F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 2 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Nos. 98-3241
Plaintiff - Appellee, and 99-3080
v. (D. Kansas)
ROBERT DEE O’KANE, (D.C. No. CR-93-40007-02-DES)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Robert Dee O’Kane seeks a certificate of appealability which would enable
him to challenge the district court’s denial of his motion, filed pursuant to 28
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 2255, to vacate, set aside, or correct his sentence. For the reasons
discussed below, we deny O’Kane’s request for a certificate and dismiss his
appeal.
BACKGROUND
Between 1990 and 1993, O’Kane and several accomplices conducted a
series of armed bank robberies in Missouri and Kansas. After his arrest, O’Kane
eventually admitted involvement in a total of 23 robberies. O’Kane entered into a
plea agreement with prosecutors, under the terms of which he pled guilty to ten
counts of armed robbery of a federally insured bank, in violation of 18 U.S.C.
§§ 2, 2113(a), and 2113(d), and two counts of using and carrying a firearm during
and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c).
The government agreed not to prosecute O’Kane for his involvement in the other
13 robberies.
The district court sentenced O’Kane to a term of 262 months’ imprisonment
on each of the ten robbery counts, with those sentences to be served concurrently.
The court also sentenced O’Kane to terms of five years’ imprisonment on each of
the two firearms counts, with those sentences to be served consecutive to each
other and to the ten concurrent robbery sentences. O’Kane appealed the sentence
imposed by the district court, and we vacated the sentence and remanded the case
-2-
for resentencing. United States v. Okane , 52 F.3d 828 (10th Cir. 1995). On
remand, the district court imposed the identical sentence, but with additional
explanation, and we affirmed the sentence. United States v. Gieseke , 1996 WL
387379 (10th Cir. July 11, 1996).
On October 6, 1997, O’Kane filed his § 2255 motion, essentially advancing
three claims. First, O’Kane argues that his counsel was ineffective because he
did not challenge the government’s alleged failure to prove that the banks
involved were in fact insured by the Federal Deposit Insurance Corporation
(FDIC), a statutory element of the crime charged. See 18 U.S.C. § 2113(f).
Second, O’Kane argues that his counsel was ineffective because he did not
challenge the government’s alleged failure to demonstrate that the devices which
he was charged with using and carrying were actually “firearms” within the
meaning of 18 U.S.C. § 921(a)(3), a requirement for any violation of 18 U.S.C.
§ 924(c). Finally, O’Kane argues that his counsel was ineffective for allegedly
allowing him to be sentenced “to a term of imprisonment which exceeds an
authorized statutory maximum.” I R. Tab 204, at 7.
On March 10, 1998, the district court denied O’Kane’s motion, finding that
his first two claims were precluded by implicit admissions in his plea agreement,
and that his third claim failed because he had not been sentenced to a term of
imprisonment in excess of the statutory maximum. See I R. Tab 209.
-3-
On June 4, 1998, O’Kane telephoned the district court to inquire about the
status of his case. He was informed that his motion had been denied and his case
had been closed. At that point, he maintained that he had not yet received a copy
of the district court’s order disposing of his motion. While still on the telephone,
O’Kane requested that a copy of the order be sent to him. On June 15, 1998, the
district court received O’Kane’s motion for extension of time in which to file an
appeal, and on June 22, 1998, construing it as a motion filed under Fed. R. App.
P. 4(b)(4), denied it because a “district court cannot . . . extend the period in
which to file a notice of appeal beyond the thirty days provided for” in Rule 4(b).
I R. Tab 212, at 4.
O’Kane, in Appeal No. 98-3241, timely appealed from the district court’s
order refusing to allow him an extension of time to file an appeal. In this appeal,
he also challenged the district court’s denial of his motion on the merits. We
reversed the district court in part, holding that the district court had not addressed
whether O’Kane’s motion for an extension of time met the criteria set forth in
Fed. R. App. P. 4(a)(6). United States v. O’Kane , No. 98-3241, slip op. (10th Cir.
Jan. 7, 1999); I R. Tab 217. Because we do not have jurisdiction to hear untimely
appeals, we declined to address the merits of O’Kane’s appeal from the denial of
his § 2255 motion until the district court made its Rule 4(a)(6) determination.
-4-
On remand, the district court held that the requirements of Rule 4(a)(6)
were indeed met here, and accordingly reopened the time to file an appeal from
the order adjudicating O’Kane’s case on the merits. O’Kane, in Appeal No.
99-3080, then filed a timely notice of appeal.
Thus, the two consolidated appeals present the same issues. The portions
of 98-3241 that remain, as well as 99-3080 in its entirety, both consist of a
challenge to the district court’s order denying O’Kane’s motion on its merits.
DISCUSSION
O’Kane phrases all three of his arguments challenging the district court’s
denial of his § 2255 motion as ineffective assistance of counsel claims. 1
To
establish a claim of ineffective assistance of counsel, the defendant must show
that his attorney’s representation “fell below an objective standard of
reasonableness,” and that “the deficient performance prejudiced the defense.”
1
In his response brief below, O’Kane maintains that he is not merely
arguing that his counsel was ineffective, but is raising other claims as well. See I
R. Tab 208, at 2. We are required to construe the pleadings of pro se litigants
liberally, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), and we will
construe O’Kane’s claims as ineffective assistance of counsel claims, despite his
protestations. This is because O’Kane did not raise these issues on direct appeal,
and, with the exception of ineffective assistance of counsel claims, see United
States v. Galloway , 56 F.3d 1239, 1241 (10th Cir. 1995) (en banc), “[s]ection
2255 motions are not available to test the legality of matters which should have
been raised on direct appeal,” United States v. Cook , 997 F.2d 1312, 1320 (10th
Cir. 1993).
-5-
Strickland v. Washington , 466 U.S. 668, 687, 688 (1984). The defendant bears
the burden of establishing both deficient performance and prejudice. See
Brecheen v. Reynolds , 41 F.3d 1343, 1365 (10th Cir. 1994).
With regard to O’Kane’s first two claims of error, the district court held
that because O’Kane pled guilty to the bank robbery and firearms charges, he had,
in essence, “admitt[ed] all material facts alleged in the charge.” United States v.
Kelsey , 15 F.3d 152, 153 (10th Cir. 1994); see also United States v. Broce , 488
U.S. 563, 570 (1989) (stating that a guilty plea is “an admission that [the
defendant] committed the crime charged against him” (citation omitted)).
O’Kane, however, argues that his counsel failed to inform him that the
government had to prove that the banks he robbed were federally insured, or that
the government had to prove that the devices which he was charged with using
and carrying were actually “firearms” within the statutory definition. O’Kane
maintains that had he known that the government bore these burdens, he would
not have pled guilty to the offenses. See I R. Tab 208, at 4.
The two-part test of Strickland “applies to challenges to guilty pleas based
on ineffective assistance of counsel.” Hill v. Lockhart , 474 U.S. 52, 58 (1985).
In order to satisfy the performance portion of the Strickland test in the plea
bargain context, the defendant must (1) show that the element of the crime which
his attorney allegedly neglected to discuss with him was a critical element of the
-6-
crime; (2) overcome the presumption that his attorney explained this element to
him at some other time prior to his guilty plea; and (3) demonstrate that, prior to
his guilty plea, he did not receive notice of this element from any other source.
Miller v. Champion , 161 F.3d 1249, 1255 (10th Cir. 1998). In order to satisfy the
prejudice portion of this test, O’Kane “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.” Hill , 474 U.S. at 59 (footnote omitted);
see also Miller , 161 F.3d at 1253.
O’Kane’s second claim fails the first portion of the Strickland test. Even
assuming, arguendo, that possession of a “firearm,” as defined in 18 U.S.C.
§ 921(a)(3), is a critical element of a firearm violation under 18 U.S.C. § 924(c),
and that his attorney did not ever explain this element of the offense to him, the
record demonstrates that O’Kane was aware that possession of a “firearm” was an
element of this offense. The plea agreement executed by O’Kane states that
O’Kane “admits his guilt . . . of . . . using a firearm in relation to the bank
robbery of Fidelity Gage Center Bank . . . and . . . First Continental [Bank].” I R.
Tab 214, Attachment. Thus, O’Kane himself was aware that the charge against
him included the use of a firearm, and he signed a plea agreement admitting that
he used a firearm in connection with two enumerated robberies. Therefore,
O’Kane’s second claim fails.
-7-
O’Kane’s first claim, even if it could survive the performance portion of
the Strickland test, founders on the prejudice portion of the test. As noted above,
O’Kane must at least contend that he would have elected not to plead guilty had
he known about this element of the offense. However, we have stated that a
defendant’s facial contention that he would have proceeded to trial is not enough;
the defendant must also show that “the outcome of the proceedings ‘likely would
have changed.’” Miller , 161 F.3d at 1256-57 (quoting Hill , 474 U.S. at 59).
O’Kane cannot make this showing. If O’Kane’s counsel had required the
government to present some evidence showing that the banks robbed by O’Kane
were FDIC insured, the government could easily have done so. Indeed, O’Kane
attaches to his appellate brief in this case correspondence he received, upon
request, from the FDIC. On August 7, 1998, O’Kane sent a letter to the FDIC,
requesting information about whether the banks he robbed were in fact FDIC
insured banks. On September 16, 1998, the FDIC replied that “[t]hose banks
were insured on the dates you indicated in your letter.” 2
Appellant’s Br.,
2
O’Kane erroneously emphasizes one sentence in the FDIC’s letter:
“Federal deposit insurance does not cover loss of deposits due to bank robberies.”
Appellant’s Br., Attachment, at 1. O’Kane interprets this to mean that because
the FDIC refused to reimburse the banks for his robberies, the “deposits” he
robbed were not insured, and therefore the government cannot prove this element
of the crime. O’Kane misinterprets the statute. In order for the federal statutory
requirements to be met, the bank robbed must be an “institution the deposits of
which are insured by the [FDIC].” 18 U.S.C. § 2113(f). This means only that the
(continued...)
-8-
Attachment, at 1. Apparently, it would not have been difficult for the government
to prove that the deposits of the banks robbed by O’Kane were generally insured
by the FDIC. O’Kane cannot show that his counsel’s performance was
constitutionally deficient merely because counsel, at the plea negotiations, did not
require the government to go through the motions of proving this seemingly
evident element of the crime. O’Kane cannot bear his burden of showing that the
outcome of the proceedings would have been different if his counsel had required
the government to prove that the banks were FDIC insured.
O’Kane’s third claim of ineffective assistance of counsel is that his counsel
was ineffective because he failed to take issue with O’Kane’s sentence on the
bank robbery counts, which O’Kane alleges is longer than the statutory maximum.
This claim was effectively disposed of by the district court in this case, and we
adopt its disposition. The district court stated as follows:
The defendant pled guilty to ten counts of armed bank robbery all in
violation of 18 U.S.C. §§ 2113(a) and 2113(d). [Section] 2113(d)
2
(...continued)
bank’s deposits must be generally insured against bank failure by the FDIC; this
does not require that the FDIC insure individual robberies at that particular bank.
See United States v. Bindley , 157 F.3d 1235, 1238-39 (10th Cir. 1998) (statutory
element proved by testimony of bank teller that the bank was FDIC insured);
United States v. Brunson , 907 F.2d 117, 118-19 (10th Cir. 1990) (statutory
element proved by testimony of bank branch manager that the bank was insured
by the FSLIC). Indeed, were O’Kane’s interpretation of the statute correct, the
statute would be entirely impotent, because the FDIC does not cover any losses
stemming from individual bank robberies.
-9-
provides for a maximum imprisonment of twenty-five years. The
defendant’s sentence amounts to 21.8 years’ imprisonment and four
years’ supervised release. The term of supervised release is not
counted as imprisonment for purposes of the statutory maximum
sentence. The sentencing guidelines treat “a term of supervised
release to follow imprisonment” as a[n] independent element of a
defendant’s sentence, not encompassed in calculation of months of
imprisonment. USSG § 5D1.1(a), 5D1.1(b). Even upon revocation
of his supervised release, however, the defendant is only subject to a
maximum of three additional years[’] imprisonment, which, when
added to 21.8 years, still falls short of the statutory maximum. See
18 U.S.C. § 3583(e)(3). Moreover, “[t]he sentencing guidelines
plainly contemplate the imposition of terms of supervised release
that, if added to the relevant term of imprisonment, would extend the
total sentence well beyond the maximum number of months in the
applicable guideline range.” United States v. Gilbreath , 72 F.3d
139[, 1995 WL 739448, at *1] (10th Cir. [Dec. 14,] 1995).
Defendant’s counsel, therefore, had no basis to object to defendant’s
sentence on the grounds that it exceeded the statutory maximum.
I R. Tab 209, at 6-7. Thus, even if O’Kane’s counsel had objected to O’Kane’s
sentence on the grounds that it exceeded the statutory maximum, that objection
would almost certainly have been overruled. Therefore, O’Kane cannot show that
he was prejudiced by his attorney’s failure to make such an objection.
CONCLUSION
For the reasons stated above, we conclude that O’Kane has failed to make a
substantial showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2). Accordingly, we DENY O’Kane’s request for a certificate of
appealability and DISMISS his appeal.
-10-
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-11-