IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-60014
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONALD SANDERS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(CRE-91-68-B-D)
_________________________
September 9, 1996
Before WISDOM, SMITH, and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Donald Sanders appeals, pro se and in forma pauperis, the
denial of his motion for postconviction relief pursuant to
28 U.S.C. § 2255 (1994). We affirm.
I.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Sanders and the government reached a plea agreement during the
second day of his trial for numerous drug offenses. Sanders agreed
to plead guilty to two counts of possession of crack cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a) and
(b)(1)(B) (1994); one count of committing that offense within 1,000
feet of a playground, in violation of § 860(a); and one count of
carrying and using a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (1994).
In exchange, the government agreed to dismiss the remaining nine
counts of Sanders’s indictmentSSwhich charged him with possession
of crack cocaine with intent to distribute, in violation of
§ 841(a) and (b)(1)(C); conspiracy to commit that offense, in
violation of 21 U.S.C. § 846 (1994); possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (1994) and
18 U.S.C. § 924 (1994); assault on grand jury witnesses, in
violation of 18 U.S.C. § 1513(a)(1) (1994); and threats against
other grand jury witnesses, in violation of § 1513(a)(1)SSand to
recommend concurrent sentences except as to the § 924(c) charge for
using and carrying a firearm.
The district court held a plea hearing and accepted Sanders’s
plea of guilty after satisfying itself that Sanders made the plea
knowingly and voluntarily. Shortly thereafter, Sanders asked to
withdraw his plea. At his sentencing hearing, he explained that he
had pleaded guilty only because his attorney was ineffective and
had made misrepresentations to him. The district court elicited
2
testimony from both Sanders and his attorney and denied the motion.
On direct appeal, Sanders’s attorney requested to withdraw and
filed an Anders brief asserting that there were no nonfrivolous
issues for appeal. We agreed and dismissed the appeal.
Sanders filed a § 2255 motion contending that he pleaded
guilty involuntarily and received ineffective assistance of trial
and appellate counsel. The district court denied the motion. San-
ders appealed, re-arguing the claims presented below and raising
a new oneSSthat his plea to the § 924(c) charge of using and
carrying a firearm lacked a sufficient factual basis.
II.
Sanders argues that his guilty plea was involuntary because
(1) his plea agreement was altered to his detriment after he signed
it, and (2) the government’s agreement to recommend that his
sentences run concurrently was misleading. Sanders’s contention
that his plea agreement was “altered and restructured” is
meritless. He testified under oath at his plea hearing that
(1) the prosecutor had described the plea agreement accurately;
(2) he understood the minimum and maximum sentences applicable to
each count; (3) no one had made any prediction or promise as to the
length of sentence he would receive; and (4) he felt that his
counsel competently represented his best interests. As Sanders has
presented no contradictory evidence, other than his own changed
3
testimony, the district court did not err in crediting Sanders’s
earlier statements.1
Sanders contends that the government’s agreement to recommend
concurrent sentences, except as to the § 924(c) offense, was
misleading because the sentencing guidelines deprive district
courts of discretion to determine whether sentences run consecu-
tively or concurrently. Sanders did not present this argument in
his § 2255 motion before the district court. Accordingly, he has
waived his right to raise it on appeal. See, e.g., United States
v. Faubion, 19 F.3d 226, 232 n.31 (5th Cir. 1994).
Even if this argument were properly before us, we would reject
it. While U.S.S.G. § 5G1.2 (1992) restricts the district courts’
discretion regarding whether sentences should run concurrently or
consecutively, it does not eliminate that discretion. A court
still may impose consecutive sentences if (1) the maximum sentence
for any single count is less than the statutory or guidelines
maximum, United States v. Kings, 981 F.2d 790, 798 (5th Cir.),
cert. denied, 508 U.S. 953 (1993); or (2) the court exercises its
discretion to depart from the guidelines, United States v.
Martinez, 950 F.2d 222, 226 (5th Cir. 1991), cert. denied, 504 U.S.
926 (1992). Thus, Sanders’s argument rests upon a misperception of
1
See United States v. Bachynsky, 949 F.2d 722, 728 (5th Cir. 1991), cert.
denied, 506 U.S. 850 (1992) (holding that defendant who renounces his own
testimony in an attempt to withdraw his plea bears a “heavy burden”); Harmason
v. Smith, 888 F.2d 1527, 1532 (5th Cir. 1989) (same).
4
law.2
A guilty plea is knowing and voluntary only if the defendant
understands the consequences of his plea. United States v. Young,
981 F.2d 180, 184 (5th Cir. 1992), cert. denied, 508 U.S. 955, and
cert. denied, 508 U.S. 980 (1993). “The consequences of a guilty
plea, with respect to sentencing, mean only that the defendant must
know the maximum prison term and fine for the offense charged.”
Ables v. Scott, 73 F.3d 591, 592-93 n.2 (5th Cir.), cert. denied,
116 S. Ct. 1696 (1996) (quoting United States v. Rivera, 898 F.2d
442, 447 (5th Cir. 1990)). At the plea hearing, the district court
informed Sanders of the maximum penalties for each count, and
Sanders stated that no one had made any further prediction or
promise as to the length of sentence he would receive. Thus,
Sanders’s plea was voluntary. See Young, 981 F.2d at 184.
III.
Sanders contends that his plea to the § 924(c) count was
involuntary because it lacked a factual basis in light of the
subsequent decision in Bailey v. United States, 116 S. Ct. 501
(1995). As Sanders did not present this fact-based claim to the
district court, we may not address it.
2
The government observes that the district court told Sanders that “the
Court can stack all of these sentences one after the other.” That statement is
potentially misleading, for it overstates the extent of the district court’s
discretion. Sanders does not contend that the court’s admonitions misled him,
however; instead, he complains only of the government’s representations.
5
IV.
Sanders contends that his counsel was ineffective on several
different fronts.
To prevail on an ineffective assistance of counsel claim,
[defendant] must show that his counsel’s performance was
deficient and that the deficiency prejudiced his defense.
In the context of a guilty plea, a defendant must show
“that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.”
Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995), cert. denied,
116 S. Ct. 957 (1996) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)) (citation omitted).
A.
Sanders contends that his attorney conducted an inadequate
pretrial investigation and failed to pursue various defenses. To
demonstrate prejudice from such alleged lapses, Sanders must show
either (1) that discovery of certain evidence would have changed
his counsel’s prediction regarding the outcome of trial or (2) that
a specific defense “likely would have been successful at trial.”
Id.
Sanders must identify specific evidence that counsel could
have discovered through an adequate investigation. See Anderson v.
Collins, 18 F.3d 1208, 1221 (5th Cir. 1994). His only specific
allegations of inadequate investigation relate to his attorney’s
6
failure to contest the admissibility of evidence seized from the
vacant home.
Sanders’s attorney filed a motion to suppress that evidence
but did not pursue it, because he concluded that Sanders lacked
standing to contest the search. As Sanders has not even attempted
to demonstrate that he possessed a reasonable expectation of
privacy in the vacant home, he has not shown that his attorney’s
failure to investigate the search constituted deficient perfor-
mance. Cf. United States v. Mendoza-Burciaga, 981 F.2d 192, 196
(5th Cir. 1992), cert. denied, 510 U.S. 936 (1993) (holding that
defendant lacked standing to contest search of house because he
neither owned nor occupied it).
Sanders’s allegations that his attorney failed to pursue other
defenses are conclusionary. As he has not even attempted to
demonstrate that those defenses likely would have been successful,
he has not shown that he is entitled to relief on this ground.
Sanders argues that his attorney’s failure to retain an expert
to check for fingerprints on the seized items and to confirm the
quantity and quality of drugs seized amounted to ineffective
assistance. Assuming, arguendo, that counsel’s performance was
deficient,3 Sanders has failed to show that he suffered prejudice:
He has presented no evidence that the government expert’s reports
3
But see Samuels, 59 F.3d at 529 (finding that attorney acted reasonably
in deferring to Drug Enforcement Administration report that substance was crack
rather than powder cocaine).
7
were incorrect, nor has he even requested an evidentiary hearing.
Thus, Sanders has not carried his burden of proving that failure to
procure expert testimony likely affected his decision to plead
guilty. See Belyeu v. Scott, 67 F.3d 535, 540 (5th Cir. 1995),
cert. denied, 116 S. Ct. 1438 (1996).
B.
Sanders alleges that his attorney testified against him at a
hearing on his motion to withdraw his plea, depriving him of his
rights to effective assistance of counsel and effective cross-
examination of the witnesses against him. Sanders filed a motion
to withdraw his plea prior to sentencing. At the beginning of the
sentencing hearing, the district court questioned Sanders and his
attorney regarding the motion and permitted the government to
examine both.
A defense attorney should withdraw from representation as soon
as he realizes that he will be a witness for the prosecution.
Failure to do so is a “conspicuous impropriety.” Uptain v. United
States, 692 F.2d 8, 10 (5th Cir. 1982) (quoting United States v.
Crockett, 506 F.2d 759, 761 (5th Cir.), cert. denied, 423 U.S. 824
(1975)).
In order to prevail on a claim of ineffective assistance of
8
counsel, a defendant must show actual prejudice.4 Ordinarily an
attorney can represent his client adequately on a motion to
withdraw a plea, even though the attorney’s own alleged ineffec-
tiveness forms the basis of the motion. United States v. Hender-
son, 72 F.3d 463, 465-66 (5th Cir. 1995).
On the facts of this case, we do not believe that the
attorney’s unwise decision to testify against his client caused
prejudice. In seeking to withdraw his plea, a defendant may not
rely solely upon his own allegations when they contradict his prior
sworn testimony. Bachynsky, 949 F.2d at 728; Harmason, 888 F.2d at
1532. As Sanders presented no corroborating evidence, he failed to
carry his burden as a matter of law, regardless of his attorney’s
testimony. Additionally, Sanders has not identified any deficient
actions or omissions of his attorney stemming from his dual
capacity at the plea hearing. Thus, he has not shown prejudice.
Sanders contends further that the district court denied him
the right to effective cross-examination of his attorney. Assuming
that such a violation occurred, we find it to be harmless.
“[D]enial of the opportunity to cross-examine an adverse witness
does not fit within the limited category of constitutional errors
that are deemed prejudicial in every case.” Delaware v. Van
4
See Beets v. Scott, 65 F.3d 1258, 1270 (5th Cir. 1995) (en banc) (stating
that when defendant claims counsel was ineffective because of conflict between
attorney’s duty of loyalty and self-interestSSsuch as the “lawyer’s status as a
witness”SShe must show actual prejudice), cert. denied, 116 S. Ct. 1547 (1996);
Crockett, 506 F.2d at 761 (finding error was harmless).
9
Arsdall, 475 U.S. 673, 682 (1986). “The correct inquiry is
whether, assuming that the damaging potential of the cross-
examination were fully realized, a reviewing court might nonethe-
less say that the error was harmless beyond a reasonable doubt.”
Id. at 684.
As explained above, Sanders failed to carry his burden of
presenting corroborating evidence. Thus, even assuming that
effective cross-examination would have shown that Sanders’s
attorney had a faulty memory and a motive to misrepresent, we find
that any error was harmless.5
In summary, the district court did not commit reversible error
in permitting Sanders’s attorney to testify regarding Sanders’s
motion to withdraw his plea. This is because (1) Sanders stood no
chance of succeeding on the motion even if his attorney did not
testify, and (2) Sanders has demonstrated no specific prejudice
arising from his attorney’s dual capacity as witness and lawyer.
C.
Finally, Sanders contends that his appellate counsel was
ineffective because he filed an Anders brief.6 Sanders’s attorney
5
See United States v. Cooks, 52 F.3d 101, 104 (5th Cir. 1995) (finding
error to be harmless because ample other evidence supported the decision); Texas-
Capital Contractors v. Abdnor, 933 F.2d 261, 270 (5th Cir. 1990) (same).
6
See Anders v. California, 386 U.S. 738, 744 (1967) (holding that
appellate counsel may request to withdraw if he finds appeal to be frivolous, but
must file brief identifying “anything in the record that might arguably support
the appeal”).
10
filed an adequate Anders brief explaining that there were no
nonfrivolous issues on appeal, and continued to represent Sanders
until we determined that the appeal was meritless. Moreover,
Sanders has not identified any nonfrivolous issues that his
attorney could have pursued on direct appeal. Thus, “[t]he
mandatory requirements of Anders were complied with in this case,
and [defendant] was not denied the assistance of effective
appellate counsel.” Moss v. Collins, 963 F.2d 44, 48 (5th Cir.
1992), cert. denied, 506 U.S. 1055 (1993).
AFFIRMED.
11