United States v. White

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-11392

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEVIN WHITE,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

September 23, 2002

Before GARWOOD, DeMOSS, and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Kevin White appeals the district court’s denial of his 28

U.S.C. § 2255 petition challenging his 1996 cocaine conspiracy

sentence. We affirm.

White argues that his attorney failed to challenge the

quantity of drugs used in sentencing him and allowed him to be

sentenced under a different statute than the one named in the
indictment, thus constituting ineffective assistance of counsel.

He further argues that this ineffective assistance justifies

resentencing despite the otherwise valid waiver of appeal contained

in his plea agreement. Because ineffective assistance of counsel

claims only survive a waiver of appeal if they directly relate to

the voluntariness of the waiver, and because White does not

challenge the validity of his plea, we affirm.

Background

From late 1994 through 1995, Kevin White and twelve associates

bought cocaine and cocaine base in Houston, concealed it in a spare

tire, and then drove it to Wichita Falls where they converted most

of the cocaine to cocaine base. The group would then sell the

cocaine and cocaine base in Wichita Falls. This scheme came to an

end when a grand jury returned a fourteen-count indictment against

them on November 15, 1995. Count one charged White et al. with

conspiracy to distribute cocaine base in excess of one kilogram, to

possess cocaine base in excess of one kilogram with intent to

distribute, and to possess cocaine with intent to distribute, all

in violation of 21 U.S.C. § 846. Count One also parenthetically

mentions 21 U.S.C. § 841(a)(1) to indicate the predicate crime of

the conspiracy charge. The indictment did not expressly indicate

the appropriate punishment range under 21 U.S.C. § 841(b), but

count one includes quantities of cocaine base “over one kilogram”

2
as part of the charged offense. Moreover, the overt acts alleged

in count one include nearly 700 grams of cocaine base and over

three kilograms of cocaine as well as other actions involving

unnamed amounts of cocaine base. In addition to the count one

conspiracy charge, White was also charged in counts four and five

with possession of 35 grams and 32.5 grams of cocaine base with

intent to distribute in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(iii). White was arrested the day after the indictment

was returned.

On January 31, 1996, White signed a plea agreement under which

he pleaded guilty to the conspiracy charge in return for the

dismissal of the two possession with intent to distribute charges.

The plea agreement described the referenced conspiracy charge as a

violation of 21 U.S.C. § 846 based on “conspiracy to possess with

intent to distribute cocaine base” without citing the predicate

statute or the quantity of drugs. The agreement stated the penalty

range was ten years to life imprisonment—the sentencing range

applicable to offenses charged under 21 U.S.C. § 841(b)(1)(A). The

plea agreement also contained a waiver of the right to appeal,

expressly including a waiver of White's right to challenge his

sentence under 28 U.S.C. § 2255. Only three potential arguments

were excepted from the waiver: White could challenge a sentence in

excess of the statutory maximum, an upward departure from the

applicable guideline range, and the disparate treatment of cocaine

3
and cocaine base in the statute. At the same time he signed the

agreement, White signed the factual resume, which described the

charged offense and alleged that White joined in transporting and

selling cocaine base but makes no reference to any particular

quantity of drugs.

The plea agreement was accepted by the district court at a

hearing held on February 5, 1996. At the hearing, White agreed

that he had read count one of the indictment, that he understood he

was pleading guilty to that count, and that the applicable

sentencing range was ten years to life. When the prosecution

summarized the indictment and the factual resume, however, the

prosecutor said that White had been charged with conspiracy “in

violation of Title 21, United States Code, Sections 841(a)(1) and

(b)(1)(B)(iii).” This was apparently the first and only time that

21 U.S.C. § 841(b)(1)(B) was mentioned in this case in connection

with the conspiracy charge. White agreed with the facts as read

aloud and pleaded guilty.

At the sentencing hearing on April 15, 1996, White's attorney

challenged the presentence report because it connected more than

1.5 kilograms of cocaine base to White, thus raising the base

offense level used in the sentencing guideline calculations. White

first argued that the government had entrapped him to sell a higher

quantity of drugs than he would have sold of his own volition, but

the court thought otherwise and overruled this objection. White's

4
attorney then argued that the drug quantity information came from

coconspirators and rendered the report unreliable. When questioned

by the court, White conceded that he may have sold three-quarters

to one kilogram of cocaine base but denied that the quantity was in

excess of one and a half kilograms. The district court overruled

the objection and found that the facts supported a reasonable

finding that the quantity of drugs would be far in excess of one

and a half kilograms. This relevant conduct (along with the

deduction for acceptance of responsibility) led to a total offense

level of 36, or a range of 188-235 months of incarceration. The

court imposed the minimum sentence of 188 months, which fell within

each of the statutory sentence ranges in 21 U.S.C. § 841(b)(1).

On direct appeal, White challenged both the disparity between

the statutory sentences for cocaine and cocaine base and the

court's decision to overrule his sentencing entrapment argument.

This court, in an unpublished opinion, affirmed the first point

based on circuit precedent and refused to address the second claim

because of his waiver of appeal. See United States v. White, No.

96-10489 (5th Cir. April 17, 1997) (unpublished). White's petition

for certiorari in the Supreme Court was denied on October 6, 1997.

On September 16, 1998, White filed pro se the instant section

2255 motion to vacate, set aside, or reduce his sentence based on

the government's failure to provide DEA lab reports establishing

the quantity of drugs. He claimed that this absence of proof

5
constituted “new evidence” compelling a new sentencing hearing and

also alleged that he received ineffective assistance of counsel

because his attorney failed to point out this shortcoming. White's

only response to the waiver of appeal was to claim that enforcement

of the waiver would be a “manifest miscarriage of justice.” In an

opinion issued October 10, 2000, the district court found that the

waiver language in the plea agreement was clear and unambiguous and

that White had knowingly and voluntarily waived those rights.

Because waivers of appeal are enforceable under those conditions,

the district court denied White's section 2255 motion.

White then filed a notice of appeal and petition for

certificate of appealability (“COA”). In his COA petition, White

asserted for the first time that his attorney was deficient for

allowing the government to convict him under 21 U.S.C.

§ 841(b)(1)(A) while both the plea agreement and factual resume

allegedly required that he be sentenced under section 841(b)(1)(B).

He added that his waiver could not be knowing and voluntary under

those circumstances. The district court denied the COA on December

6, 2000, citing the prior findings of fact and holding that White

had not made a substantial showing of the denial of a federal

constitutional right.

White appealed the petition for COA to this court. In his

brief in support of that appeal, White inexplicably connected the

statute cited in counts four and five of the indictment (“21 U.S.C.

6
§ 841(a)(1) and (b)(1)(B)(iii)”) with the conspiracy charged in

count one (“21 U.S.C. § 846" and, parenthetically, “§ 841(a)(1)”)

and argued that he was charged under section 841(b)(1)(B) but

sentenced under section 841(b)(1)(A). For this reason, White

argued, his sentence was illegal and his attorney was incompetent

for allowing the error. He also possibly argued that the same

problem rendered his waiver of appeal involuntary and unknowing,

although the argument was couched in terms of the ineffective

assistance of counsel. In an order dated May 2, 2001, this court

“liberally construed” White's brief as challenging whether his

waiver of appeal was valid and granted him a COA on that issue.

Analysis

I. The Nature of White's Claim

Having granted a certificate of appealability on the validity

of his waiver of appeal,1 we must first make sense of White's

ineffective assistance of counsel arguments. To begin, we note

that a defendant can waive his right to file a section 2255 motion,

although such a waiver might not apply to an ineffective assistance

of counsel claim. United States v. Wilkes, 20 F.3d 651, 653 (5th

Cir. 1994). We also note that a defendant may always avoid a

1
Because this court may only review the issue on which the
certificate of appealability was granted, we disregard the other
arguments in White's briefs. See Lackey v. Johnson, 116 F.3d 149,
152 (5th Cir. 1997). We also will not reach the merits of his
claim of ineffective assistance of counsel at sentencing.

7
waiver on the limited grounds that the waiver of appeal itself was

tainted by the ineffective assistance of counsel. United States v.

Henderson, 72 F.3d 463, 465 (5th Cir. 1995). White's ineffective

assistance of counsel argument therefore might proceed down either

of two avenues. On the one hand, he may argue that the ineffective

assistance of his counsel rendered his waiver involuntary. On the

other hand, he may argue that he received ineffective assistance of

counsel at his sentencing and that all ineffective assistance of

counsel arguments are immune from waiver.

Having sifted through the petitioner's pro se briefs, we are

satisfied that White does not argue that ineffective assistance of

counsel rendered his waiver involuntary. He spends the majority of

his briefs arguing the ineffective assistance of his counsel based

on his attorney's actions at the sentencing hearing. In fact,

White makes it clear at the conclusion of his reply brief that he

does not challenge the validity of his plea but merely the

propriety of his sentencing. Nevertheless, White does argue at one

point that because he was allegedly charged under section

841(b)(1)(B) but sentenced under section 841(b)(1)(A), his waiver

could not be knowingly or intelligently made. He also argues that

his attorney “induced” him to sign the plea agreement based on this

misrepresentation.

Two factors indicate that White never meant to challenge the

validity of his plea, however. First, White made these assertions

8
as part of his larger argument. White follows the above assertions

not with a claim that the above alleged error was reason enough to

overturn his sentence on its own, but rather with an argument that

ties those alleged factors to his counsel's ineffectual performance

at the sentencing hearing. The clearest reading of White's

argument is therefore that he is only challenging his sentencing

and not his plea. This reading is supported by White's unequivocal

statement at the end of the reply brief.

Second, White's argument cannot be connected to his plea

without degenerating into nonsense. Neither count one of the

indictment nor the factual resume charges White with a violation of

section 841(b)(1)(B); White has again relied upon the statute cited

in counts four and five instead of the text of count one. White

stated under oath that count one of the indictment was correct,

which connects him to the “more than one kilogram of cocaine”

alleged in that count. This admission not only casts doubt on his

later assertion that he should be held accountable to a lesser

quantity of drugs, but it also prevents the application of any

sentencing statute other than section 841(b)(1)(A). See 21 U.S.C.

§ 841(b)(1)(A)(iii) (providing penalties for fifty grams or more of

cocaine base). White then acknowledged, both in writing in the

plea agreement and orally at the plea hearing, that he was agreeing

to be sentenced within a range of ten years to life. That sentence

is imposed for a violation of section 841(b)(1)(A). While the

9
prosecutor later incorrectly orally stated at the plea hearing that

White was charged under section 841(b)(1)(B)(iii), White had

already made these sworn admissions. White doesn't even mention

the prosecutor's error or include it in his record excerpts,

indicating that this cannot be the source of his claim of error.

Instead, White openly refers to the text of counts four and five.

Finally, we note that the sentence actually imposed was well within

the statutory limits for even the smallest quantity of cocaine

base, and the district court was within its power when it looked at

relevant conduct to assign the quantity of drugs within those

statutory ranges. See United States v. Doggett, 230 F.3d 160, 165

(5th Cir. 2000). Thus, even if White were arguing that this

statutory confusion was somehow connected to the plea and rendered

his waiver involuntary, that argument would be facially meritless

and unsupported by the record.

We therefore understand White's appeal as asserting that he

received ineffective assistance of counsel at his sentencing

hearing. His explicit waiver of appeal bars this claim unless

ineffective assistance of counsel claims cannot be waived.

Accordingly, we turn to that question.

II. Waiver of Ineffective Assistance of Counsel Claims

This circuit has not yet decided whether all ineffective

assistance of counsel claims survive a valid waiver of appeal,

although we have outlined the boundaries of the question. In

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United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994), this

court held that an informed and voluntary waiver of the right to

file a 28 U.S.C. § 2255 motion will be enforced. At the same time,

we joined the Ninth Circuit in musing (in dictum) that ineffective

assistance of counsel claims may be an exception to that rule. Id.

(citing United States v. Abarca, 985 F.2d 1012 (9th Cir. 1993)).

The following year, in United States v. Henderson, 72 F.3d 463, 465

(5th Cir. 1995), we held that a waiver of appeal may not be

enforced against a section 2255 petitioner who claims that

ineffective assistance of counsel rendered that waiver unknowing or

involuntary.2 Thus, Wilkes and Henderson provide answers to the

somewhat-simpler questions that lie to either side of the present

case.

This circuit has not yet decided, however, whether the

Henderson rule extends to the full reach of the Wilkes dictum.

That is, we have not yet decided whether a waiver of appeal remains

valid if the section 2255 movant argues that he received

ineffective assistance of counsel at stages of the proceedings

other than the plea or waiver itself. While we affirmed without

opinion the district court's decision to enforce such a waiver in

2
Apart from ineffective assistance of counsel claims, we have held that a waiver of appeal in
a plea agreement will not be enforced to bar direct appeal where the appellant correctly contends that
the indictment clearly does not state an offense and/or where the factual basis for the plea reflected
in the Fed. R. Crim. P. 11(f) proceedings clearly does not show commission of the offense. See
United States v. Spruill, 292 F.3d 207, 215 (5th Cir. 2002). Nothing like that is involved in the
present case.

11
United States v. Flunker, No. CRIM. A. 98-75, 2000 WL 823469 (E.D.

La. 2000), that decision lacks precedential force. We do not

venture into unexplored territory, however. Our sister circuits

have addressed the instant question and all have concluded that

waivers of appeal remain valid unless the ineffective assistance

directly related to the knowing, voluntary nature of the waiver.

We turn first to those cases, and then to our own decision on the

matter.

a. Other Circuit Decisions

The first court to address the question was the Ninth Circuit.

In United States v. Pruitt, 32 F.3d 431 (9th Cir. 1994), the court

reiterated that a plea agreement could not waive a claim of

ineffective assistance of counsel based on “counsel's erroneously

unprofessional inducement of the defendant to plead guilty or

accept a particular plea bargain,” but distinguished the

defendant's case because he was only claiming ineffective

assistance of counsel at the sentencing proceedings. Id. at 433.

The court did not develop this distinction, however, because the

waiver of appeal did not expressly include section 2255 motions and

thus could not be enforced anyway. Id. Nevertheless, this dictum

suggested that the ineffective-assistance-of-counsel exception to

waivers of appeal would be limited to those cases directly

implicating the waiver.

The first case to actually enforce a waiver in circumstances

12
similar to the instant case was United States v. Djelevic, 161 F.3d

104 (2nd Cir. 1998). In that case, before the court on direct

appeal, the defendant argued that his claims of ineffective

assistance of counsel at sentencing could not have been waived.

The Second Circuit “emphatically reject[ed] this contention.” Id.

at 107. Because the defendant did not claim that his waiver was

unknowing or involuntary, the court characterized his appeal as

nothing more than an attempt to challenge the correctness of his

sentence under the Sentencing Guidelines despite his explicit

waiver of such challenges. Id. The court feared that allowing

this argument to prevail would permit all challenges to the

sentence to be reconstituted as “ineffective assistance” challenges

based on the attorney's failure to obtain the desired result. The

ensuing litigation would render the waiver meaningless. Id. The

Djelevic court accordingly enforced the waiver.

Later that year, the Seventh Circuit issued the first opinion

to reach the same result in the context of section 2255. In Jones

v. United States, 167 F.3d 1142 (7th Cir. 1998), the court allowed

a defendant to overcome a waiver and argue ineffective assistance

of counsel in a section 2255 motion because the defendant alleged

he received ineffective assistance in the negotiation of the

agreement itself. Id. at 1145. The court compared that situation

to cases where a waiver was procured through coercion or

intimidation, in which it is “intuitive” that the waiver should not

13
be enforced. Id. The Jones court was careful to limit its

holding, however. “Mindful of the limited reach of this holding,

we reiterate that waivers are enforceable as a general rule; the

right to mount a collateral attack pursuant to § 2255 survives only

with respect to those discrete claims which relate directly to the

negotiation of the waiver.” Id. The Seventh Circuit put teeth

into that aside in Mason v. United States, 211 F.3d 1065 (7th Cir.

2000), in which the court held that the defendant's ineffective

assistance claim merely challenged his attorney's performance at

sentencing. The Mason court applied the Jones dictum and enforced

the waiver.3

Perhaps the most thorough analysis of the present problem

appears in United States v. Cockerham, 237 F.3d 1179 (10th Cir.

2001). In Cockerham, the defendant alleged in his section 2255

motion that he received ineffective assistance of counsel because

his attorney had permitted the government to use insufficient

evidence to convict and sentence him. Id. at 1181. The government

responded by relying on the waiver of appeal contained in his plea

agreement. Id. Because the Tenth Circuit had never explicitly

dealt with waiver of the right to file a section 2255 motion, the

court began with that issue. After a thorough review of the case

3
We also note that the Eighth Circuit reached the same result
as Jones in DeRoo v. United States, 223 F.3d 919, 924 (8th Cir.
2000), with similar dicta limiting the scope of the holding, but
that court has not yet been called upon to enforce that limitation.

14
law, the court held that waivers of the right to file a collateral

appeal were permitted if knowing and voluntary, and if the sentence

was not imposed on an impermissible ground such as race. Id. at

1182. Moving on to the question of whether ineffective assistance

claims survive such a waiver, the court examined Jones and Mason in

depth along with several district court cases and observed that the

courts had generally distinguished between ineffective assistance

affecting the plea agreement and ineffective assistance relating to

some other part of the proceedings. Id. at 1184-86. Nevertheless,

the Cockerham court felt that these courts had not “adequately

explained why they make this distinction.” Id. at 1186.

The Cockerham court supplied that explanation by incorporating

the holding and reasoning of United States v. Broce, 109 S.Ct. 757

(1989). In Broce, which concerned the ability of defendants who

pleaded guilty to collaterally attack their sentences on double

jeopardy grounds, the Court explained that “when the judgment of

conviction upon a guilty plea has become final and the offender

seeks to reopen the proceeding, the inquiry is ordinarily confined

to whether the underlying plea was both counseled and voluntary.”

Broce, 109 S.Ct. at 762. This was because “a plea of guilty and

the ensuing conviction comprehend all of the factual and legal

elements necessary to sustain a binding, final judgment of guilt

and a lawful sentence.” Id. The Court noted that an ineffective

assistance of counsel claim might survive a plea of guilty if the

15
ineffective assistance was failure to provide competent advice on

how to plead, but held that the defendants were not entitled to

collateral relief because they did not “call[] into question the

voluntary and intelligent character of their pleas.” Id. at 765.

The Tenth Circuit applied the Broce holding and reasoning to

waivers of appeal. Because a voluntary plea of guilty was enough

to sustain the conviction, the Cockerham court reasoned, an

ineffective assistance of counsel claim could only survive waiver

if it challenged the validity of the plea or the waiver.

Cockerham, 237 F.3d at 1187. The court then proceeded to examine

whether the defendant had argued that the ineffective assistance of

counsel related to the validity of the plea and remanded for

further factfinding.

Finally, we note that the Sixth Circuit has followed suit. In

Davila v. United States, 258 F.3d 448 (6th Cir. 2001), the court

cited the above cases and held that a claim of ineffective

assistance of counsel cannot survive a knowing, voluntary and

intelligent waiver. Id. at 451. The court's ultimate holding

depended on the fact that the district court had painstakingly

explained the waiver to the defendant (who was an attorney), but we

also note that the defendant was claiming ineffective assistance at

sentencing.

b. The Present Case

We will follow this wealth of authority and hold that an

16
ineffective assistance of counsel argument survives a waiver of

appeal only when the claimed assistance directly affected the

validity of that waiver or the plea itself. We agree with Jones

and Mason that an impermissible boot-strapping arises where a

waiver is sought to be enforced to bar a claim that the waiver

itself–or the plea agreement of which it was a part--was unknowing

or involuntary. This court addressed that problem in Henderson.

Where the movant's claim does not involve that sort of boot-

strapping, however, we see no need to except ineffective assistance

of counsel claims from the general rule allowing defendants to

waive their statutory rights so that they can reach a plea

agreement if they wish. See United States v. Melancon, 972 F.2d

566, 567 (5th Cir. 1992). The Sixth Amendment right to effective

assistance of counsel may also be waived, and thus need not be

treated any differently. See Johnson v. Zerbst, 58 S.Ct. 1019,

1023 (1938).

We also agree with the Cockerham court that Broce suggests the

result we reach today. We ask whether the plea or waiver itself

was knowing and voluntary, and whether the issue challenged on

appeal may properly be the subject of waiver.4 If the answer to

4
We note that White explicitly preserved the right to appeal
a sentence in excess of the statutory maximum, and that his
sentence was well within the statutory limits. Because the issue
is not before us, we need not decide whether a waiver of appeal
would be enforced where the sentence facially (or perhaps
indisputably) exceeds the statutory limits. See also note 2,
supra.

17
both questions is “yes,” then the guilty plea sustains the

conviction and sentence and the waiver can be enforced.

Finally, we agree with Djelevic that the opposite result would

render waivers of appeal meaningless. If all ineffective

assistance of counsel claims were immune from waiver, any complaint

about the process could be brought in a collateral attack by merely

challenging the attorney's failure to achieve the desired result.

A knowing and intelligent waiver should not be so easily evaded.

White claims ineffective assistance of counsel, but he does

not claim that the waiver in his plea agreement was unknowing or

involuntary. That plea required White to forego his right to

relief in appeals just like this one, and he knew that when he

signed it. We will therefore hold him to his word and affirm the

district court's denial of his section 2255 motion.

AFFIRMED

18
Dennis, Circuit Judge, dissenting:

As I disagree that a person can make an intelligent, knowing

waiver of the right to contest constitutional violations before

the violations occur, I respectfully dissent. As the Fourth

Circuit observed, “[A] defendant who waives his right to appeal

does not subject himself to being sentenced entirely at the whim

of the district court.” United States v. Marin, 961 F.2d 493,

496 (4th Cir. 1992). Rather, “a defendant’s agreement to waive

appellate review of his sentence is implicitly conditioned on the

assumption that the proceedings following entry of the plea will

be conducted in accordance with constitutional limitations.”

United States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994).

Therefore, a defendant should not be able to waive his right to

appeal constitutional violations when he lacks the fundamental

ability to be aware of their existence because they have not yet

occurred. See United States v. Melancon, 972 F.2d 566, 572 (5th

Cir. 1992)(Parker, Judge Robert, concurring)(A “right can not

come into existence until after the judge pronounces sentence; it

is only then that the defendant knows what errors ... exist to be

appealed, or waived.”)

In addition, while a number of claims might ultimately lack

merit, the majority’s approach creates the opportunity for the

systematic denial of a defendant’s constitutional rights. If a

19
defendant cannot maintain the right to challenge constitutional

violations that occur during sentencing, then the other parties

to the sentencing lose a powerful incentive to safeguard these

rights.

For these reasons, I would reverse and remand for

consideration of the defendant’s claims of constitutional

violations during sentencing.

20