United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit October 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-41174
UNITED STATES OF AMERICA,
Plaintiff - Appellee
VERSUS
DEMETRIAS SANFORD, also known as Dee Dee
Defendant - Appellant
Appeal from the United States District Court
For the Southern District Of Texas
Before DAVIS, JONES, and GARZA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Demetrias Sanford was convicted and sentenced in district
court on three drug trafficking charges. After his conviction and
sentence were affirmed on direct appeal and the Supreme Court
denied certiorari review, defendant filed a § 2255 petition in
district court seeking relief on grounds of ineffective assistance
of counsel. The district court vacated the original conviction and
sentence because the district court overlooked expressly accepting
Sanford’s guilty plea. The court then dismissed the § 2255
petition as moot. Thereafter, the district court reinstated the
conviction on two of the counts and resentenced the defendant.
Sanford raises three issues on appeal. For the first time on
appeal, the government argues that the district court was without
jurisdiction to vacate Sanford’s original conviction and sentence
and re-docket the case. We agree and vacate the judgment rendered
by the district court vacating the original conviction. We also
reinstate the original judgment and sentence and remand to the
district court for consideration of Sanford’s § 2255 petition.
I.
In 1999, Demetrias Sanford1 was indicted along with twelve other
persons on cocaine distribution charges. Count 1 charged Sanford with
conspiracy to possess cocaine and cocaine base, or crack, with intent
to distribute. Counts 8 and 9 charged him with possession with intent
to distribute crack and cocaine, respectively.
Sanford pled guilty to all three counts without a plea
agreement. With Sanford’s consent, a magistrate judge (MJ) heard his
plea and explained Sanford’s rights to him as required by Rule 11.
Sanford later filed a written statement accepting
responsibility. A Presentence Report (PSR) was prepared, which set
the total offense level at 32. The district court gave Sanford
credit for accepting responsibility and reduced the total offense
1
The correct spelling is “Demetrious Sandford,” but the case
was originally docketed in the district court and has been docketed
in this court using “Demetrias Sanford.” Thus, the latter spelling
is employed here.
2
level to 29. With Sanford’s criminal history category of III, the
resulting guideline range was 108 to 135 months, which was raised to
120 to 135 months due to the mandatory ten-year minimum. The court
sentenced Sanford to 120 months in prison.
On May 26, 2000, the court entered a judgment, which stated that
Sanford pleaded guilty to Counts 1, 8 and 9 and confirmed the
previously announced sentence. Sanford appealed various aspects of
his sentence. This court affirmed, and the Supreme Court denied
certiorari on January 7, 2002.
Approximately one year later, Sanford filed a 28 U.S.C. § 2255
motion to vacate his sentence, alleging ineffective assistance of
counsel. The § 2255 motion was referred to the same MJ who previously
heard Sanford’s plea. In his consideration of the motion, the MJ
reviewed the record and learned that the district court had never
entered a formal order accepting Sanford’s guilty plea. Although the
§ 2255 motion made no reference to this omission, the MJ recommended
that Sanford’s sentence be vacated because of the district court’s
failure to formally accept the plea, and that the case be returned to
the regular docket. The MJ also recommended that the § 2255 motion
be denied as moot. Neither Sanford nor the Government filed
objections, and the district court adopted the MJ’s recommendation,
vacated the original sentence, and returned the case to the docket.
The order did not expressly deny the § 2255 motion, but the order did
adopt the MJ’s recommendation as the court’s order.
On January 6, 2004, Sanford filed a notice that he intended to
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withdraw his guilty plea. On March 12, 2004, he filed a motion to
withdraw his guilty plea alleging that he had been incorrectly
advised of the maximum possible sentence under Count 1 of the
indictment at the October 28, 1999, rearraignment, which rendered
involuntary his guilty plea on all counts.
The MJ held a hearing and concluded that, pursuant to Apprendi
v. New Jersey, 530 U.S. 466 (2000), Sanford’s guilty plea as to Count
1 was not valid because Count 1 did not allege drug quantity. Absent
an allegation of drug quantity, the statutory maximum penalty for
Count 1 (conspiracy) was 20 years. Sanford was told at his guilty
plea hearing that he faced a sentence of 10 years to life. The MJ
concluded that, because Sanford’s plea had not been accepted,
Sanford’s plea should be rejected as to Count 1. As to Counts 8 and
9, the MJ concluded that any allegation of drug quantity was
irrelevant because, as to those counts, Sanford was properly
admonished regarding the penalty. Thus, the MJ concluded that the
guilty plea should be accepted as to those counts.
The district court accepted the MJ’s recommendation, rejected
the plea as to Count 1, gave Sanford the opportunity to replead to
that count, and accepted the plea as to Counts 8 and 9. The court
subsequently entered an order accepting the 1999 plea as to counts 8
and 9 and finding Sanford guilty. The government later moved to
dismiss Count 1, and the district court entered an order of
dismissal.
A new PSR was prepared. The PSR applied a base offense level of
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32 based on its finding that Sanford was responsible for 655.66 grams
of cocaine powder and 65.80 grams of crack. Because Sanford did not
provide a statement of acceptance of responsibility, the PSR did not
recommend the two point reduction. With Sanford’s criminal history
category of III, the guideline range was 151 to 188 months.
Sanford objected, arguing that the vacation of the sentences was
unnecessary and that the district court could have entered a nunc pro
tunc order accepting the plea. Sanford further objected to the
failure to give him credit for his prior acceptance of
responsibility. He also alleged that, pursuant to Blakely v.
Washington, 124 S. Ct. 2531 (2004), his sentence could not be based
on the court’s finding of drug quantity.
Sanford declined to accept responsibility at the second
sentencing. His counsel argued that it was not in his best interest
to accept responsibility. The district court indicated that it
wanted to award the reduction, but could not do so under the
circumstances. On August 27, 2004, the district court overruled
Sanford’s objections and sentenced Sanford to 151 months, 31 months
more than Sanford’s original sentence. Sanford filed a timely notice
of appeal.
II.
The Government argues for the first time that the district
court was without jurisdiction to vacate Sanford’s prior
convictions and re-docket the case. The government contends that
the original sentence was final when the Supreme Court denied
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Sanford’s application for writ of certiorari. The government
further argues that a § 2255 petition is the only available avenue
to attack the original conviction. We agree with the government
that the district court’s only jurisdictional basis to modify or
vacate the judgment was under § 2255. Sanford’s habeas petition
did not seek relief on the ground that the district court failed to
formally accept his guilty plea and neither the magistrate judge
nor the district court purported to vacate the conviction and
sentence pursuant to claims asserted in his habeas petition.2
The government did not object to the MJ’s ruling that the
district court had not accepted the guilty plea, nor did the
government appeal the district court’s order vacating the original
judgment on that basis. To the contrary, the government acquiesced
in this order by dismissing Count 1 of the indictment. The
2
Although the district court did not enter a formal order
accepting the guilty plea, the district court’s actions indicate
that it did, in fact, accept the plea. Notably, the district court
entered a judgment of conviction which stated that Sanford “pleaded
guilty to counts 1, 8, and 9 on October 28, 1999.” By entering
judgment of guilty and sentencing Sanford, the district court
implicitly accepted the guilty plea.
In United States v. Morales-Sosa, 191 F.3d 586 (5th Cir. 1999)
this court dealt with a very similar issue involving a district
court’s failure to expressly accept the defendant’s guilty plea at
sentencing. In Sosa, the defendant pleaded guilty to possession
with intent to distribute heroin. The district court did not
explicitly accept the guilty plea or the plea agreement, but the
distrit court sentenced defendant to 135 months imprisonment, and
the plea agreement was followed. After reviewing the challenge
under the harmless error rule, this court found that the
defendant’s substantial rights were not affected by the district
court’s failure to expressly accept the terms of the agreement and
that the district court implicitly accepted the guilty plea and
plea agreement.
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government argues, however, that because the district court had no
jurisdiction to vacate the conviction and sentence, this issue may
be raised for the first time on appeal. See United States v.
Henry, 288 F.3d 657, 660 (5th Cir. 2002).
In United States v. West, 240 F.3d 456, 459 (5th Cir. 2001),
a prisoner filed a § 2255 motion alleging ineffective assistance of
counsel based on counsel’s failure to file a timely appeal. Id.
Section 2255 only gives the district court authority to vacate the
judgment and discharge the prisoner, resentence him, grant a new
trial, or correct the sentence. This court had previously
recognized that a prisoner may obtain the judicial remedy of an
out-of-time appeal based on ineffective assistance of counsel. Id.
West does not answer the question in this case, however. West
involved the unique circumstance where a prisoner has allegedly
been denied the constitutional right to effective assistance of
counsel through failure to file a notice of appeal, which can be
properly raised in a § 2255 motion. In this case, however, Sanford
did not raise in his § 2255 petition the court’s failure to
formally accept the guilty plea. Also, the district court’s sua
sponte relief was not based on the denial of effective assistance
of counsel, a constitutional right, but rather on the perceived
procedural error described above. Because the district court’s
order vacating Sanford’s conviction and sentence was not entered
pursuant to Sanford’s § 2255 petition, the court was without
jurisdiction to enter the order. For this reason, we reinstate the
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district court’s original judgment and sentence. We also vacate
all orders entered after the original judgment of conviction and
sentence and remand this case to the district court to consider the
merits of Sanford’s § 2255 petition. This disposition makes it
unnecessary to reach any of the remaining issues raised on appeal.
ORIGINAL JUDGMENT REINSTATED.
REMANDED.
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