UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30205
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES LAMPTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CR-221-ALL)
August 31, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
BACKGROUND
Charles Lampton pleaded guilty to conspiracy to possess with
intent to distribute cocaine. Lampton was sentenced to a term of
imprisonment of 70 months to be followed by a four-year term of
supervised release. Lampton did not file a direct appeal.
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Lampton filed a 28 U.S.C. § 2255 motion alleging that his
conviction and sentence should be vacated on the following grounds:
1) that his guilty plea was involuntary because the district court
accepted his guilty plea without requiring a written plea
agreement; 2) that the district court erred in imposing an enhanced
sentence without notice; 3) that the district court misapplied the
guidelines by sentencing Lampton based on his alleged involvement
with 3.5 to 5 kilograms of cocaine; 4) that the district court
erred in accepting his guilty plea because Lampton could not be
validly convicted of conspiring with a government agent; 5) that
the government engaged in entrapment; 6) that his counsel was
ineffective; and 7) that his plea was involuntary because he was
not advised prior to entry of his plea that he was subject to a
fine.
The government responded to the motion and also argued that
Lampton is procedurally barred from attacking his guilty plea and
sentence because he did not challenge them on direct appeal and he
had failed to allege a valid ineffectiveness claim to explain such
failure.
The district court denied the motion. The court reached the
merits but also held that the issues were procedurally barred. The
court determined that the ineffectiveness claim was "a transparent
effort" directed at his now deceased attorney. Lampton appealed,
and the district court granted his motion for leave to appeal in
forma pauperis.
2
OPINION
In his statement of issues, Lampton lists only ineffective-
assistance-of-counsel claims. However, in the summary of his
arguments, he argues that his guilty plea was involuntary as a
result of the trial court's failure to conduct his rearraignment in
accord with Fed. R. Crim. P. 11. Lampton argues that he did not
receive notice that his sentence would be enhanced from 60 to 70
months in accord with Rule 11(c). He argues that he was allowed to
enter a guilty plea without the benefit of a written plea agreement
and, therefore, that there was no evidence that the prosecutor had
agreed to a 60-month sentence as part of the plea bargain. Lampton
contends the district court violated Rule 11 because, in the
absence of a written plea agreement, there was no factual basis for
the acceptance of his plea.
A defendant who has been convicted and has exhausted or waived
his right to appeal is presumed to have been "`fairly and finally
convicted'". United States v. Shaid, 937 F.2d 228, 231-32 (5th
Cir. 1991) (en banc) (citation omitted), cert. denied, 502 U.S.
1076 (1992). "[A] `collateral challenge may not do service for an
appeal.'" Id. at 231 (quoting United States v. Frady, 456 U.S.
152, 168 (1982)). Therefore, a defendant who raises a
constitutional or jurisdictional issue for the first time on
collateral review must show "both `cause' for his procedural
default, and `actual prejudice' resulting from the error". Id. at
232 (quoting Frady, 456 U.S. at 168). The only exception to the
cause and prejudice test is the "extraordinary case . . . in which
3
a constitutional violation has probably resulted in the conviction
of one who is actually innocent". Id. at 232 (internal quotations
and citation omitted).
The government must invoke the procedural bar in the district
court. United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir.
1992). In this case, the government did raise the issue of
procedural bar in its response to Lampton's motion.
Allegations of error which are not of constitutional or
jurisdictional magnitude which could have been raised on direct
appeal may not be asserted on collateral review in a § 2255 motion.
United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981). Such
errors will be considered only if they could not have been raised
on direct appeal and, if condoned, would result in a complete
miscarriage of justice. Shaid, 937 F.2d at 232 n.7.
Although a failure to comply with the formal requirements of
Rule 11 is neither constitutional nor jurisdictional and can and
should be raised on direct appeal, in some cases Rule 11 violations
can have a constitutional dimension bearing on the knowing and
voluntary nature of the guilty plea. In order to be cognizable on
§ 2255, the movant must show that the alleged Rule 11 violation
resulted in a "`complete miscarriage of justice'" or in a
proceeding "`inconsistent with the rudimentary demands of fair
procedure'". United States v. Timmreck, 441 U.S. 780, 783-84
(1979) (citation omitted).
Lampton alleged in the district court that he did not raise
the issues raised in his § 2255 motion on direct appeal due to his
4
counsel's illness and death. Lampton has not specifically
addressed "cause" for his failure to raise the Rule 11 issues on
direct appeal in his brief, but he does generally argue at the
conclusion of his brief that his denial of effective assistance of
counsel "meets the procedural test in Frady and Carrier".
As discussed above, Frady requires a showing of "cause" and
"actual prejudice." 456 U.S. at 168. Carrier held that
constitutionally ineffective assistance of counsel, in the form of
failure to raise issues on appeal, can operate as cause for
procedural default. Murray v. Carrier, 477 U.S. 478, 488-92
(1986). Thus, Lampton has asserted that his counsel's failure to
file a direct appeal is "cause" sufficient to overcome the
procedural bar. As discussed below, Lampton has failed to
demonstrate that he requested his counsel to file an appeal.
However, even assuming that Lampton established "cause," he has
failed to demonstrate "actual prejudice" or that the alleged Rule
11 violations resulted in manifest injustice.
Lampton has not shown that the alleged errors resulted in a
miscarriage of justice because he has failed to demonstrate that he
had a plea agreement with the government or that he received an
enhanced sentence. The minutes of Lampton's rearraignment
proceeding reflect that a plea-bargain letter was filed with
respect to codefendant Thomas Smith only. The court reviewed in
detail the plea agreement entered into between Smith and the
government. The district court then, without any reference to a
plea agreement, asked Lampton whether he was pleading guilty
5
because of any promises made to him by anyone, and Lampton
responded in the negative. Lampton again acknowledged that neither
his attorney nor anyone else had told him that he would be
receiving a specific sentence. Lampton assured the court that he
and his counsel had discussed the sentencing guidelines applicable
to his case, and Lampton recognized that any sentence estimate
given to him by counsel could be incorrect. Counsel stated that he
had made no representations to Lampton with respect to his
sentence.
The record does not reflect that there was any plea bargaining
between Lampton and the government, and Lampton and his counsel
confirmed at his rearraignment that there had been no promises made
to him in connection with his plea. "Solemn declarations in open
court carry a strong presumption of verity." Blackledge v.
Allison, 431 U.S. 63, 73-74 (1977). Lampton's assertions under
oath reflected that there had been no plea bargaining in the case.
Further, at the latter part of the rearraignment hearing, the
district court advised Lampton that he could change his position
and persist in a not-guilty plea. Lampton declined to do so and
did not question the district court with respect to the lack of
discussion concerning a plea agreement or the absence of a written
plea agreement.
Nor does the record reflect that Lampton received an enhanced
sentence. The transcript of the rearraignment proceeding reflects
that the district court advised Lampton that his offense carried a
mandatory minimum term of imprisonment of five years and a maximum
6
term of imprisonment of 40 years. Lampton also acknowledged that
it was within the district court's discretion to sentence him in
accord with the sentencing guidelines and that the court could
impose a greater or lesser sentence. Lampton stated that he
understood that the district court could impose the maximum
possible sentence of 40 years. This colloquy reflects that there
was no discussion of an enhanced sentence and that Lampton was
advised that his possible sentence could have greatly exceeded the
70-month sentence imposed.
Further, there is no indication in the record that the
government sought the imposition of an enhanced sentence. See 21
U.S.C. § 851 (a defendant cannot be sentenced to increased
punishment for a drug-related offense unless the government has
filed an information with the court listing the prior convictions
of the defendant relied upon). As discussed above, it was not
promised or indicated to Lampton prior to his guilty plea that he
would receive the mandatory minimum sentence of 60 months. He
received a 70-month sentence, which was the lowest sentence
possible under the applicable guidelines. Because there was no
basis for a determination that Lampton received an enhanced
sentence, the district court's failure to advise Lampton of such
fact was not error and certainly did not result in manifest
injustice.
Lampton argues that his counsel was ineffective because he
advised him to plead without the benefit of a written plea
7
agreement and did not advise him that the agreed upon sentence of
60 months had been increased to 70 months.
Because an ineffective-assistance-of-counsel claim is
constitutional and cannot generally be resolved on direct appeal,
a motion under § 2255 is the proper procedural vehicle for such
claims. United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.),
cert. denied, 113 S. Ct. 621 (1992). To prevail on his claim of
ineffective assistance, Lampton must show 1) that his counsel's
performance was deficient in that it fell below an objective
standard of reasonableness; and 2) that the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668,
687-94 (1984). In the context of a guilty plea, in order to show
prejudice, the defendant must show that "there is a reasonable
probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial". Hill v.
Lockhart, 474 U.S. 52, 59 (1985). A failure to establish either
deficient performance or prejudice defeats the claim. Strickland,
466 U.S. at 697.
Lampton's counsel died several months after Lampton entered
the guilty plea and, thus, it was not possible for the district
court to obtain his testimony or affidavit concerning his
representation of Lampton. However, as discussed above, there is
no indication in the record that there was any plea bargaining in
the case or that Lampton had been promised that he would receive a
60-month sentence by counsel or any other party. Lampton has not
produced any new evidence demonstrating the existence of such an
8
agreement. Therefore, Lampton has not demonstrated that his
counsel was deficient in failing to require a written plea
agreement or in contesting the imposition of the 70-month sentence.
Lampton argues that his counsel was ineffective because he
failed to object to the PSR recommendation that he be held
accountable for 3.5 to 5 kilograms of cocaine. He argues that it
was not foreseeable to him that the drug transaction would involve
that amount of drugs.
The PSR recommended that Lampton receive a base offense level
of 30 because he participated in discussions to purchase
approximately 5 kilograms of cocaine for $50,000 from the
confidential informant (CI). In the case of jointly undertaken
criminal activity, relevant conduct includes "all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity . . . that occurred during the
commission of the offense, [and] in preparation for that offense .
. . ." See § 1B1.3(a)(1)(B). The district court is required to
determine the scope of the criminal activity that the defendant
agreed to undertake jointly and whether the conduct of other
members in furtherance of the scheme was reasonably foreseeable to
the defendant. In making this determination, "the court may
consider any explicit agreement or implicit agreement fairly
inferred from the conduct of the defendant and others." See §
1B1.3, comment. (n.2).
The factual resume supporting the guilty pleas of Lampton and
codefendant Thomas Smith, which was signed by both defendants,
9
stated that Lampton and the confidential informant (CI) had several
discussions about meetings planned between the coconspirators,
Smith and Lampton, and the CI to discuss the anticipated buy of 10
1/2 pounds of cocaine from the CI. According to the resume, Smith
and Lampton brought the CI $50,000 to buy the 10 1/2 pounds of
cocaine. Even if, as alleged by Lampton, he did not personally
have the funds to purchase the amount of drugs discussed, the PSR
reflects that he introduced the CI to Smith, who was financially
capable of completing the transaction.
The record reflects that Lampton was aware that the conspiracy
involved at least five kilograms of cocaine. Because counsel had
no basis to argue that the amount of drugs involved in the
transaction was unforeseeable to Lampton, counsel was not deficient
in failing to object to the base offense level recommendation in
the PSR.
Lampton argues that counsel was ineffective because he failed
to argue that Lampton could not have conspired with a government
agent. Lampton argues that he negotiated with the government
informant only. Lampton was charged in the indictment with
conspiring with Thomas Smith to possess with intent to distribute
cocaine, and Lampton acknowledged his participation in such
conspiracy by signing the factual resume and by pleading guilty to
the charge. Therefore, an argument by counsel that Lampton
conspired with a government agent only would have been frivolous.
Lampton also argues that his counsel failed to argue that
Lampton was entrapped into committing the drug transaction. He
10
argues that counsel should have raised an "entrapment" defense
because the PSR revealed that the confidential informant initiated
the drug transaction. In the § 2255 motion, Lampton did not allege
this issue as an allegation of ineffectiveness of counsel. Rather,
he contended that "outrageous" government conduct entrapped him and
rendered his guilty plea involuntary.2 The district court
determined that Lampton had "failed to point to any set of facts
which would support his claims of . . . entrapment and/or
outrageous Government conduct". Id. at 54.
This Court need not address issues not considered by the
district court. "[I]ssues raised for the first time on appeal are
not reviewable by this court unless they involve purely legal
questions and failure to consider them would result in manifest
injustice." Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991)
(internal quotation marks and citation omitted). The determination
of an ineffective-assistance-of-counsel claim is a mixed question
of law and fact. See United States v. Faubion, 19 F.3d 226, 228
(5th Cir. 1994). Therefore, it is generally not subject to review
when raised for the first time on habeas appeal.
However, even if the court should determine that the district
court has resolved all factual issues necessary to resolve the
claims by dismissing the entrapment/outrageous-conduct claim,
2
Lampton has apparently abandoned his argument made in the
district court that the agent engaged in "Sentencing Entrapment" by
negotiating sales involving a large amount of cocaine in order to
increase Lampton's sentence. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (appellate court
need not consider issues abandoned on appeal).
11
Lampton has not demonstrated that the failure to address the claim
on appeal will result in manifest injustice. Lampton waived the
defense of entrapment by pleading guilty. See United States v.
Yater, 756 F.2d 1058, 1063 (5th Cir.), cert. denied, 474 U.S. 901
(1985) (when a defendant enters a guilty plea, he waives his right
to assert an entrapment defense).
Lampton argues that counsel was ineffective because he failed
to object to an imposition of a fine against Lampton although he
had not been advised that a fine could be imposed prior to his
guilty plea. Lampton argued in the district court that his plea
was involuntary because neither the court nor his trial counsel
informed him that he would be subject to a fine. He did not argue
in the district court, however, that his counsel was ineffective
for his failure to object to the imposition of the fine.
Therefore, this issue need not be addressed for the first time on
appeal. Varnado, 920 F.2d at 321. In any event, it is clear on
the face of the record that counsel had no basis for arguing this
claim. The record of the rearraignment hearing shows that the
district court advised Lampton prior to his entry of a guilty plea
that, in addition to a term of imprisonment, he was subject to a
fine of $2 million. The court further advised Lampton that he
could be fined under an alternative statutory provision in the
greater amount of $250,000 or twice his gross gain or his victim's
loss.
Lampton argues that counsel was ineffective because he failed
to file a timely notice of appeal on Lampton's behalf and failed to
12
advise him of his right to appeal and how to proceed as an indigent
defendant.
The failure of counsel to perfect an appeal upon request of
his client or failure to advise the client of his right to appeal
and the time limits involved may constitute ineffective assistance,
entitling the defendant to an out-of-time appeal. See United
States v. Gipson, 985 F.2d 212, 215 (5th Cir. 1993). However, a
defendant who fails to advise his attorney that he wished to appeal
may not assert a claim that he was denied the right to file a
direct appeal. See Childs v. Collins, 995 F.2d 67, 69 (5th Cir.),
cert. denied, 114 S. Ct. 613 (1993).
Lampton has not demonstrated that he advised his counsel to
file an appeal on his behalf and that counsel failed to do so. As
previously stated, Lampton's counsel died prior to his filing his
§ 2255 motion. Lampton's allegation in his § 2255 motion that he
and his counsel had discussed appealing his sentence based on the
government or court's failure to notify Lampton that he was
receiving an "enhanced" sentence is frivolous because Lampton did
not receive an enhanced sentence or even a severe guideline
sentence.
Further, the district court, at the conclusion of the
sentencing hearing, advised Lampton of his right to appeal his
conviction and sentence and also that the court would appoint
counsel if he could not afford to retain counsel.3 Lampton
responded that he understood his rights. However, Lampton did not
3
Counsel in the district court was retained.
13
contact the court about the appointment of counsel nor did he
attempt to file an appeal on his own behalf. Lampton did not argue
that he had requested his counsel to file an appeal until he filed
his § 2255 motion six months after judgment was entered against him
in his criminal case, and after his counsel's death. Lampton has
not demonstrated that he instructed his counsel to file an appeal.
Lampton argues that his counsel was ineffective because he
failed to conduct discovery or an investigation of the drug
conspiracy. Lampton contends that if counsel had made pretrial
discovery, he would have learned that a defendant cannot conspire
with a CI and that the amount of drugs attributed to Lampton was
not reasonably foreseeable to Lampton. Lampton argues that he can
show "Hill prejudice" because, if he had proceeded to trial, he
would have shown that a defendant cannot conspire with a government
agent.
Lampton has not shown that his counsel was deficient or that
he was prejudiced as a result of his counsel's failure to further
investigate his case. As discussed, Lampton was convicted for
conspiring with codefendant Smith and not with the CI. Further,
the PSR and the factual resume reflect that Lampton was fully
involved in the conspiracy and was aware that it would involve the
purchase of approximately five kilograms of cocaine. Lampton has
not demonstrated that his counsel was ineffective.
AFFIRMED
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