IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 23, 2007
No. 06-10543 Charles R. Fulbruge III
Clerk
United States of America
Plaintiff - Appellee
v.
James Benjamin Puckett
Defendant - Appellant
Appeal from the United States District Court for the
Northern District of Texas
Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
EDITH H. JONES, Chief Judge:
Appellant Puckett challenges his guilty-plea conviction of and sentence for
bank robbery and the associated use of a firearm. Puckett argues that he lacked
capacity to plead guilty, that the government breached the plea agreement, that
the district court erred in calculating his offense level, and that he suffered from
ineffective assistance of counsel. We hold that plain error review governs the
contention, newly raised on appeal, that the government breached the plea
agreement. Finding no reversible error in this or Puckett’s other issues, we
affirm.
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No. 06-10543
BACKGROUND
In July 2002, James Benjamin Puckett was charged in a two-count
indictment with bank robbery and use of a firearm in the commission of a crime
of violence. Puckett pleaded guilty to both counts on September 18, 2003. As
part of the plea agreement, the government stipulated that Puckett accepted
responsibility for his crimes and thus qualified for a three-level reduction in his
offense level. The government also agreed to request a sentence at the low end
of the applicable sentencing guidelines range. Following the plea agreement, the
government filed a motion in support of the three-level reduction.
Two months after his guilty plea but before sentencing, Puckett suffered
a seizure and was diagnosed with a benign tumor on the left side of his brain.
He underwent surgery to remove it. At the request of defense counsel, the court
ordered physical and neurological evaluations to determine Puckett's mental
capacity both presently, and at the time of the offense. While the evaluations
took place, the court continued the sentencing hearing numerous times at
Puckett’s request.
Two years after pleading guilty, Puckett filed a “Claim of Ineffective
Assistance of Counsel.” He argued, inter alia, that his attorney failed to
investigate his brain disease and failed to pursue a defense based on diminished
capacity or mental defect. Later, in November 2005, Puckett filed a motion pro
se to withdraw his guilty plea. He contended that his brain tumor and bi-polar
disorder rendered him incompetent to plead guilty and unable to assist in his
own defense.
Without a hearing, the district court rejected the claim of ineffective
assistance of counsel and denied the motion to withdraw the plea. The court
found insufficient medical evidence that Puckett suffered from bi-polar disorder,
and no evidence at all that Puckett's brain tumor or bi-polar disorder had
rendered him incompetent. The court also noted that the psychological
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No. 06-10543
evaluations of Puckett were “replete” with findings of rationality, and stated that
Puckett was demonstrably competent at the time of re-arraignment. Finally, the
court concluded that Puckett had not shown his attorney’s performance was
deficient or otherwise prejudicial to Puckett's defense.
Puckett was finally sentenced. The original presentence report (PSR) from
2003 had recommended a three-level reduction in the offense level for acceptance
of responsibility. Due to the delay in sentencing, the district court ordered the
probation officer in March 2006 to interview Puckett and update the PSR.
During those interviews Puckett admitted that, while awaiting sentencing in
this case, he had helped another inmate defraud the United States Postal
Service. The probation officer detailed this subsequent criminal conduct in an
addendum to the PSR and recommended that Puckett receive no reduction for
acceptance of responsibility. The probation officer repeated this
recommendation at sentencing, and the government agreed Puckett was no
longer entitled to a reduction. The government did not mention its conflicting
stipulation under the plea agreement. Puckett argued the court could award the
reduction despite the new criminal conduct, but he did not object on the grounds
that the government had breached the plea agreement. The court declined to
reduce the offense level. It did, however, sentence Puckett at the low end of the
advisory guidelines range. Puckett’s final sentence requires 262 months’
imprisonment for bank robbery and a consecutive 84-month term on the gun
count.
Puckett raises four points of error on appeal. First, he contends that the
district court abused its discretion in denying his request to withdraw his guilty
plea. Second, he argues the government’s breach of the plea agreement renders
the agreement unenforceable. Third, Puckett claims the district court erred in
denying him a reduction for acceptance of responsibility. Finally, Puckett
renews his ineffective assistance of counsel claim.
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No. 06-10543
DISCUSSION
I. Withdrawal of the Guilty Plea
On September 18, 2003, Puckett appeared at re-arraignment and entered
a plea of guilty on both counts in the indictment. Before accepting the plea, the
district court fulfilled its Rule 11 obligations to question Puckett and ensure the
plea was both knowing and intelligent. Satisfied on these points, the court
accepted the plea. More than two years later, on November 8, 2005, Puckett
filed a motion to withdraw his guilty plea. The district court denied that motion.
We review the denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). There is
no absolute right to withdraw a guilty plea, and the defendant bears the burden
to establish a “fair and just reason” for withdrawal. Id.; United States v. Grant,
117 F.3d 788, 789 (5th Cir. 1997). In determining whether the district court
abused its discretion in denying the motion, this court reviews seven factors:
(1) whether the defendant asserted his innocence, (2) whether withdrawal would
prejudice the government, (3) whether the defendant delayed in filing the
withdrawal motion, (4) whether withdrawal would inconvenience the court,
(5) whether adequate assistance of counsel was available, (6) whether the plea
was knowing and voluntary, and (7) whether withdrawal would waste judicial
resources. Grant, 117 F.3d at 789. In applying these factors, courts are to
consider the totality of the circumstances. United States v. Carr, 740 F.2d 339,
344 (5th Cir. 1984).
In this case, the third and the sixth factors are particularly relevant. As
to the third factor, delay, over two years elapsed between the guilty plea and
Puckett’s motion to withdraw his plea, with the brain tumor removal near the
beginning of the period. In the past, we have held that a delay of only 22 days
weighed against withdrawal of a guilty plea. Carr, 740 F.2d at 345. Here,
Puckett’s delay is many, many times greater than in Carr, and he offers no
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No. 06-10543
explanation for why he did not seek withdrawal in a more timely fashion. This
factor weighs heavily against Puckett.
As to the sixth factor, Puckett fails to demonstrate that his plea was not
knowing and voluntary. At re-arraignment the district court questioned and
advised Puckett thoroughly concerning the details and consequences of his plea.
Puckett stated repeatedly that he understood the proceedings and acknowledged
his guilt. The district court’s finding that his plea was intelligent and voluntary
was well-supported by the record, and Puckett introduces no evidence to show
otherwise. He claims his tumor caused him headaches and nausea in the
months prior to his plea, but shows no proof that his mental capacity was in any
way impaired. Rather, the record indicates that the tumor was benign, that it
did not affect the existing brain tissue, and did not impair Puckett’s ability to
enter a knowing and voluntary plea.
The other factors also weigh against withdrawal. Puckett had able
assistance of counsel throughout the process, as explained in greater detail
below. Moreover, Puckett does not assert his actual innocence. He admits to
robbing the bank but believes that the brain tumor “caused him to commit the
crime in question.” This bald assertion, without more, does not justify
withdrawal. See United States v. Rojas, 898 F.2d 40, 43 (5th Cir. 1990).
Additionally, allowing withdrawal of the guilty plea—after the district court
accommodated Puckett’s many requests for additional time to evaluate his
mental condition—would prejudice the government, inconvenience the court, and
waste judicial resources. We find no abuse of discretion in the district court’s
decision to deny Puckett’s withdrawal motion.
II. Breach of the Plea Agreement
A. Standard of Review
Puckett’s second argument is that the plea agreement is invalid because
the government breached it. The government concedes that it breached the plea
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No. 06-10543
agreement at sentencing by opposing any reduction for acceptance of
responsibility. Puckett failed to object to this breach, and raises the argument
for the first time on appeal. Because Puckett forfeited this error,1 both parties
agree that some sort of plain error analysis is appropriate. See United States v.
Brown, 328 F.3d 787, 790 (5th Cir. 2003); Fed. R. Crim. P. 52(b). The parties
differ, however, as to the details of that analysis. Puckett would have us apply
a rule of per se reversal any time the government breaches a plea agreement.
The government, on the other hand, argues that reversal is appropriate only if
Puckett can make the necessary showing of prejudice.
Each party cites Fifth Circuit caselaw in support of its position. Puckett
bases his per se rule in part on United States v. Goldfaden, where the panel held
that the government’s breach of a plea agreement was reversible plain error.
959 F.2d 1324, 1328 (5th Cir. 1992). Puckett also cites United States v. Valencia
for the proposition that “[t]he interest of justice and standards of good faith in
negotiating plea bargains require reversal where a plea bargain is breached.”
985 F.2d 758, 761 (5th Cir. 1993). In response, the government contends that
the breach of a plea agreement can constitute plain error, but will not always
warrant reversal. United States v. Cerverizzo, 74 F.3d 629, 633 (5th Cir. 1996).
To reverse, Puckett must establish the elements of plain error and show
prejudice before this court can correct a forfeited error. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).2
1
Forfeiture is different from waiver. Waiver is the intentional relinquishment of a
known right, and extinguishes an error completely. See United States v. Olano, 507 U.S. 725,
733 (1993). In contrast, forfeiture—failure to make the timely assertion of a right—does not
eliminate the error, nor does it completely foreclose the possibility of appellate review. Id. at
733-34.
2
Calverley was abrogated in part on other grounds by Johnson v. United States,
520 U.S. 461, 468 (1994), which held that plain error need not be plain at the time of trial, so
long as it is plain by the time of appeal. Johnson does not affect the present analysis.
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No. 06-10543
Resolving the conflict in our authorities, we conclude that the correct and
governing standard is articulated in Calverley and applied in Cerverizzo. This
court’s cases that appear to establish a contrary rule have been superseded or
simply do not apply the correct standard. Because of the confusion in this area,
it is necessary to explain why we are bound by the Calverley en banc decision
despite the failure of a few intervening decisions to follow that precedent. The
key distinction is between preserved error and forfeited error.
1. Calverley
In Calverley this court took the opportunity to “revisit and clarify the
issue of plain error in criminal cases in this circuit.” 37 F.3d at 161. The court
began by emphasizing the reality of procedural default, pointing out that a court
will take notice of forfeited error only in “exceptional circumstances.” Id. at 162.
Calverley relied on the then-recent decision in United States v. Olano, where the
Supreme Court stated, “[n]o procedural principle is more familiar to this Court
than that a constitutional right . . . may be forfeited in criminal as well as civil
cases by the failure to make timely assertion . . . .” 507 U.S. 725, 731 (1993).
Based on Olano’s reasoning, Calverley clarified the Fifth Circuit’s standard for
reviewing forfeited error in a criminal case.
Under Calverley, a forfeited error is redressable only if a criminal
defendant can show reversible plain error. The first element of this showing is
error, which is defined as “deviation from a legal rule in the absence of a valid
waiver.” Calverley, 37 F.3d at 162. Second, that error must be plain. Plain
errors are “obvious,” “clear,” or “so conspicuous that the trial judge and
prosecutor were derelict in countenancing [them], even absent the defendant’s
timely assistance in detecting [them].” Id. at 162-63 (quotation marks and
citation omitted). Finally, the plain error must “affect substantial rights.” In
most cases, the “affecting of substantial rights requires that the error be
prejudicial; it must affect the outcome of the proceeding.” Id. at 164. The
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No. 06-10543
defendant bears the burden of persuasion. If the defendant cannot show a
substantial right has been compromised, no remedy is available.3
When the three elements of plain error are present, relief on appeal is
discretionary, not mandatory. A court of appeals should exercise its discretion
only when a plain error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. Plain error affecting substantial rights,
without more, does not warrant correction on appeal. Rather, appellate courts
“must determine whether the facts of the particular case warrant remediation.”
Id.
2. Goldfaden
Puckett does not explain how he has satisfied Calverley, arguing instead
that under United States v. Goldfaden the government’s breach of a plea
agreement is reversible without further analysis. Goldfaden, however, has been
superseded by Calverley.
In Goldfaden, the defendant argued for the first time on appeal that the
government had breached the plea agreement. 959 F.2d at 1327. The court
ostensibly reviewed this claim for plain error but did not explain the basis for its
holding. After finding that the government had breached the plea agreement,
the court concluded in the space of a sentence that “this violation is plain error,”
and remanded for resentencing. Id.4 This cursory plain error review does not
meet the Calverley or Olano requirements. After finding error, Goldfaden did
not explain why the government’s error was “plain” or “obvious.”5 Two years
3
This is the reverse of the harmless error standard, under which the government bears
the burden to show that no prejudice resulted. Id.
4
Goldfaden’s sparse reasoning by no means makes clear that it intended to establish
a per se rule of reversal when the government breaches a plea agreement.
5
Goldfaden did not articulate this second prong of the plain error test, much less
explain how it was met. The court cited only an opinion from the Third Circuit to refute the
government’s claim that it had not breached the plea agreement. Id.
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after Goldfaden, Calverley disavowed earlier circuit decisions that “fail to
articulate the requirement that the unobjected to error must be obvious.”
37 F.3d at 163-64 & n.27.
Further, Goldfaden did not address the third prong of the Calverley test.
Though the court correctly observed that a plea agreement implicates a
defendant’s constitutional rights, 959 F.2d at 1328, this is insufficient where a
defendant fails to preserve error on appeal. Olano, 507 U.S. at 731 (noting that
constitutional rights are subject to forfeiture if not timely asserted). Under
Calverley, forfeited plain error is redressable only when it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” 37 F.3d at 164
(emphasis added). Goldfaden did not reach this question, nor did the court
explain whether the defendant was required to, or actually did, show prejudice.
See Goldfaden, 959 F.2d at 1327-28. Because Goldfaden did not adequately
consider the appellate court’s limited authority to review forfeited error, it
cannot be applied post-Calverley. The controlling standard for forfeited error in
criminal cases was articulated clearly in Calverley, and we are bound by that en
banc decision.
3. Decisions Subsequent to Calverley
Several Fifth Circuit decisions have recognized that the Calverley
standard applies to forfeited objections to a breach of a plea agreement.6 Notably,
in United States v. Cerverizzo, the court applied Calverley and affirmed that
under the plain error test a defendant claiming a breach of a plea agreement
must show prejudice resulting from the error. 74 F.3d 629, 633 (5th Cir. 1996).
6
See, e.g., United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001) (though the breach
of a plea agreement “can constitute plain error,” under Olano a forfeited error will not warrant
reversal unless it “seriously affects” the fairness, etc. of judicial proceedings); United States v.
Branam, 231 F.3d 931, 933 (5th Cir. 2000) (same) (citing Calverley, 37 F.3d at 162-64, and
United States v. Wilder, 15 F.3d 1292, 1301 (5th Cir. 1994)).
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No. 06-10543
A handful of this court’s cases, unfortunately, are inconsistent with
Calverley and call for per se reversal any time the government breaches a plea
agreement. These opinions do not properly account for the distinction between
preserved and forfeited error.
The root of the confusion is United States v. Valencia, a case that Puckett
relies on. 985 F.2d 758 (5th Cir. 1993). In Valencia the government breached
a plea agreement at sentencing, and the defendant preserved his objection. Id.
at 760. On appeal the panel applied a per se rule of reversal, stating that “[t]he
interest of justice and standards of good faith in negotiating plea bargains
require reversal where a plea bargain is breached.” Id. at 761. That rule,
articulated in a case where the defendant preserved the error, is inapplicable
here, where Puckett forfeited the error. Puckett’s reliance on Valencia is thus
misguided.
Other decisions have erroneously relied on Valencia in situations where
a defendant forfeited his objection. In United States v. Munoz, 408 F.3d 222 (5th
Cir. 2005), the defendant argued for the first time on appeal that the
government had breached the plea agreement. Id. at 226. Although Munoz
claimed to be reviewing for plain error, it did not conduct the appropriate
analysis. Munoz did not require the defendant to show the elements of plain
error and prejudice as required by Calverley and Cerverizzo. Instead, the court,
citing Valencia, applied a rule of per se reversal. Id. at 226 & n.26. Munoz is not
alone in failing to draw the distinction between preserved and forfeited error and
in incorrectly applying Valencia rather than Calverley and Cerverizzo.7
7
See United States v. Keresztury, 293 F.3d 750, 754-55 (5th Cir. 2002) (applying
Valencia and failing to acknowledge Calverley where defendant apparently forfeited his
objection); United States v. Saling, 205 F.3d 764, 766-67 (5th Cir. 2000) (summarily reversing
based on Valencia, without specifying whether defendant had preserved his objection).
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No. 06-10543
In sum, decisions that incorrectly relied on Valencia without considering
the ramifications of procedural default are not controlling. The correct rule,
correctly applied, is found in Calverley and Cerverizzo, and we are bound by that
rule where no objection was lodged in the district court. See United States v.
Molina, 469 F.3d 408, 416 (5th Cir. 2006).
B. Analysis
Accordingly, we review Puckett’s forfeited objection under the plain error
standard set forth in Calverley and Cerverizzo. The first two prongs of the test
are readily satisfied. There was error, as the government concedes that its
objection at sentencing to the reduction for acceptance of responsibility
“contradicted the terms of the plea agreement.” Moreover, the error was
obvious. Valencia, 985 F.2d at 761.
Concerning the third prong, whether this error affected a substantial
right, Puckett has not carried his burden of showing prejudice. Cerverizzo,
74 F.3d at 633. It is clear that the court denied Puckett a reduction because he
admitted he committed another crime while in custody. When Puckett asked the
court nonetheless to find that he had accepted responsibility, the district court
replied it was “so rare to be unknown” that a defendant with subsequent
criminal activity would receive such a reduction. Puckett has made no showing
that, absent the government’s recommendation, the district court would have
disregarded his criminal conduct and granted the reduction for acceptance of
responsibility. The record indicates exactly the opposite. Absent proof of
prejudice, Puckett cannot establish plain error and is not entitled to relief on a
forfeited objection.
By adhering to plain error review, we do not disagree with Valencia’s
observation that the government should not be permitted to “make a plea
bargain attractive to a defendant, subsequently violate the agreement[,] and
then argue harmless error, thereby defrauding the defendant.” 985 F.2d at 761.
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No. 06-10543
Criminal defendants should be, and are, protected against such abuse: in every
case, a defendant may object at sentencing if the government is violating a plea
agreement. Error thus preserved is entitled to review under the Valencia
standard. But when the defendant fails to object at sentencing, a different
rubric applies. In Olano the Supreme Court emphasized that courts of appeals
have only “circumscribed” authority to reach forfeited error. 507 U.S. at 731.
A defendant who fails to object at sentencing may still obtain relief on appeal,
but his burden is much greater. Here, Puckett fails to carry that burden, and we
find no plain error warranting reversal.
III. Evidence of Subsequent Crimes
Puckett’s third contention is that the district court erred when it found he
had not accepted responsibility because of his subsequent criminal conduct.
“Whether a defendant has accepted responsibility for a crime is a factual
question and the standard of review is even more deferential than clear error.”
United States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996). Where a defendant has
failed to withdraw from criminal conduct, the sentencing court may deny a
reduction for acceptance of responsibility. U.S. Sentencing Guidelines Manual
§ 3E1.1 cmt. n.1(b); United States v. Franks, 46 F.3d 402, 406 (5th Cir. 1995).
As detailed in the addendum to the PSR, Puckett admitted to a probation
officer that he helped another inmate defraud the U.S. Postal Service while this
prosecution was pending. Puckett now argues his participation in criminal
activity was not proved beyond a reasonable doubt and was evidenced only by
hearsay. This objection fails for several reasons. First, the district court’s
factual determinations at sentencing are subject only to a preponderance of the
evidence standard, not proof beyond a reasonable doubt. United States v.
Partida, 385 F.3d 546, 565 (5th Cir. 2004). Second, Puckett’s statements to the
probation officer are not hearsay. Third, the sentencing judge is entitled to
consider any relevant evidence, including uncorroborated hearsay, if the
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No. 06-10543
information has “sufficient indicia of reliability to support its probable accuracy.”
United States v. Slaughter, 238 F.3d 580, 585 (5th Cir. 2001) (internal quotations
omitted). At sentencing Puckett produced no evidence to rebut the facts in the
PSR; he did not deny his involvement in the crime or his confession to the
probation officer; and he did not show that the probation officer’s statements
were “materially untrue or unreliable.” See Slaughter, 238 F.3d at 585. The
court did not err on this point.
IV. Ineffective Assistance of Counsel
Finally, Puckett complains that the district court denied his claim for
ineffective assistance of counsel without a hearing. A claim of ineffective
assistance of counsel is reviewable on direct appeal only when it was raised
before the district court and the record provides sufficient details for review.
United States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991). Puckett raised this
claim below, and the district court addressed it on the merits. The record is
adequately developed to permit review on direct appeal.
We review a district court’s denial of hearing on a claim of ineffective
assistance of counsel for abuse of discretion. United States v. Demik, 489 F.3d
644, 646 (5th Cir. 2007), cert. denied, 2007 WL 2982440 (U.S. Oct. 15, 2007) (No.
07-6487). Puckett’s ineffective assistance claim itself presents a mixed question
of law and fact; we review findings of fact for clear error and conclusions of law
de novo. United States v. Fuchs, 467 F.3d 889, 910 (5th Cir.), cert. denied, 127
S. Ct. 1502 (2006). To establish ineffective assistance, Puckett must
demonstrate that his attorney’s performance fell below an objective standard of
reasonableness, and that Puckett was prejudiced as a result. United States v.
Willis, 273 F.3d 592, 598 (5th Cir. 2001). In evaluating counsel’s performance,
the court “must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. (quoting Strickland
v. Washington, 466 U.S. 668, 689 (1984)).
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No. 06-10543
Under these standards, we find no reversible error in the district court’s
denial of Puckett’s ineffective assistance of counsel claim. Puckett argued that
his attorney failed to pursue possible defenses based on diminished capacity or
mental defect. The record does not support this claim. Puckett’s attorney filed
numerous requests with the district court for neurological evaluations,
transportation to those evaluations, and delays in sentencing so that
examination results could be gathered and reviewed. The district court granted
these requests, and sentencing was postponed almost two years beyond the date
Puckett’s brain tumor was removed. Ultimately, these examinations failed to
produce evidence that would support a diminished capacity defense. Puckett has
not identified any legitimate argument, legal or factual, that his attorney failed
to pursue.
For similar reasons Puckett fails to show prejudice. He has not directed
this court to any evidence that would support either a defense to the
government’s case or a finding of impaired capacity at the time of his guilty plea.
Rather, the numerous reports on record confirm Puckett’s mental competence.
Doctor Gregory Smith found Puckett to have “excellent neurological functions,”
and expected him to “do quite well postoperatively with no expected residual
neurologic defects.” Likewise, the court-appointed psychologist, Randall Rattan,
concluded Puckett had no mental defect that either would have rendered him
unable to appreciate the wrongfulness of his offense, or might impair his ability
to assist in his own defense. Doctor Susan Franks, who conducted a
neuropsychological evaluation of Puckett, found no serious cognitive impairment
either at the time of offense or prior to sentencing. These findings are consistent
with the transcript of Puckett’s re-arraignment, which shows that he was well
aware of the nature of his offense and the consequences of his plea. Puckett
makes no showing to support a finding of prejudice, and this in itself is adequate
grounds for affirming the district court’s decision. See Armstead v. Scott, 37 F.3d
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No. 06-10543
202, 210 (5th Cir. 1994) (“A court need not address both components of the
[ineffective assistance] inquiry if the defendant makes an insufficient showing
on one.”).
For the above reasons, the district court did not abuse its discretion in
denying Puckett’s ineffective assistance claim without a hearing. Nor is there
any merit to Puckett’s claim on appeal that his attorney was derelict for not
hiring another expert to rebut Doctor Franks’s report. Puckett has given the
court no reason to believe that “just one more” evaluation would be any different
from the numerous reports already on record, all of which conclude Puckett was
not suffering from diminished mental capacity.
CONCLUSION
For these reasons, the sentence and conviction of James Benjamin Puckett
are AFFIRMED.
15