FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30450
Plaintiff-Appellee, D.C. No.
v. 4:08-cr-00076-
JOHN P. DEWEY, SEH-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
January 13, 2010—Seattle, Washington
Filed March 26, 2010
Before: Andrew J. Kleinfeld and Richard C. Tallman,
Circuit Judges, and Benjamin Hale Settle,* District Judge.
Opinion by Judge Settle
*The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
4875
4878 UNITED STATES v. DEWEY
COUNSEL
Mark D. Meyer, Great Falls, Montana, for the defendant-
appellant.
Joseph E. Thaggard, United States Attorney’s Office, Helena,
Montana; Leif M. Johnson (argued), United States Attorney’s
Office, Billings, Montana, for the plaintiff-appellee.
OPINION
SETTLE, District Judge:
This matter involves challenges to a career offender sen-
tence enhancement. As part of a plea agreement, Defendant-
Appellant John P. Dewey (“Dewey”) pleaded guilty to partici-
pating in a conspiracy to distribute methamphetamine. The
district court sentenced Dewey using the Sentencing Guide-
lines and applied the career offender enhancement based on
Dewey’s criminal history. Dewey timely appealed. Dewey
contends (1) his trial counsel was ineffective; (2) the trial
court erred in sentencing him as a career offender; (3) the trial
UNITED STATES v. DEWEY 4879
court imposed an unreasonable sentence; and (4) the trial
court erred in not treating a letter personally written by
Dewey to the district court as a motion for withdrawal of
guilty plea. We review the matter pursuant to our authority
under 28 U.S.C. § 1291. We decline to review Dewey’s inef-
fective assistance claim because, without a fully developed
record, it is not properly before the Court on direct appeal,
and we affirm the trial court’s other rulings on these issues.
I. FACTS AND PROCEDURAL HISTORY
Dewey is from Great Falls, Montana. In his adult life,
Dewey committed several crimes. The following summarizes
Dewey’s criminal history:
1. 1988, misdemeanor negligent endangerment
2. 1990, criminal sale of dangerous drugs (two sep-
arate felony offenses)
3. 1990, forgery (felony)
4. 1995, assault
5. 1996, assault, unlawful restraint, and criminal
mischief
6. 2003, misdemeanor theft
7. 2003, operating a clandestine laboratory (felony)
In 1990, Dewey pleaded guilty to two counts of the crimi-
nal sale of dangerous drugs. For each count, he was sentenced
to fifteen years in prison, with five years of that sentence sus-
pended. The sentences were set to run concurrently. In 1996,
while on parole from those offenses, Dewey was convicted of
misdemeanor assault. As a result of the assault conviction, the
court revoked the five years that had been suspended from his
4880 UNITED STATES v. DEWEY
1990 sentence. Thus, he was re-incarcerated in 1996 for his
1990 felony drug conviction. While on parole, Dewey com-
mitted the instant offense.
Beginning in January 2008, Dewey made several sales of
methamphetamine to a confidential informant. On June 4,
2008, the Grand Jury for the District of Montana indicted
Dewey on one count for conspiring with his live-in girlfriend,
Sharon Olson (“Olson”), to distribute methamphetamine,
which violated 21 U.S.C. §§ 841(a)(1) and 846. On June 12,
2008, Dewey entered a plea of not guilty to this crime.
On August 1, 2008, Plaintiff-Appellee (the “Government”)
filed an Information which provided Dewey with notice of its
intent to seek a career offender sentence enhancement based
on Dewey’s prior felony drug trafficking offenses.
On August 7, 2008, Dewey entered into a plea agreement
with the Government pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(B). The plea agreement expressly pro-
vided that (1) the court is not obligated to accept or follow the
recommendations made by the Government, and that (2) the
Defendant understands the charge to which he will plead
guilty carries a maximum penalty of thirty years imprison-
ment and a $2,000,000 fine, pursuant to 21 U.S.C.
§§ 841(b)(1)(C) and 851.
On August 13, 2008, Dewey appeared in district court for
a change of plea hearing. The court first determined that
Dewey was competent to proceed with the hearing. Next, the
court engaged Dewey in a colloquy that thoroughly detailed
the change of plea proceeding, how Dewey’s sentence would
be determined, and the rights to which Dewey was entitled as
part of the process. Dewey confirmed that he understood the
indictment, the charge against him, and the potential career
offender sentence he faced for his crime. The court informed
Dewey that it would calculate an applicable Guideline sen-
tence range for the offense of conviction, that this Guideline
UNITED STATES v. DEWEY 4881
range was not binding on the court, and that it served only as
a starting point for consideration of an appropriate sentence.
The court further explained to Dewey that, in determining
what sentence to impose, it would consider a host of other
factors that are spelled out in 18 U.S.C. § 3553(a). Dewey
confirmed he understood how sentencing would work in his
case. The court also informed Dewey that should it decide to
depart from the recommended sentence, such a decision could
not be used to form the basis for seeking to withdraw a guilty
plea. Dewey affirmed that he was clear about this point.
At the close of the change of plea hearing, Dewey entered
a plea of guilty. The court accepted Dewey’s plea, adjudged
him guilty, and informed him that a presentence report would
be provided before sentencing.
The Presentence Report (“PSR”) included Dewey’s written
admission of guilt to the conspiracy charge and determined
that Dewey had a base offense level of 20, since he was
responsible for distributing at least 20—but less than 30—
grams of methamphetamine. However, because of Dewey’s
prior felony convictions, his offense level was increased to
34. In exchange for Dewey’s guilty plea, the Government rec-
ommended a three-level downward adjustment for his accep-
tance of responsibility, resulting in an offense level of 31. The
PSR concluded that Dewey qualified as a career offender. The
probation officer then determined that the Guidelines pro-
jected a sentence of imprisonment with a range of 188 to 235
months.
Dewey objected to being classified as a career offender,
arguing that his 1990 drug trafficking convictions had
occurred more than fifteen years before the current charge and
could not, therefore, be used to calculate his offender score.
The probation officer rejected this argument noting that
Dewey’s suspended sentence was revoked and as part of that
revocation he was sentenced to five years custody, which
occurred well within the fifteen-year limit. As a result, the
4882 UNITED STATES v. DEWEY
probation officer concluded that this fact triggered the career
offender enhancement.
On October 27, 2008, against the advice of his lawyer,
Dewey personally wrote a letter to the district court stating
that he would never have signed the plea agreement if he
knew he would be sentenced as a career offender. He claimed
that his attorney, Mr. Obie, assured him that his sentencing
range would not exceed five years. He also complained that
Mr. Obie had done nothing to prevent him from being desig-
nated a career offender. In his letter, Dewey asked the court
to set aside or vacate the sentencing, or, at the very least, to
appoint him new counsel willing to challenge the issue.1 Fol-
lowing this letter, Dewey’s attorney moved to withdraw as
Dewey’s counsel on the basis that they had “irreconcilable
differences.”
The district court held an ex parte hearing on the motion to
withdraw as counsel. The court expressly stated that a motion
to withdraw Dewey’s guilty plea was not before the court.
Ultimately, the court determined Dewey was simply dissatis-
fied with being classified as a career offender and denied Mr.
Obie’s motion to withdraw. Mr. Obie remained Dewey’s
counsel throughout the proceedings below. At the close of the
ex parte hearing, the court urged Dewey and Mr. Obie to fully
discuss Dewey’s case and to be prepared for sentencing as
scheduled.
On November 17, 2008, Dewey’s sentencing hearing was
held, and the court classified Dewey as a career offender. The
court concluded that Dewey’s prior felony drug convictions
qualified as predicate offenses for classifying Dewey as a
career offender and calculated the advisory Sentencing Guide-
line at 188 to 235 months.
1
Although Dewey’s October 27, 2008, letter requested the court to “set
aside or vacate the sentencing,” the court did not sentence him until
November 17, 2008. We interpret Dewey’s letter to be a request to stop
the sentencing process pending his request for new counsel.
UNITED STATES v. DEWEY 4883
Before sentencing Dewey, the district court informed him
that it determined Dewey’s sentence after considering the
PSR, Dewey’s statements, his counsel’s statements, witness
statements, opposing counsel’s statements, the full record, and
the totality of the circumstances. The court acknowledged it
was obligated to impose a sentence that is not greater than
necessary to meet the sentencing law and to meet the goals of
the sentencing program, and stated it had considered the fac-
tors found in 18 U.S.C. § 3553(a). Ultimately, the court sen-
tenced Dewey to 224 months imprisonment and 6 years
supervised release. Dewey timely appealed.
II. DISCUSSION
A. Ineffective Assistance of Counsel
We generally do not review challenges to the effectiveness
of defense counsel on direct appeal. United States v.
Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005); United States
v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). On the pres-
ent record we are unable to determine with reasonable cer-
tainty “what counsel did, why it was done, and what, if any,
prejudice resulted.” United States v. Laughlin, 933 F.2d 786,
788-89 (9th Cir. 1991). Thus, Dewey’s ineffective assistance
of counsel claim is not properly before us. United States v.
Anderson, 850 F.2d 563, 565 n.1 (9th Cir. 1988). However,
Dewey is not foreclosed from bringing this claim in a habeas
proceeding pursuant to 28 U.S.C. § 2255.
B. Career Offender Status
Dewey next argues that the district court erred in sentenc-
ing him as a career offender. We review the district court’s
factual findings during sentencing for clear error and its inter-
pretation of the Sentencing Guidelines de novo. United States
v. Alexander, 287 F.3d 811, 818 (9th Cir. 2002). A district
court’s application of the Sentencing Guidelines to the facts
of a case are reviewed for abuse of discretion. Id.
4884 UNITED STATES v. DEWEY
[1] A district court may sentence a defendant as a career
offender when:
(1) the defendant was at least eighteen years old
at the time the defendant committed the instant
offense of conviction; (2) the instant offense of con-
viction is a felony that is either a crime of violence
or a controlled substance offense; and (3) the defen-
dant has at least two prior felony convictions of
either a crime of violence or a controlled substance
offense.
U.S.S.G. § 4B1.1. Dewey concedes that the first two elements
are satisfied in his case and that his 2003 felony conviction
for operating a clandestine laboratory should count as one of
the two required predicate offenses. However, Dewey argues
that his 1990 felony conviction for the criminal sale of dan-
gerous drugs (ADC-90-155) is too stale to be counted as the
second qualifying predicate offense. If the 1990 conviction is
counted, the trial court properly classified Dewey as a career
offender.
[2] The applicable time period for counting prior felony
convictions is set out in Section 4A1.2(e) of the federal Sen-
tencing Guidelines, which provides in pertinent part:
(1) Any prior sentence of imprisonment exceeding
one year and one month that was imposed within fif-
teen years of the defendant’s commencement of the
instant offense is counted. Also count any prior sen-
tence of imprisonment exceeding one year and one
month, whenever imposed, that resulted in the defen-
dant being incarcerated during any part of such
fifteen-year period.
(2) Any other prior sentence that was imposed
within ten years of the defendant’s commencement
of the instant offense is counted.
UNITED STATES v. DEWEY 4885
(3) Any prior sentence not within the time periods
specified above is not counted.
Therefore, to count Dewey’s 1990 felony conviction, the sen-
tence he received must meet the requirements set out in
§ 4A1.2(e)(1) or (2).
[3] In 1990, Dewey was sentenced to fifteen years in
prison for the criminal sale of dangerous drugs. Thus, his
1990 conviction was for a controlled substance offense, and
resulted in a sentence of imprisonment exceeding one year
and one month. The suspended portion of Dewey’s 1990 sen-
tence was imposed in 1996, following his misdemeanor
assault conviction, and Dewey was incarcerated. Thus, even
though the sentence was imposed in 1990, more than fifteen
years before his present drug offense, he was incarcerated for
that 1990 controlled substance offense within fifteen years of
committing the instant offense.
The guidelines address the counting of a sentence in cases
like this one, where a prior sentence is suspended and then
later revoked. U.S.S.G. § 4A1.2(k)(2)(B)2 explains that:
Revocation of probation . . . may affect the time
period under which certain sentences are counted as
provided in § 4A1.2(d)(2) and (e). For the purposes
of determining the applicable time period, use the
following: (i) in the case of an adult term of impris-
onment totaling more than one year and one month,
the date of last release from incarceration on such
sentence (see § 4A1.2(e)(1)); . . . (iii) in any other
case, the date of the original sentence (see
§ 4A1.2(d)(2)(B) and (e)(2)).
2
The commentary to the career offender provisions directs the district
court to refer to § 4A1.2 when it computes criminal history for purposes
of determining whether a defendant qualifies as a career offender. See
U.S.S.G. § 4B1.2, application note 3.
4886 UNITED STATES v. DEWEY
[4] The provision’s plain language provides that, to qualify
as a career offender predicate offense, the sentence term must
exceed one year and one month; it does not require any partic-
ular length of actual incarceration. See U.S.S.G.
§ 4A1.2(k)(2)(B); see also U.S.S.G. § 4A1.2(b), comment n.2
(sentence pronounced, not time served, is relevant to career
offender designation); United States v. Romary, 246 F.3d 339,
343 n.3 (4th Cir. 2001) (applying a similar analysis). For sen-
tences that exceed one year and one month, the guideline
directs us to look to “the date of last release from incarcera-
tion on such sentence” to determine whether any period of
incarceration for that sentence occurred within fifteen years of
the instant offense. Because Dewey’s 1990 sentence was
greater than one year and one month, and his date of last
release from prison on that sentence was within the fifteen-
year period, the trial court did not err in concluding that
Dewey qualified as a career offender.
C. Unreasonable Sentence
Dewey contends that the district court imposed an unrea-
sonable sentence. We review criminal sentences for reason-
ableness. United States v. Booker, 543 U.S. 220, 260-62
(2005). Our review for reasonableness is a review for an
abuse of discretion. Gall v. United States, 552 U.S. 38, 51
(2007). We first ensure that the sentence is procedurally
sound, and then review the sentence for substantive reason-
ableness under an abuse of discretion standard. Id.
1. Procedural Error in Sentencing
[5] In Gall, the Court described instances of “significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to ade-
quately explain the chosen sentence . . . .” Id.
UNITED STATES v. DEWEY 4887
[6] Here, similar to the facts in Gall, the district court “cor-
rectly calculated the applicable Guidelines range, allowed
both parties to present arguments as to what they believed the
appropriate sentence should be, considered all of the [18
U.S.C.] § 3553(a) factors, and thoroughly documented [its]
reasoning,” and did not regard the Guidelines as mandatory.
Id. Therefore, we conclude that Dewey’s sentencing was pro-
cedurally sound.
2. Substantive Error in Sentencing
[7] The substantive component relates to the length of the
sentence. See United States v. Hamilton, 510 F.3d 1209,
1217-18 (10th Cir. 2007), cert. denied, ___ U.S. ___, 128 S.
Ct. 1922 (2008). The Hamilton court noted, “In evaluating the
substantive reasonableness of a sentence, we ask whether the
length of the sentence is reasonable considering the statutory
factors delineated in 18 U.S.C. § 3553(a).” Id. With respect to
the factors in § 3553(a), we have recently stated that:
[A]ppellate courts must give due deference to the
district court’s decision that the § 3553(a) factors, on
a whole, justify the extent of the variance. This def-
erence is required because the sentencing judge is in
a superior position to find facts and judge their
import under § 3553(a) in the individual case. The
judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and
gains insights not conveyed by the record. The sen-
tencing judge has access to, and greater familiarity
with, the individual case and the individual defen-
dant before him than the Commission or the appeals
court. Moreover, district courts have an institutional
advantage over appellate courts in making these
sorts of determinations, especially as they see so
many more Guidelines sentences than appellate
courts do. In arriving at a sentence, a district court
need not expressly state how each of the § 3553(a)
4888 UNITED STATES v. DEWEY
factors influenced its decision: the district court need
not tick off each of the § 3553(a) factors to show that
it has considered them. Instead, appellate courts
assume that district judges know the law and under-
stand their obligation to consider all of the § 3553(a)
factors, not just the Guidelines.
United States v. Autery, 555 F.3d 864, 872-73 (9th Cir. 2009)
(internal citations and quotations omitted). “Nevertheless, we
may reverse if, upon reviewing the record, we have a definite
and firm conviction that the district court committed a clear
error of judgment in the conclusion it reached upon weighing
the relevant factors.” United States v. Amezcua-Vasquez, 567
F.3d 1050, 1055 (9th Cir. 2009).
To support his position that the district court imposed an
unreasonable sentence, Dewey reviews the mandate of
§ 3553(a). For example, Dewey discusses that post Booker,
sentencing courts must (1) impose a sentence no greater than
necessary, (2) broaden consideration of the factors set out in
§ 3553(a), and (3) must not accord the Guideline calculation
greater weight than the other § 3553(a) factors. Though
Dewey correctly sets out the requirements upon which a dis-
trict court judge’s sentence is reviewed for substantive reason-
ableness, he does not point out or suggest that the district
court failed to account for the relevant factors.
[8] Dewey essentially makes two arguments to support his
contention that the sentence he received was unreasonable.
First, Dewey claims that he is not a “major dealer,” and the
sentence imposed was more appropriate for what a “major
dealer” would receive. However, he does not cite any author-
ity to support his position that career offender designation is
reserved for “major dealers.” The district court, in discussing
Dewey’s criminal history, noted that the instant offense was
Dewey’s third felony drug trafficking offense. Therefore,
Dewey’s within-guideline sentence cannot be deemed unrea-
UNITED STATES v. DEWEY 4889
sonable when his prior felony offenses bring him within the
Guidelines as a career offender.
Second, Dewey argues that his sentence is unreasonable in
light of the sentence his co-conspirator, Olson, received. 18
U.S.C. § 3553(a)(6) directs sentencing courts to consider the
need to avoid unwarranted sentence disparities among defen-
dants with similar records who have been found guilty of sim-
ilar conduct. Though Dewey cites this section, he does not
attempt to establish that Olson’s criminal record was similar
to his. Therefore, this claim is without merit, and we conclude
the district court did not abuse its discretion in imposing
Dewey’s reasonable sentence.
D. Withdrawal of Guilty Plea
Finally, Dewey contends the district court erred when it did
not treat his letter to the court, which pertained to his being
dissatisfied with Mr. Obie’s assistance, as a motion to with-
draw his guilty plea.
[9] To begin with, “[t]he Defendant has no ‘right’ to with-
draw his plea.” United States v. Rubalcaba, 811 F.2d 491, 493
(9th Cir. 1987). “If a motion for withdrawal of a plea of guilty
. . . is made before sentence is imposed . . . the court may per-
mit withdrawal of the plea upon a showing by the defendant
of any fair and just reason.” Id. (citing Fed. R. Crim. P.
11(d)(2)(B), formerly 32(d) (emphasis added)). The fair-and-
just standard requires a district court to vacate the guilty plea
when it is “shown to have been unfairly obtained or given
through ignorance, fear or inadvertence.” Rubalcaba, 811
F.2d at 493.
[10] At the ex parte hearing, the district court noted that no
motion to withdraw Dewey’s plea was before it. Moreover, at
the close of the ex parte hearing on the motion to withdraw
as counsel, the court recommended to both Mr. Obie and
Dewey that they talk fully and freely between themselves to
4890 UNITED STATES v. DEWEY
whatever extent they thought necessary and appropriate to be
prepared to go forward with sentencing. This statement by the
court to Mr. Obie and Dewey served as an implicit invitation
for them to file a formal motion to withdraw Dewey’s plea of
guilty should they deem such a motion necessary. No such
motion was filed. We hold that no error occurred when the
trial court did not treat Dewey’s letter as a motion to with-
draw his guilty plea. To the extent this issue is connected to
Dewey’s ineffective assistance of counsel claim, again,
Dewey is not foreclosed from raising such a claim in a § 2255
hearing.
III. CONCLUSION
We decline to review Dewey’s ineffective assistance of
counsel claim. We affirm the trial court’s other rulings.
AFFIRMED.