The opinion of the court was delivered by: GARNETT EISELE, Senior District Judge
ORDER ON MOTION UNDER 28 U.S.C. § 2255
Before the Court is the Motion to Vacate, Set Aside, or Correct
Sentence, filed by Defendant Kelly Flannery. Mr. Flannery pled
guilty to a violation of 18 U.S.C. §§ 844(e) & 2.*fn1 On
September 10, 2003, Mr. Flannery was sentenced as a career
offender, pursuant to United States Sentencing Guidelines §
4B1.1,*fn2 to 120 months incarceration and three years of
supervised release. Mr. Flannery appealed the sentence on the
grounds that he was improperly classified as a career offender
and improperly denied an acceptance-of-responsibility reduction.
On July 27, 2004, the Eighth Circuit Court of Appeals issued a
per curiam decision affirming the sentence. (Dkt. # 156).
Mr. Flannery now seeks relief under 28 U.S.C. § 2255,
requesting that he be sentenced to forty-one months imprisonment,
or, in the alternative, permitted to withdraw his plea and plea
anew. This Motion alleges the following grounds: (1) the sentence
imposed exceeds the statutory maximum sentence; (2) the Court
violated Fed.R.Crim.P. 11; (3) ineffective assistance of
counsel; (4) breach of the plea agreement by the United States
and by the Court.
Ground I: Sentence Exceeds the Statutory Maximum
Defendant argues that his sentence of 120 months imprisonment
and thirty-six months of supervised release exceeds the statutory
maximum sentence of 120 months. According to
18 U.S.C. § 844(a)(1), "any person who violates any of subsections (a)
through (i) or (l) through (o) of section 842 shall be fined
under this title, imprisoned for not more than 10 years, or
both". Defendant is arguing that a term of supervised release
should be counted as part of the maximum term of imprisonment.
This argument has no merit.
18 U.S.C. § 3583 authorizes the imposition of a term of
supervised release after imprisonment, the length of which is
dependent upon the severity of the offense. While supervised
release is part of the sentence, it is not a term of
imprisonment. It is well established that a term of supervised
release is imposed in addition to the statutory maximum period of
imprisonment for the offense. See, e.g., U.S. v.
Montenegro-Rojo, 908 F.2d 425, 432 (9th Cir. 1990).
Ground II: The District Court Violated Fed.R.Crim.P. 11
Mr. Flannery contends that the Court failed to warn "that he
would not have the right to withdraw his plea even if the judge failed to accept the
recommended sentence under the plea agreement by the Court."
(Dkt. #170, p. 7). While Plaintiff has not cited the specific
Rule section, it appears that Plaintiff is invoking
Fed.R.Crim.P. 11. Under Rule 11(c)(3)(B),
To the extent the plea agreement is of the type
specified in Rule 11(c)(1)(B), the court must advise
the defendant that the defendant has no right to
withdraw the plea if the court does not follow the
recommendation or request.
Rule 11(c)(1)(B) states: "the plea agreement may specify that an
attorney for the government will . . . recommend, or agree not to
oppose the defendant's request, that a particular sentence or
sentencing range is appropriate or that a particular provision of
the Sentencing Guidelines, or policy statement, or sentencing
factor does or does not apply (such a recommendation or request
does not bind the court)".
It is clear from the record that the plea agreement signed by
Defendant is not of the type specified in Rule 11(c)(1)(B). The
plea agreement contains stipulations as to certain offense
characteristics, but no recommendation or request with respect to
any sentence may be found therein. As no particular sentence was
within the contemplation of the parties at the time Defendant
signed the plea agreement, Rule 11(c)(3)(B) does not apply. The
Court also notes that at the change-of-plea hearing, Defendant
stated that no threats or promises, other than those included in
the plea agreement, had been made to induce his plea of guilty,
so Defendant cannot now say that he understood there to be an
agreed-upon sentence not specifically
Even if the Court did fail to make a Rule 11 warning,
Fed.R.Crim.P. 11(h) states: "A variance from the requirements of this
rule is harmless error if it does not affect substantial rights."
Indeed, the United States Supreme Court has held: "It is only for
certain structural errors undermining the fairness of a criminal
proceeding as a whole that even preserved error requires reversal
without regard to the mistake's effect on the proceeding."
United States v. Dominguez Benitez, 542 U.S. 74
, 124 S.Ct. 2333
(2004). The Supreme Court
articulated the standard to be applied:
a defendant who seeks reversal of his conviction
after a guilty plea, on the ground that the district
court committed plain error under Rule 11, must show
a reasonable probability that, but for the error, he
would not have entered the plea. A defendant must
thus satisfy the judgment of the reviewing court,
informed by the entire record, that the probability
of a different result is "`sufficient to undermine
confidence in the outcome'" of the proceeding.
Id. 124 S.Ct. at 2340.
Here, Defendant has failed to meet his burden of proof.
Defendant presents nothing to show a reasonable probability that
he would not have entered a guilty plea or that he was confused
about his plea or the sentencing process, and the Court finds
nothing in the record to support such an inference. Indeed, given
Defendant's statements at the plea hearing, there is every reason
to believe that he would have pled guilty even if the Court gave
a Rule 11(c)(3)(B) warning. It is clear that Defendant was
cognizant of the maximum possible prison sentence, that his
criminal record would determine the applicable Guideline
sentence, that the appropriate sentence is within the sole
discretion of the Court,*fn3 that by pleading guilty he was
waiving his right to a trial, and that the plea hearing
essentially would be "his day in court". Furthermore, after the
presentence investigation report recommended that Defendant be
classified as a career offender, at no time did Defendant attempt
to withdraw his plea. At the sentencing hearing, defense counsel
objected to the manner in which Mr. Flannery's criminal history
was computed, but made no other objections to the application of the career
offender provision. As Mr. Flannery was made aware of the factors
that weigh upon the Court's considerations for sentencing as well
as the possible maximum term of imprisonment, the Court concludes
that the probability of a different result at the plea hearing is
not "sufficient to undermine the confidence in the outcome" of
that hearing. Cf. United States v. McCarthy, 97 F.3d 1562
(8th Cir. 1996) ("Under the facts of this case, we conclude
that if the district court erred in failing to give the required
Rule 11(e)(2) warning, the error was harmless. We reach this
conclusion because, after fully and carefully reviewing the
record, we believe that even if Thompsen would have been given a
Rule 11(e)(2) warning, he still would have pleaded guilty,
because the warning would have added precious little to the
knowledge he already possessed about the plea process.").
Ground III: Ineffective Assistance of Counsel
Mr. Flannery argues that he was denied effective assistance of
counsel because he was not advised of the applicability of the
career offender provision. "To establish an ineffective
assistance of counsel claim, a defendant must show that (1)
`counsel's representation fell below an objective standard of
reasonableness' and (2) that such failure prejudiced him in that
`there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different.'" Thomas v. United States, 27 F.3d 321, 325
(8th Cir. 1994) (quoting Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052).
Even if Mr. Flannery's counsel failed to advise him of the
career offender provision, his counsel reviewed the applicable
law and guidelines and presented arguments objecting to the
application of the career offender provision on several grounds.
While Mr. Flannery contends that he would not have accepted the
plea agreement had he been properly advised, subsequent to learning that he would be sentenced as a career offender, Mr.
Flannery did not attempt to withdraw his guilty plea nor did he
object to the effectiveness of his counsel at the sentencing
hearing. Even when he appealed his sentence to the Eighth
Circuit, he only challenged the applicability of the career
offender provision. Only now, after that appeal has failed, does
Mr. Flannery challenge his counsel's service as defective. The
Eighth Circuit considered circumstances substantially similar to
the facts at bar, and the Court of Appeals held, "In these
circumstances, the failure of [defendant's] lawyer to inform him
of [the possibility that he might be treated as a career
offender] did not establish that his lawyer's ...