REVISED November 29, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-50011
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VITERBO HERNANDEZ, JR., also known as Luis Roland Hernandez,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
November 21, 2000
Before DUHÉ and PARKER, Circuit Judges, and FOLSOM,1 District
Judge.
PER CURIAM:
Appellant Viterbo Hernandez, Jr. (“Hernandez”) appeals the
district court’s denial of his federal habeas petition. In his
petition, Hernandez argued, among other things, that the district
court’s failure to warn him that his federal term of imprisonment
would run consecutive to his anticipated state sentence rendered
his federal guilty plea involuntary. We granted Hernandez a
1
District Judge of the Eastern District of Texas, sitting by
designation.
certificate of appealability as to that issue only. Finding no
error, we affirm.
BACKGROUND
On November 9, 1993, while in the custody of the State of
Texas awaiting trial on charges of distribution of marijuana,
Hernandez was indicted for conspiracy to possess with intent to
distribute the same marijuana in violation of 21 U.S.C. §§ 841 &
846. On December 6, 1993, a magistrate judge, via writ of habeas
corpus ad prosequendum, ordered Hernandez’s transfer into federal
custody. On April 22, 1994, pursuant to a plea agreement with
the government, Hernandez pled guilty to the federal charge in
district court. The district court, on September 16, 1994,
sentenced Hernandez to 188 months’ imprisonment followed by five
years’ supervised release. The court did not indicate whether
Hernandez’s federal term of imprisonment was to run concurrent
with or consecutive to any forthcoming state term of
imprisonment. Hernandez was thereafter transferred into state
custody, where, on October 5, 1994, pursuant to another plea
agreement, he pled guilty to the pending state charges. The
state court subsequently sentenced Hernandez to a 20-year term of
imprisonment to run concurrent with his federal term.
Sometime thereafter, Hernandez discovered that he was not
receiving credit against his federal term of imprisonment for
time served in state prison. On August 26, 1996, Hernandez moved
2
the federal district court for an order that would make his
federal sentence run concurrent with his state sentence; in the
alternative, Hernandez sought an order delivering him into
federal custody so that he could begin his federal term of
imprisonment. Hernandez’s motion was denied November 5, 1996.
On February 26, 1997, Hernandez filed a motion to vacate,
set aside, or correct his sentence under 28 U.S.C. § 2255. In a
subsequent supporting brief, and for the first time in federal
court, Hernandez argued that his state-court attorneys reached an
agreement with state and federal prosecutors, the substance of
which was that, in exchange for his guilty pleas, Hernandez would
serve his federal term of imprisonment while his state term ran
concurrently. Hernandez argued that his attorneys’ failure to
advise him that he could receive a consecutive federal sentence
constituted ineffective assistance of counsel. Hernandez also
argued that the district court’s failure to warn him that his
federal sentence might run consecutive to his state sentence
rendered his federal plea involuntary. He contended that had he
known of this possibility, he would not have pled guilty to the
federal charges.
In support of his petition, Hernandez offered the affidavit
of state prosecutor Susan Brown, who stated that she “had
numerous discussions” with Hernandez’s state-court attorneys and
federal prosecutors. Brown stated that “all parties came to an
agreement” that Hernandez would be permitted to serve his federal
3
sentence while his state sentence ran concurrently. She further
stated that state prosecutors were advised that, to effectuate
the agreement, Hernandez had to enter his federal plea first and
that, to this end, entry of Hernandez’s state plea was continued
several times. Hernandez also offered the affidavit of one of
his state-court attorneys, Aron Pena, who stated that it was the
“understanding of everyone concerned” that Hernandez would be
permitted to receive credit against his state sentence while
serving his federal term of imprisonment.2
On August 28, 1998, the district court concluded that, under
the terms of Hernandez’s federal plea agreement, all issues
raised in his § 2255 petition were waived with one exception:
whether the court’s failure to warn Hernandez that his federal
sentence would run consecutive to his state sentence rendered his
federal plea involuntary. As to that issue alone, the district
court ordered an evidentiary hearing, which was conducted
December 1, 1998.
At the hearing, Hernandez restated the terms of the
purported agreement between his state-court attorneys and state
and federal prosecutors. Hernandez admitted that his federal
plea agreement was silent as to whether his federal sentence
2
In early 1997, Hernandez sought relief in state court, and on
March 3, 1998, with the assistance of state prosecutors, an order of dismissal
was issued with respect to the state charges. Thereafter, having spent
approximately five years in state prison, Hernandez was delivered into federal
custody to begin his federal sentence.
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would run consecutive to or concurrent with his state sentence.
He also acknowledged that he had no discussions with his federal-
court attorney, Ron Moody, concerning the alleged sentencing
agreement. Further, the parties stipulated that Moody had no
knowledge of any agreement that would have Hernandez’s federal
sentence run concurrent with his state sentence. Hernandez’s
other state-court attorney, Antonio Balderas, testified that he
did not remember whether he discussed the purported sentencing
scheme with federal prosecutors. Likewise, federal prosecutor
Mark Frazier testified that he remembered having only vague
discussions with state prosecutors and Hernandez’s state
attorneys concerning the possibility of a concurrent sentence.
On December 22, 1998, the district court denied Hernandez’s
§ 2255 motion, finding that the federal government made no
promises with respect to Hernandez’s federal term of
imprisonment. That day, the district court entered final
judgment; Hernandez’s timely request for a certificate of
appealability (“COA”) was later denied. We granted Hernandez a
COA solely on the issue of whether the “district court’s failure
to inform him that his state and federal sentences might run
consecutively” rendered his guilty plea involuntary.
DISCUSSION
I.
5
The validity of a guilty plea is a question of law we review
de novo. See United States v. Amaya, 111 F.3d 386, 388 (5th Cir.
1998). “A guilty plea will be upheld on habeas review if entered
into knowingly, voluntarily, and intelligently.”3 Montoya v.
Johnson, 226 F.3d 399, 404 (5th Cir. 2000). To be knowing and
intelligent, the defendant must have “a full understanding of
what the plea connotes and of its consequence.” See Boykin v.
Alabama, 395 U.S. 238, 244 (1970). The defendant need only
understand the direct consequences of the plea; he need not be
made aware every consequence that, absent a plea of guilty, would
not otherwise occur. See Trujillo v. United States, 377 F.2d
266, 266 (5th Cir.), cert. denied, 389 U.S. 899 (1967).
The district court’s authority (or lack thereof) to order
consecutive or concurrent terms of imprisonment is described in
18 U.S.C. § 3584. We have not before considered whether a
defendant must be advised of § 3584's effect. Prior to September
1, 1987 (§ 3584's effective date), 18 U.S.C. § 3568 required that
a federal term of imprisonment run consecutive to any other
3
The terms “voluntary” and “knowing” are frequently used
interchangeably, although, strictly speaking, the terms embody different
concepts. Compare 1A Charles Alan Wright, Federal Practice and Procedure §
172, 142-44 (3d ed. 1999)(stating a plea of guilty is not voluntary if it is
induced by threats, misrepresentation, unfulfilled promises, or promises of an
improper nature), with id. § 173, 171-73(stating that a plea is not knowing
unless, among other things, defendant understands “what the maximum possible
penalty is, including any potential fine and the effect of any special parole
or supervised release term”).
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sentence to which a defendant was subject.4 In United States v.
Myers, 451 F.2d 402 (9th Cir. 1972), the Ninth Circuit held that
§ 3568 was a direct consequence of a guilty plea, the effect of
which a defendant must be advised. In that case, defendant
(Myers) pled guilty to and was sentenced on federal charges while
in state custody awaiting trial on separate charges. Myers was
subsequently convicted of the state charges; after he was paroled
from state prison, he began his federal term but was not credited
for his state time. Myers filed a habeas petition in federal
court, alleging that § 3568 was a direct consequence of his
guilty plea and that the district court’s failure to advise him
of its effect rendered his plea involuntary. The Ninth Circuit
agreed. The court noted that under § 3568, the district court
was “powerless” to impose a concurrent federal sentence, making
the “impact of § 3568 [] a factor that necessarily affected
Myers’ maximum imprisonment.” Id. at 404. Since “at all
pertinent times” the district court was aware that Myers was in
state custody, the court concluded that the district court was
required to advise Myers that he would not begin his federal
sentence until he was received in federal custody. Id.
The Ninth Circuit, however, stood alone in requiring that a
defendant be advised of § 3568's effect. Cobb v. United States,
4
Section 3568 provided, in relevant part: “The sentence of
imprisonment of any person convicted of an offense shall commence to run from
the date on which such person is received at the penitentiary, reformatory, or
jail for service of such sentence. . . .”
7
583 F.2d 695 (4th Cir. 1978)(per curiam), presented a case with
facts virtually identical to those in Myers: defendant (Cobb) was
delivered from state custody (where he was awaiting trial on
state charges) into federal hands to face charges in federal
court. Cobb pled guilty to and was sentenced on the federal
charges and was transferred back to state custody. Cobb
thereafter pled and was sentenced on the state charges and began
his state term of imprisonment. Like the defendant in Myers,
Cobb moved the court to permit withdrawal of his federal plea on
the grounds that it was rendered involuntary by the district
court’s failure to advise of § 3568's effect. The Fourth Circuit
agreed with the Ninth Circuit’s conclusion in Myers that § 3568
was effective immediately upon Cobb’s return to state custody and
that the district court was without power to order concurrent
sentences. Id. at 696-97. But the Fourth Circuit concluded that
the statue was not a direct consequence of the guilty plea since
it merely “postponed commencement” of the federal terms of
imprisonment and “did nothing to increase them.” Id. at 697.
Likewise, the Third Circuit in Kincade v. United States, 559
F.2d 906 (3d Cir.)(per curiam), cert. denied, 434 U.S. 970
(1977), a case with facts in accord with those in Cobb and Myers,
concluded that § 3568's effect was not a consequence of which
defendant must be advised. In Kincade, the court stated:
[C]onsequences no matter how unpalatable which are not
related to the length or nature of the federal sentence
cannot be considered direct consequences. In the
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instant case, section 3568 had no effect whatever upon
the length of the federal sentence. The statute did
operate to increase the length of Kincade’s overall
incarceration, but not by modifying his federal
punishment.
Id. at 909 (footnote omitted). We have several times reached the
same result as the Third and Fourth Circuits with respect to §
3568, though our reasoning was consistently less expressive. See
Barbee v. Ruth, 678 F.2d 634, 635 (5th Cir.)(“The consequences of
guilty plea, with respect to sentencing, mean only that the
defendant must know the maximum prison term and fine for the
offense charged.”), cert. denied, 459 U.S. 867 (1982); United
States v. Saldana, 505 F.2d 628, 628 (5th Cir. 1974)(per
curiam)(stating that Rule 11 “requires the judge to advise the
defendant of the maximum sentence possible, but there is no
requirement to advise a defendant of every ‘but for’ consequence
which follows from a guilty plea”); Haynes v. Henderson, 480 F.2d
550, 551 (5th Cir. 1973)(per curiam)(finding no error where the
district court advised defendant “that he could be sentenced to
serve up to nine years in the penitentiary, in the sole
discretion of the court”); Tindall v. United States, 469 F.2d 92,
92-93 (5th Cir. 1972)(per curiam)(concluding that the
requirements of Rule 11 are met so long as the trial court
clearly advised defendant of the maximum sentence possible).
II.
9
We conclude that the effect of 18 U.S.C. § 3584 is not a
consequence of which a defendant must be advised before a guilty
plea may be accepted. Section 3584 provides, in relevant part:
Imposition of concurrent or consecutive terms.--If
multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively. . . .
18 U.S.C. § 3584(a). Although the plain language of § 3584
suggests that the district court is without discretion to order
that a federal term of imprisonment run concurrent with a yet-to-
be-imposed state sentence, we have found to the contrary. See
United States v. Brown, 920 F.2d 1212, 1217 (5th Cir.)(per
curiam)(stating that under § 3584 the district court may order
that a federal term of imprisonment run either concurrent with or
consecutive to an anticipated state sentence), cert. denied, 500
U.S. 925 (1991); see also United States v. Williams, 46 F.3d 57,
58-59 (10th Cir.)(same), cert. denied, 516 U.S. 826 (1995).
Since, under our precedent, the district court may order that a
federal sentence run concurrent with a forthcoming state
sentence, a consecutive sentence is not a necessary consequence
of § 3584's application.
Moreover, were we to follow the circuits that have concluded
that a district court has no discretion to order that a federal
sentence run concurrent to a state sentence unless the latter has
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already been imposed,5 we would, following the persuasive
reasoning of Cobb and Kincade and our own precedents under §
3584's predecessor, arrive at the same result. As discussed
above, the Fourth Circuit in Cobb and the Third Circuit in
Kincade held that the district court need only advise a defendant
of consequences that affect his federal sentence. Thus, the
application of a no-discretion construction of § 3584, the effect
of which would be that the federal sentence would run consecutive
to a later-imposed state sentence, would not affect the length of
defendant’s federal term of imprisonment and therefore is not a
consequence of which defendant must be warned. See United States
v. Parkins, 25 F.3d 114, 118-19 (2d Cir.), cert. denied, 513 U.S.
1008 (1994); see also United States v. Ray, 828 F.2d 399, 417-19
(7th Cir. 1987)(dicta), cert. denied sub nom., McChristion v.
United States, 484 U.S. 1045 (1988).
Hernandez urges us to follow the Ninth Circuit’s opinion
United States v. Neely, 38 F.3d 458 (9th Cir. 1994). In Neely,
the court held that a defendant must be warned of § 3584's effect
where the district court has no discretion under the same. Id.
at 460-61. As we have noted, in this circuit, that situation
does not exist. Were we to apply a limited-discretion
5
See Romadine v. United States, 206 F.3d 731, 737-38 (7th Cir.
2000); United States v. Quintero, 157 F.3d 1038, 1039 (6th Cir. 1998); United
States v. Clayton, 927 F.2d 491, 492-93 (9th Cir. 1991); see also United
States v. Smith, 101 F. Supp. 2d 332, 343-46 (W.D. Pa. 2000).
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construction of § 3584, we would follow the analysis discussed
above.
CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.6
6
Having found that Hernandez’s plea was validly entered, we need
not address the government’s contention that Hernandez waived his right to
challenge his plea.
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