiff-Appellee, v. Richard ROE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

MURPHY, Circuit Judge.

I. INTRODUCTION

Richard Roe pleaded guilty to conspiring to possess with intent to distribute 280 grams or more of cocaine base ("crack") and five kilograms or more of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Based in part on the drug quantities involved, Roe was subject to a twenty-year mandatory minimum sentence. See id. § 841(b)(1)(A)(ii)-(iii). Pursuant to the terms of Roe’s plea agreement, the government requested a sentence below the mandatory minimum. See 18 U.S.C. § 3553(e). The district court imposed a fifteen-year sentence.

Roe did not file a direct appeal; instead, he filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He asserted trial counsel was ineffective in failing to: (1) challenge the drug quantity at the sentencing hearing ("drug-quantity claim") and (2) file a notice of appeal as requested ("failure-to-file claim"). The district court summarily denied the drug-quantity claim, concluding Roe’s guilty plea established the relevant quantity. It held an evidentiary hearing on the failure-to-file claim. Trial counsel testified Roe never told him to file an appeal because they never discussed the issue. In a post-hearing motion, Roe sought to amend his failure-to-file claim so it focused on trial counsel’s failure to consult with him as to whether an appeal should be filed (the "failure-to-consult claim"). The district court rejected, on two separate grounds, Roe’s failure-to-consult claim. It concluded the failure-to-consult claim was an untimely new claim that did not relate back to the failure-to-file claim set out in Roe’s original § 2255 motion. In the alternative, the district court concluded the failure-to-consult claim failed on the merits.

Roe filed a notice of appeal and this court granted him a certificate of appealability to raise both the drug-quantity and failure-to-consult claims. As to the failure-to-consult claim, however, we specifically directed the parties to address whether the claim was timely (i.e., whether the claim relates back to Roe’s original § 2255 motion).

Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1)(B), this court affirms the order of the district court denying Roe’s § 2255 motion. In so doing, we hold as follows: (1) when a criminal defendant enters a knowing and voluntary guilty plea to an indictment charging a drug conspiracy with an attendant quantity element, the defendant is subject to the enhanced penalties associated with that quantity; and (2) Roe’s failure-to-consult claim does not relate back to his failure-to-file claim and is, therefore, untimely.

II. BACKGROUND
A. Underlying Criminal Proceedings

In a multi-defendant, multi-count indictment, a federal grand jury charged Roe with, inter alia, one count of conspiracy to commit the following criminal offenses: (1) "to manufacture, to possess with intent to distribute and to distribute 280 grams or more" of crack; and (2) "to possess with intent to distribute and to distribute five kilograms or more" of cocaine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)-(iii), 846. This charge is hereinafter referred to as the "Conspiracy Count." The minimum sentence applicable to the Conspiracy Count, based exclusively on the quantity of drugs set out in the indictment, is a term of imprisonment of no less than ten years. Id. § 841(b)(1)(A)(ii)-(iii). The United States, however, filed an information under 21 U.S.C. § 851, providing notice that Roe had a prior Kansas state felony conviction for possession of cocaine. The existence of this prior felony drug conviction increased the relevant statutory mandatory minimum to twenty years’ imprisonment. Id. § 841(b)(1)(A)(ii)-(iii).

Roe pleaded guilty to the Conspiracy Count pursuant to a written plea agreement. In exchange for Roe’s guilty plea, the government promised, inter alia, to dismiss the remaining counts in the indictment; to not file a second information under § 851, thereby eliminating the possibility Roe would be subject to a statutory mandatory life sentence, see id. § 841(b)(1)(A)(ii)-(iii) ; and to file a motion for relief from the twenty-year mandatory minimum, see 18 U.S.C. § 3553(e), should Roe provide substantial assistance in the investigation or prosecution of another individual. In exchange for these promises, Roe not only agreed to plead guilty, he also agreed to waive "any right to challenge a sentence imposed which is within the [G]uideline range determined appropriate by the court." Following a hearing, the district court concluded Roe’s guilty plea was knowing and voluntary, was based only on the promises set out in the plea agreement, and was supported by a factual basis as to every element of the charged offense.1

In advance of the sentencing hearing, the Office of Probation and Pretrial Services prepared a Presentence Investigation Report ("PSR"). Based on interviews with Roe’s co-conspirators, as well as the testimony of those individuals during related proceedings, the PSR concluded Roe purchased and distributed more than ten kilograms of cocaine during the course of the conspiracy.2 This quantity of cocaine resulted in a base offense level of thirty-two. U.S.S.G. § 2D1.1(c)(4). The PSR increased Roe’s offense level by two because he possessed a firearm during the course of the conspiracy, see id. § 2D1.1(b)(1), but decreased his offense level by three based on his acceptance of responsibility, see id. § 3E1.1(a), (b). Roe’s total offense level of thirty-one, when combined with a criminal history category of V, resulted in an advisory Guidelines range of 168 to 210 months' imprisonment.3 See U.S.S.G. Sentencing Table. Pursuant to the provisions of U.S.S.G. § 5G1.1(b), however, Roe’s Guidelines range was set at 240 months' imprisonment because the statutory mandatory minimum was greater than the high end of the advisory Guidelines range. In advance of the sentencing hearing, Roe’s trial counsel did not object to the drug-quantity calculations set out in the PSR. Consistent with the terms of the plea agreement, the government filed a pre-sentencing motion indicating Roe had provided the prosecution with substantial assistance. See 18 U.S.C. § 3553(e), U.S.S.G. § 5K1.1. That motion asked the district court to reduce Roe’s otherwise applicable statutory minimum twenty-year sentence by twenty-five percent and, accordingly, impose a sentence of 180 months' imprisonment.

At the sentencing hearing, trial counsel reiterated that he had no objections to the PSR. Roe emphasizes that his trial counsel did not request a sentence lower than the 180-month sentence requested by the government.4 During his allocution, Roe asserted he had "never seen the amount of drugs that I'm charged with in this case ... but now I understand how a conspiracy works." He elaborated on this understanding: "I was involved no matter how big or small the role I played." Roe told the court that, while he meant no "disrespect," he bought the cocaine recited in the PSR (which specifically recognized Roe purchased multi-ounce quantities of cocaine at least twice a week) as part of his "drug addiction." The district court concluded the 180-month sentence recommended by the government was an appropriate one, "given the amount of drugs" Roe was "involved in distributing." The district court incorporated the PSR’s findings into its sentence and sentenced Roe to 180 months' imprisonment on the Conspiracy Count. The district court then addressed Roe’s appellate rights, stating as follows: "I know there was a waiver of appeal rights in the Plea Agreement. Are there any rights which would survive this particular sentence?" Trial counsel answered the district court’s inquiry in the negative. Roe did not file a direct appeal.

B. Roe’s § 2255 Motion

On February 23, 2015, Roe filed a timely, pro se § 2255 motion to vacate, set aside, or correct his sentence. He argued, inter alia, that trial counsel was ineffective for failing "to legally object to the length of the sentence during the sentencing hearing." This prejudiced him, Roe asserted, because the "court cannot permit a defendant to be sentence[d] on charges that were not made and/or proven to be true in the criminal indictment against him." Roe specifically challenged trial counsel’s failure to object to "the alleged weight of the drugs," claiming he was "negligently charged ten kilograms" even though he "only had one gram of cocaine" during his arrest. Any drug quantity that increased the statutory penalty for an offense must be proved, Roe argued. According to Roe, however, he never "legally admitted" any quantity except for "one gram of cocaine."5 As a remedy, Roe asked to be resentenced without regard to the minimum mandatory. As an alternate ground for obtaining § 2255 relief, Roe asserted trial counsel was ineffective for failing to file a notice of appeal. In support of this ground for relief, Roe specifically averred he had requested that trial counsel file a notice of appeal on the day he was sentenced.6

In its response to Roe’s § 2255 motion, the government argued Roe never asked trial counsel to file a notice of appeal "at the time of or near the time of his sentencing." The government relied on an affidavit provided by Roe’s trial counsel. According to trial counsel, while either Roe or a member of Roe’s family had asked about filing a notice of appeal, the inquiry came several months after sentencing, well after the time to appeal had expired. As to Roe’s drug-quantity claim, the government argued the PSR correctly relied on sworn trial testimony to determine Roe’s applicable drug quantity.

In a preliminary order denying in part Roe’s § 2255 motion, the district court identified, inter alia, two claims of ineffective assistance of counsel that are relevant to the issues on appeal: the...

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