The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Defendant entered a guilty plea, on April 3, 2006, to possession with intent to distribute more than 50 grams of cocaine base. The remaining three counts again defendant were dismissed upon oral motion of the government. On July 27th, defendant was sentenced to 240 months imprisonment to be followed by 10 years of supervised release and a $100 special assessment. The judgment and commitment was signed and filed on July 31st and entered on the docket on August 2nd.
Defendant's counsel filed a notice of appeal on August 4th and defendant filed a pro se notice on August 11th. On October 26th, the Eighth Circuit Court of Appeals granted defendant's motion to dismiss the appeal.*fn1 The mandate was filed in this Court on October 26th.
On March 2nd, defendant filed a motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. §2255. He asserts that his counsel was ineffective for failing to negotiate a written plea and cooperation agreement, for failing to object to the 21 U.S.C. §851 information/enhancement, for failing to make adequate objections at sentencing to preserve appellate issues, and for filing an Anders brief instead of perfecting an appeal or raising plain error issues. Defendant also seeks an evidentiary hearing.
Defendant contends that he specifically requested his counsel to negotiate a written plea with a cooperation agreement instead of a verbal deal with the government. He continues that his counsel failed to object to the Judge's plea colloquy when it fell short of the Criminal Procedure Rule 11 standards and failed to object during the oral plea colloquy concerning the 21 U.S.C. §851 enhancement -- notice of which was never received from the government -- that defendant did not possess "crack cocaine" in the prior conviction on which the government relied for the enhancement. He argues that the §851 enhancement requires that a defendant have committed the same offense in a prior conviction -- not simply a marijuana conviction which warranted a sentence of probation. Defendant asserts that the Court failed to adequately question him specifically about his criminal background which voids the plea agreement.
He also argues that his counsel failed to object to the Court's failure to notify defendant of his constitutional rights under United States v. Booker, and the mandatory use of the guidelines in this case; to the legality of the plea in chambers versus an open court plea; to the illegal 2 point firearm enhancement for a firearm he never pled guilty to at the oral plea; to discuss the acceptance of responsibility with the Court and the government at sentencing; to the illegal and excessive 10 years of supervised release imposed; to the failure to attach the plea transcripts to his presentence report; and to the judicial participation at sentencing towards circumventing ineffective assistance of counsel relief. Finally, defendant claims that his counsel was ineffective for failing to raise the 2 level upward departure for a firearm he never pled guilty to on direct appeal and the excessive supervised release imposed.
The government filed a response on March 15th that defendant failed to show that his counsel was ineffective. As to the claim regarding failing to negotiate a written plea agreement, the government points out that defendant stated he was satisfied with the services of his attorneys and had no complaint whatsoever when discussing the oral plea agreement; he subsequently stated he agreed with the terms of the plea; he affirmed at sentencing that he wanted to enter a guilt plea; nothing has occurred that would cause him to want to change his plea; and he affirmed again that he was satisfied with his counsel's representation in his case.
The government continues that defendant's counsel had nothing to object to during the change of plea colloquy as the government did state that defendant understands and agrees that he has a prior felony drug conviction which requires the Court to sentence him to no less than 20 years; the government made no mention of the prior conviction being for possession of crack cocaine; the presentence report noted a prior conviction for delivery of a controlled substance -- marijuana; defendant filed no objections to the presentence report; defendant stated at the sentencing hearing that he was satisfied with the accuracy of the report; and he accepted responsibility to be punished.
The government counters that defendant fails to cite any specific language to back up his assertion that an enhancement under §851 may only be applied if the prior conviction was for the same crime that the defendant is currently indicted upon, his sentence was enhanced pursuant to the express language of 21 U.S.C. §841 and that § 851 merely describes the procedures the government must follow -- and followed in this case -- in order to give defendant adequate notice that his sentence will be enhanced due to a prior felony drug conviction. It asserts that even if there were any errors -- which it does not concede -- in calculating the guidelines sentence, any error would be harmless as defendant was sentenced to the statutory minimum.
Regarding the Anders brief claim, the government argues that defendant fails to show how his counsel was ineffective or how he was prejudiced to the point that had an Anders brief not been filed a reasonable probability existed that the result would have been any different. Finally, it states that the in-chambers change of plea colloquy was on the record and subject to the same formalities as it would have been had it been conducted in open court.
On April 3rd, defendant filed a reply in which he argues that the government's silence concedes his claims that the excessive 10 years of supervised release violated Apprendi; the 2-point firearm enhancement for a gun was not pled in the instant case; §841 contains no penalty but was constructively amended by the presentence report; he was denied an opportunity to cooperate under U.S.S.G. §5K1.1 and Fed.R.Crim.P. 35; a plain error argument could have easily been raised as alleged in the §2255; and counsel's failure to ascertain the plea colloquy was according to the dictates of Fed.R.Crim.P. 11 and 32. He counters that the government offered no case law to show that the "same crime" is irrelevant under the §851 enhancement and stresses that §851 applies when the same crime is committed twice or more. Defendant continues that nowhere in his plea or sentencing colloquy did he admit to a §841 penalty that allows a 240-month sentence, he followed his counsel's lead, and his sentence would have been less if his counsel had made proper objections as alleged in the §2255 petition.
The transcript of the April 3, 2006 change of plea was filed in this Court on August 31st.
Relevant portions of the transcript are excerpted below:
THE COURT: All right, I'm going to ask the defendant to stand and raise his right hand and be sworn by the clerk.
[Defendant sworn]. [Page 2]
THE COURT: Are you satisfied with the services rendered thus far by your attorneys and particularly Mr. Robinson?
THE COURT: You have no complaints whatsoever?
THE COURT: Is there a plea agreement?
MR. LAVICKA: There's not a written plea agreement, no, Your Honor.
THE COURT: Is there an oral agreement?
MR. LAVICKA: Yes, Your Honor.
THE COURT: Would you state it for the record. Now, I want you to listen carefully because I want you to state for the record whether you or disagree with this agreement because I don't want you coming back here six months from now telling me that you performed your side of the agreement but the government has not or that your attorney was ineffective and you have a new lawyer and you want any sanctions set aside. So listen carefully because I want you to state for the record whether you agree or disagree with the agreement. What is the substance of the agreement?
MR. LAVICKA: Your Honor, the United States will move to dismiss Counts 1, 2 and 3 and the defendant agrees to plead guilty to Count 4 possession with intent to distribute more than 50 grams of crack cocaine. The defendant understands and agrees that he has a prior felony drug conviction which requires the court to sentence him to no less than 20 years. Your Honor, those are the salient points of the plea agreement that we have.
THE COURT: There is nothing else about the level of credit he is to receive?
MR. LAVICKA: No, Your Honor.
THE COURT: You all haven't discussed that?
MR. LAVICKA: No, Your Honor.
THE COURT: You didn't discuss the federal sentencing guidelines?
MR. LAVICKA: No, Your Honor.
THE COURT: Mr. Robinson or your associate, what is your understanding of the agreement that you all have with ...