PUBLISH
UNITED STATES COURT OF APPEALS
Filed 10/7/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5100
ROBERT L. GLOVER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 95-5058
v.
DAVID ZALE WANN,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. Nos. 94-C-995-E and 94-C-757-E)
Submitted on the briefs:
Robert Glover and David Zale Wann, pro se.
Stephen C. Lewis, United States Attorney, David E. O’Meilia and James L.
Swartz, Assistant United States Attorneys, Tulsa, Oklahoma, for Plaintiff-
Appellee.
Before EBEL, BARRETT, and HENRY, Circuit Judges.
HENRY, Circuit Judge.
Defendants David Wann and Robert Glover appeal from the joint denial of
their substantially similar motions to vacate, set aside, or correct sentence under
28 U.S.C. § 2255. The district court denied relief primarily on waiver grounds,
citing defendants’ failure to raise their objections at sentencing. For the reasons
that follow, we reverse and remand for further proceedings. 1
I. Common Background
These companioned appeals arise out of a single criminal prosecution in
which defendants pled guilty to a two-count indictment charging conspiracy to
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore submitted without oral argument.
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distribute, and aiding and abetting the distribution of, methamphetamine. See 21
U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2. The type of methamphetamine involved
was never identified during the plea proceedings. There was nothing improper in
this, as the operative statutes do not distinguish among types of
methamphetamine, and, consequently, “[t]o convict a defendant, the prosecution
must prove [or the defendant must admit] . . . only that the substance was
generically methamphetamine.” United States v. Deninno, 29 F.3d 572, 579-80
(10th Cir. 1994), cert. denied, 115 S. Ct. 1117 (1995).
In contrast to their conflation for guilt-phase purposes, “[t]he sentencing
difference between D-methamphetamine and L-methamphetamine is significant.” 2
Id. at 579 & n.3 (discussing enhanced base offense level assigned to
D-methamphetamine). Moreover, at the sentencing stage, “[s]ince the criminal
offense makes no distinction between the types of methamphetamine, it cannot be
assumed that [defendants] w[ere] convicted of [distribution] of
D-methamphetamine.” Id. at 580. Thus, even after defendants were formally
convicted, the government bore the “burden of proof and production” to show by
2
We note that, “as of November 1, 1995, this distinction between
methamphetamine types has been eliminated, and L-methamphetamine is now
treated the same as D-methamphetamine under the Guidelines.” United States v.
Watkins, 912 F. Supp. 417, 419 n.4 (E.D. Ark. 1996)(discussing U.S.S.G. App. C
Amendment to Drug Equivalency Tables in Commentary to § 2D1.1).
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a preponderance of the evidence the type of methamphetamine involved in their
offenses. Id.
We emphasize that neither the indictments nor the pleas in this case went
beyond the requisite statutory elements by specifying the type of
methamphetamine involved; if they had, subsequent (re)litigation of the issue
might well have been precluded, see United States v. Allen, 24 F.3d 1180, 1183
(10th Cir.)(guilty plea “admits both the acts described in the indictment and the
legal consequences of those acts”), cert. denied, 115 S. Ct. 493 (1994); United
States v. Morrison, 938 F.2d 168, 171 (10th Cir. 1991)(“[Defendant] cannot
[later] challenge the factual basis of the charge to which he pleaded guilty.”).
Under these circumstances, the government’s newly raised contention that
defendants’ (generic) pleas obviated the need for substance-specific proof at
sentencing is meritless.
The government fails to distinguish between guilt-phase issues, which are
reasonably deemed renounced by the later voluntary act of pleading guilty, and
independent sentencing errors, which, arising only after the plea, cannot be
deemed abandoned in the same common-sense way. Surely, for example, a
defendant who has pled guilty to a drug trafficking offense, has not thereby lost
the right to insist that any subsequently considered enhancement predicates, such
as career offender status or firearm use, be proven by the government before
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imposition of the corresponding enhanced sentence. Indeed, if the prospective
waiver of sentencing error suggested by the government were adopted as a general
matter, a pleading defendant effectively would have no enforceable right to a
valid sentence--a “clearly untenable” and “patent[ly] anomal[ous]” result. 3 Green
v. Thomas, 57 F.3d 956, 959 (10th Cir. 1995)(rejecting similarly prospective
waiver principle in habeas context, because it would have imposed on the
petitioner “the unprecedented status of a constitutional orphan, denied protection
against yet unknown and unincurred deprivations”). Even a brief perusal of this
court’s burgeoning case law on the sentencing guidelines would reveal numerous
decisions considering the objections of pleading defendants, including those
convicted of generic methamphetamine offenses. See, e.g., United States v.
3
The sole authority relied on by the government is an unpublished decision
of this court, which, without addressing Deninno, held that “[b]y pleading guilty
[to generic methamphetamine charges], [defendant] waived his right to claim that
the sentence [improperly enhanced for unproven involvement of
D-methamphetamine,] was based on inaccurate information. United States v.
Broce, 488 U.S. 563, 569 (1989)(collateral attack on guilty plea foreclosed when
plea is counseled and voluntary).” United States v. Stewart, No. 94-1551, 1995
WL 539473, at *1 (10th Cir. Aug. 31, 1995). The Supreme Court’s holding in
Broce, that a valid guilty plea precludes (most) guilt-phase attacks on the pleading
defendant’s conviction, in no way suggests a prospective waiver of subsequent
and independent sentencing error. Consequently, for the reasons discussed above,
we reject the approach followed in Stewart, see 10th Cir. R. 36.3 (unpublished
decision is not binding circuit precedent), though, in light of significant factual
differences, our decision here does not entail the conclusion that the result in
Stewart should have been different. See infra n.4.
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Lande, 40 F.3d 329, 330-31 (10th Cir. 1994), cert. denied, 115 S. Ct. 1988 (1995).
In the criminal proceedings below, both defendants were sentenced as if
they had been trafficking in D-methamphetamine, without any proof or findings
regarding the nature of the methamphetamine actually involved in their offenses.
While defendants, proceeding pro se, framed their respective § 2255 motions
somewhat differently, correction of this basic error is their common aim.
The government responded to the motions in the district court by arguing
that defendants’ objections regarding methamphetamine classification were
waived by counsel’s silence on the matter at sentencing (not to be confused with
the argument for waiver-by-plea under Stewart discussed above), citing this
court’s “all fours” holding to that effect in Deninno. See id. (“By failing to make
any objections to the [unsubstantiated] scoring of the methamphetamine [as
D-methamphetamine], [the defense] has in effect waived the issue for appeal.”).
The district court agreed and denied both defendants’ illegal-sentence claims
under Deninno’s waiver rule.
We certainly approve the district court’s assiduous enforcement of circuit
precedent regarding the waiver of unpreserved sentencing objections. However,
defendants also raise claims of ineffective assistance of counsel that are not
undermined, but rather bolstered, by just such prejudicial consequences of
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counsel’s omissions at sentencing. We turn now to these latter claims, discussing
separately the distinct procedural circumstances of each defendant below.
II. Defendant Wann
Mr. Wann was sentenced to two concurrent prison terms of 120 months,
followed by five years’ supervised release. He did not take an appeal. The
present § 2255 motion, his first, challenges his sentence on the ground that
defense counsel did not invoke, the district court did not enforce, and the
prosecution did not satisfy, the government’s burden of proof regarding the type
of methamphetamine upon which his sentence was based. Since we are here
concerned only with the ineffective assistance aspect, a matter properly left to
collateral proceedings, our analysis of Mr. Wann’s claim is not complicated by
procedural bar concerns. See United States v. Galloway, 56 F.3d 1239, 1240-41
(10th Cir. 1995).
The district court rejected Mr. Wann’s ineffective assistance claim under
the controlling performance-and-prejudice standard of Strickland v. Washington,
466 U.S. 668, 686-87 (1984)(requiring objectively deficient performance serious
enough to undermine adversarial process and prejudice severe enough to deprive
defendant of a fair trial). See also Lockhart v. Fretwell, 506 U.S. 364, 369
(1993). Specifically, the district court held:
While Wann may meet his burden on the prejudice prong of the test,
his assertions are not sufficient to meet the burden of demonstrating
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that his counsel was not reasonably effective. . . . He states in his
original [M]otion to Correct Sentence that “No one involved in [the]
sentencing process at the time knew about or understood . . . the
sentencing guidelines difference as to the two related substances both
generically methamphetamine.” Based on this lack of knowledge, the
Court concludes that Wann’s counsel was not ineffective in failing to
raise the issue.
R. doc. 122 at 2-3. We cannot agree with the reasoning and conclusion stated.
Our analysis is guided both by the Supreme Court’s broad formulation in
Strickland and by this court’s particularized application thereof to analogous facts
in United States v. Kissick, 69 F.3d 1048 (10th Cir. 1995). When counsel has
unwittingly relieved the government of its burden of proof, 4 particularly when the
evidence of record does not satisfy that burden, it is fair to say counsel has “so
undermined the proper functioning of the adversarial process that [it] cannot be
relied on as having produced a just result.” Strickland, 466 U.S. at 686. This is,
of course, “[t]he benchmark for judging any claim of ineffectiveness.” Id.; see
also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)(“The essence of an
ineffective-assistance claim is that counsel’s unprofessional errors so upset the
adversarial balance between defense and prosecution that the [proceeding] was
4
The district court and the parties proceeded on the premise that counsel’s
failure to object to the unsubstantiated D-methamphetamine sentence reflected a
purely unintentional error of ignorance. Because our record contains nothing to
suggest any tactical motive for the omission, such as the cautious preservation of
an otherwise advantageous plea bargain (as was present in Stewart, see supra n.3),
we do not question the accepted characterization of counsel’s conduct.
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rendered unfair and the [result] rendered suspect.”). Thus, we recently held in
Kissick that “[a]n attorney’s failure to challenge the use of a prior conviction to
classify the defendant as a career offender [for sentence enhancement] when that
prior conviction is facially insufficient to satisfy [the government’s burden under
the pertinent guideline] . . . constitutes deficient performance under Strickland.”
Kissick, 69 F.3d at 1056 (characterizing sentencing challenge overlooked by
counsel as “dead-bang winner”). We see no principled distinction between the
professional omissions in Kissick and the instant case.
Accordingly, we reject the district court’s holding that counsel’s conduct at
sentencing, though in error, was nevertheless within the range of reasonable
professional competence. The illegal-sentence issue counsel failed to raise was
clearly meritorious under the existing guidelines and elementary burden-of-proof
principles, surely both matters within the requisite expertise of a practicing
member of the criminal defense bar. See United States v. Acklen, 47 F.3d 739,
743 (5th Cir. 1995)(“Merely reading the commentary to the rule would have
alerted counsel to the potentially significant impact on [methamphetamine]
sentencing that the type of isomers involved can have.”). In our view, Mr.
Wann’s belief that counsel’s ignorance was shared by everyone at sentencing,
which was emphasized by the district court in the passage quoted above, simply
reflects his personal interpretation of the prejudice manifest at sentencing, i.e.,
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that counsel’s error directly translated into an unsubstantiated sentence without
any corrective intervention.
Defense counsel was the legal representative retained and duty-bound to
pursue Mr. Wann’s interests with professional zeal; the fact that others in neutral
or adversarial positions did not intervene on Mr. Wann’s behalf implies nothing
about the prevalence or excusability of counsel’s ignorance of the law favorable
to his client. Indeed, if inferences in this regard were appropriate, the prejudice
prong of the Strickland test, which requires consequential error (i.e., serious legal
mistakes uncorrected by anyone else involved in the proceeding), would impose a
catch-22 whenever counsel’s deficient performance had a professional audience,
as in any adversarial court proceeding. Under such a view, even those overlooked
“dead-bang winners” indicative of professional incompetence would, if
prejudicial, simply reflect common, and hence presumably reasonable,
professional limitations.
As our discussion thus far has perhaps already suggested, we also deem
counsel’s nonfeasance to have been prejudicial in the Strickland sense. “[W]hen
counsel’s constitutionally deficient performance results in the defendant’s
improper classification . . . and when that improper classification results in a
significantly greater sentence, the prejudice element of Strickland is satisfied.”
Kissick, 69 F.3d at 1056. Mr. Wann alleges, without challenge on our record, that
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his sentencing range was improperly enhanced from 63 - 78 months to 110 - 134
months on each methamphetamine count. That is a significant difference
reflecting cognizable prejudice. Cf. id.
That said, we acknowledge that the true character of the methamphetamine
involved in Mr. Wann’s offenses has never been determined. Thus, just as in
Kissick where the record could not confirm or refute the requisite nature of the
prior offense used to enhance the defendant’s sentence, “the record before us does
not allow a definitive conclusion as to the performance of [defense] counsel and
the impact of that performance on the sentence received by Mr. [Wann].”
Id. (emphasis added). “Because of the significant impact of the [substance
classification] on sentencing and because the nature of the [substance] was not
specifically addressed by the district court in either the initial sentencing or the
Section 2255 proceedings, we conclude that this matter should be remanded to the
district court.” Id. at 1057. The district court should determine, if possible, the
type of methamphetamine involved in Mr. Wann’s offenses. If the government
can establish that the substance was in fact D-methamphetamine, 5 Mr. Wann
5
While we hold, following Kissick, 69 F.3d at 1057, that counsel’s deficient
representation should not relieve the government of its original obligation to
substantiate any enhanced sentence imposed, we emphasize that this burden is not
unduly onerous in the present circumstances. As already noted, the government
need prove the factual prerequisites for sentencing only by a preponderance of the
evidence. Moreover, if the substance or mixture involved in the offense
(continued...)
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obviously would not be entitled to resentencing; otherwise, however, it must be
concluded that defense counsel’s failure to challenge Mr. Wann’s sentence in this
regard satisfies the performance and prejudice elements of Strickland and,
consequently, that Mr. Wann’s enhanced sentence cannot stand. Kissick, 69 F.3d
1057.
III. Defendant Glover
Our substantive discussion of Mr. Wann’s ineffective assistance claim is
equally pertinent with respect to Mr. Glover (who received concurrent 151-month
prison terms, and five years’ supervised release, on the methamphetamine counts).
However, certain procedural complications attend the disposition of Mr. Glover’s
§ 2255 motion. First, the government maintains that the motion, which lists
“Illegal Sentence” as the sole ground for relief, see R doc. 106 at 6, failed to raise
the issue of counsel’s ineffectiveness. Mr. Glover did, however, cite counsel’s
nonfeasance at sentencing as part and parcel of the principal claim asserted: “At
no time during the Sentencing proceeding did the Government, Court, or my
retained Attorney ascertain what type of methamphetamine was the drug:
5
(...continued)
contained any detectable amount of D-methamphetamine, the defendant may be
sentenced at the higher level. See United States v. Decker, 55 F.3d 1509 (10th
Cir. 1995). Finally, even “[w]hen . . . no direct evidence of the drug’s chemical
composition or the method of its manufacture is available, circumstantial
evidence may be sufficient to determine which isomer is involved.” United States
v. Dudden, 65 F.3d 1461, 1471 (9th Cir. 1995); see, e.g., Lande, 40 F.3d at 331.
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D-Methamphetamine or L-Methamphetamine.” Id. In Osborn v. Shillinger, 997
F.2d 1324 (10th Cir. 1993), this court was confronted with a habeas petition
which, like Mr. Glover’s § 2255 motion, tied secondary allegations of counsel
misconduct to a distinct “primary” claim. Specifically, the petitioner bolstered an
involuntary-plea claim by alleging that “error[] by the court and his
counsel . . . also coerced him into making the plea.” Id. at 1326. This court held
that the adequacy of counsel’s representation had been sufficiently raised by the
petition: “Though [petitioner] does not directly state a claim for ineffective
counsel . . ., we must construe his claims liberally because he appears pro se. On
that basis, we will address his contentions of counsel failure as ineffective
assistance.” Id. at 1328 n.1 (citations omitted). We follow the same course here.
A more formidable procedural obstacle to Mr. Glover’s motion may have
been overlooked by the government. The present proceeding is, by Mr. Glover’s
own admission, his second attempt to obtain relief under § 2255. See R doc. 106
at 3-5. If, once given an opportunity to address the potential abuse-of-procedure
problem evident here, Mr. Glover is unable to justify his earlier omission of the
ineffective-assistance claim, his motion may be subject to dismissal on that basis.
We leave the engagement and resolution of this matter to the sound discretion of
the district court on remand. See generally Sanders v. United States, 373 U.S. 1,
18 (1963); Hawkins v. Evans, 64 F.3d 543, 545-46 (10th Cir. 1995).
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The judgment of the United States District Court for the Northern District
of Oklahoma denying defendants relief under 28 U.S.C. § 2255 is REVERSED,
and the cause is REMANDED for further proceedings consistent with this order
and judgment.
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