United States v. Porter

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 95-60163
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMES PORTER,

Defendant-Appellant.

Appeal from the United States District Court
For the Northern District of Mississippi
(3:93 CV 196 (1:92 CR 131))

( August 30, 1995 )

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*

BACKGROUND

James J. Porter pleaded guilty pursuant to a plea agreement

which provided that Porter would waive indictment, plead guilty to

one count of conspiracy to possess 19 grams of crack cocaine with

*
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should not be published.
intent to distribute, and provide truthful information and

testimony. The government agreed not to prosecute Porter for any

related or similar offenses. The agreement expressly provided that

there was no agreement as to what punishment or sentence the court

may impose and that both parties agreed that punishment would be

entirely in the court's discretion.

At the guilty plea hearing, the government filed a one-count

information charging that "from about June 1992 to August 7 of

1992" Porter conspired with "other persons known and unknown to

possess with intent to distribute approximately 19 grams of cocaine

base which is crack cocaine". Porter waived a formal reading of

the information. The court asked Porter if he had in fact

committed the offense, and Porter replied that he had. The court

then asked the government to state the factual basis for the

charge. The government stated that:

[B]eginning around June 1992 James Porter
negotiated to supply Joe Smith[,] Jr., a drug
dealer in Columbus, Mississippi, with
approximately 19 grams of cocaine base for
distribution in the Columbus, Mississippi[,]
area.

Smith placed telephone calls to Mr. Porter,
who is located in Meridian. Called from a
place in the Columbus, Mississippi[,] area to
negotiate the purchase. Later Smith agreed to
cooperate with the agent, and on August 7,
1992, a controlled purchase of 19 grams of
cocaine base was made from Mr. Porter. . . .

The court determined that the factual basis was sufficient,

and Porter pleaded guilty. The court informed Porter that a

presentence report (PSR) would be prepared and that he would be

afforded the opportunity to read the PSR. The court released

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Porter with the government's concurrence. The prosecutor advised

the court that Porter had been cooperating "in what we think is

going to be some significant investigations".

At the sentencing hearing, the court asked Porter's counsel

whether he had the opportunity to read the PSR and review it with

his client. Porter's counsel responded that he had. The court

asked whether there were any unresolved questions, and counsel

stated that there were none. The court also asked Porter whether

he had anything to say to mitigate his punishment. Porter's answer

was: "No, sir, Your honor."

Porter's counsel argued to the court for leniency in

sentencing Porter, stating that Porter had taken it upon himself to

cooperate. The government confirmed that Porter had cooperated,

but indicated that his cooperation had not "risen to the level of

substantial assistance". The prosecutor suggested that there might

be an opportunity for a Rule 35 motion after sentencing if the

court allowed Porter to report voluntarily. The court explained to

Porter that if the government was not in a position to make a

departure pursuant to U.S.S.G. § 5K1.1, the court was bound by the

mandatory minimum sentence. The court added that the government

could make a Rule 35 motion within one year for substantial

assistance rendered during that period. After sentencing Porter,

the court allowed him sixty days to report "to give him an

opportunity to complete the matter of cooperation with the

authorities".

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 Porter did not appeal, but filed the instant motion pursuant

to 28 U.S.C. § 2255. Porter alleged that the plea agreement was

not supported by a sufficient factual basis in violation of Fed. R.

Crim. P. 11(f). Specifically, he asserted that because a

government informant cannot be a coconspirator, he could not be

guilty of the offense charged. He also alleged that he was denied

effective assistance of counsel because his lawyer failed to

investigate whether Smith was an informant, and failed to inform

Porter that the coconspirator argument was an affirmative defense.

Last, Porter alleged that the government breached the plea

agreement. According to Porter, he had an oral agreement with the

government that it would seek a downward departure if he

cooperated, and he fulfilled his end of the bargain but the

government did not.

The district court denied the motion. After Porter filed

notice of appeal, the court granted his motion to proceed in forma

pauperis (IFP).

OPINION

In reviewing the denial of a § 2255 motion, this Court reviews

the district court's factual findings for clear error, and

questions of law are reviewed de novo. United States v. Gipson,

985 F.2d 212, 214 (5th Cir. 1993).

Porter raises his district-court argument that the guilty plea

was not supported by a factual basis in violation of Rule 11(f).

The district court, in rejecting this claim, determined that:

the factual basis presented both at the plea
hearing and in the presentence report -- to

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 which Porter never objected -- "was
sufficiently specific to allow the court to
determine that [Porter's] conduct was within
the ambit of that defined as criminal," United
States v. Oberski, 734 F.2d 1030, 1031 (5th
Cir. 1984), and reveals that the charged
conspiratorial conduct occurred before the co-
conspirator began cooperating with the
government, not after. . . .

Porter argues that he was not presented with the PSR until

after he was incarcerated and that, had he seen it before, he would

have objected to it. He raises whether, because he did not object

to the PSR, the district court violated Fed. R. Crim. P. 32.

Porter also maintains that the PSR could not supply a factual basis

because it contained only hearsay statements by Smith, and there

was no evidence showing that the conspiracy was underway before

Smith began cooperating with the government.

A defendant who has plead guilty or has been convicted and has

exhausted 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, 165 (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

a constitutional violation has probably resulted in the conviction

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of one who is actually innocent". Id. at 232 (internal quotations

and citation omitted).

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. Therefore, to be cognizable

on § 2255, the movant must show that the alleged error 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); United

States v. Prince, 868 F.2d 1379, 1385 (5th Cir.), cert. denied, 493

U.S. 932 (1989).

Porter submits no reason why the Rule 11 issue was not raised

on direct appeal. The plea colloquy shows that both the

information and the government's recitation of the factual basis

for the plea argument stated that the conspiracy began in June.

The factual basis specifically provided that Smith began

cooperating after he and Porter began negotiations. Porter did not

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object to either the information or the government's factual basis.

Thus, he does not make the requisite showing of a miscarriage of

justice which would entitle him to § 2255 relief on this claim.

Porter's argument that the district court violated Rule 32

because the court did not permit him to comment on the PSR was not

raised in 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 and citation omitted). Whether the

court permitted Porter to comment on the PSR is not a purely legal

issue, and this Court will not consider it.

Porter also argues that the district court did not apply the

sentencing guidelines correctly because he was sentenced to 60

months of imprisonment when his base offense level and criminal

history category called for 46 to 57 months of imprisonment.

Porter did not raise this argument in the district court. As noted

above, "[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, 920 F.2d at 321.

Whether the district court correctly sentenced Porter is a

legal question. See United States v. Suarez, 911 F.2d 1016, 1018

(5th Cir. 1990) (the district court's purely legal application of

the guidelines is subject to de novo review). No miscarriage of

justice will occur, however, if the court does not review this

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argument. Porter was sentenced to 60 months of imprisonment, the

statutory minimum. 21 U.S.C. §§ 841 and 846 (West 1981 & Supp.

1995). The guidelines provide that "[w]here a statutorily required

minimum sentence is greater than the maximum of the applicable

guideline range, the statutorily required minimum sentence shall be

the guideline sentence". § 5G1.1(b); see United States v.

Schmeltzer, 960 F.2d 405, 408 (5th Cir.) ("statutorily mandated

sentences are incorporated into the Sentencing Guidelines and

prevail over the guidelines when in apparent conflict"), cert.

denied, 113 S. Ct. 609 (1992).

Porter asserts that the plea agreement led him to believe that

he was entitled to a downward departure and that the government

breached the agreement. In rejecting this claim, the district

court reasoned that under § 5K1.1, the government has the power,

but not the duty, to file a motion for a downward departure when a

defendant has "`substantially assisted'". Further, the court noted

that the written plea agreement contained no such agreement and

that Porter repeatedly advised the court that the terms of the plea

were encompassed by the written agreement.

In his reply brief, Porter points out that at sentencing the

government stated that his assistance "hasn't risen to the level of

substantial assistance". Porter argues that the government, in

this statement, alludes to its oral promise that it would seek a

departure. Porter also argues that the government's statement

regarding his release on bond that he had been "assisting the FBI

and the Mississippi Bureau of Narcotics in what was going to be

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significant investigations" is evidence that there was an oral

agreement for a departure.

Porter contends that he attempted to provide "substantial

assistance," but that the federal agents repeatedly cancelled

prearranged meetings, and that he did not have the means to

coordinate his assistance because his car had been seized as a

result of his arrest. He further maintains that in spite of these

obstacles, he nevertheless provided information that led to the

arrest of two suspects.

"[W]hen a guilty plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such promise must be

fulfilled." United States v. Valencia, 985 F.2d 758, 761 (5th Cir.

1993) (internal quotations and citation omitted). Porter, as the

party alleging a breach of the plea agreement, bears the burden of

proving the underlying facts establishing a breach by a

preponderance of the evidence. United States v. Garcia-Bonilla, 11

F.3d 45, 46 (5th Cir. 1993). To determine whether the government

breached the plea agreement, the court must consider "whether the

government's conduct is consistent with the parties' reasonable

understanding of the agreement". Id. (internal quotations

omitted). This inquiry is a question of law to be reviewed de

novo. Id.

The written plea agreement contained no provision for the

government to file a downward departure. Porter assured the court

that no promises, other than what was contained in the written

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agreement, were made to him. The government's statements do not

indicate that it was bound to file a § 5K1.1 motion. Thus, the

government's conduct in not moving for a § 5K1.1 departure is

consistent with the parties' reasonable understanding of the

agreement. There was no breach.

Porter raises his district court argument that he received

ineffective assistance of counsel, but states for the first time on

appeal that his lawyer was ineffective because he did not present

and discuss the PSR with him. He questions whether his lawyer even

looked at the PSR, but acknowledges that he has no way of knowing.

Porter further argues for the first time on appeal that his lawyer

was ineffective for not objecting to the court's sentence of 60

months when the Guidelines called for less and for not objecting to

the PSR. He adds that his lawyer was ineffective for advising him

to waive his Fifth Amendment right to be indicted by a grand jury

which would have revealed the fact that "the conspiracy began in

June as well as the bases [sic] of the negotiations".

As noted above, this Court will 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, 920 F.2d at 321. These issues are

not purely legal. See United States v. Faubion, 19 F.3d 226, 228

(5th Cir. 1994) (ineffective assistance is a mixed question of law

and fact). Thus, this Court will not consider them for the first

time on appeal.

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 Porter raises his district-court arguments that his sentence

would have been different had counsel been more diligent in his

investigation. In his reply brief, Porter expounds on this

allegation, asserting that if his lawyer had investigated the

circumstances of the case, he would have discovered the affirmative

defense that one cannot conspire with a government informant or

that a buyer-seller relationship does not constitute a conspiracy.

Porter also argues that his lawyer was ineffective for "failing to

secure the plea agreement in regards of both substantial assistance

and guideline versus statutory application, and for failing to file

any pretrial motions that may have aided in his defense's remaining

arguments". Construing his pleadings broadly, Porter raised these

allegations in rebuttal to the government's answer to his

complaint.

This Court reviews conclusions regarding mixed questions of

fact and law such as ineffective-assistance-of-counsel claims de

novo. Faubion, 19 F.3d at 228. The district court's factual

findings are reviewed for clear error.

To prevail on a claim of ineffective assistance of counsel, a

defendant 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, 689-94

(1984). To show Strickland prejudice, a defendant must demonstrate

that counsel's errors were so serious as to "render[] the result of

the trial unreliable or the proceeding fundamentally unfair".

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Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993). "Unreliability

or unfairness does not result if the ineffectiveness of counsel

does not deprive the defendant of any substantive or procedural

right to which the law entitles him." Id. at 844. In evaluating

such claims, the court indulges in "a strong presumption" that

counsel's representation fell "within the wide range of reasonable

professional competence, or that, under the circumstances, the

challenged action `might be considered sound trial strategy'".

Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988) (citation

omitted). "A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's

perspective at the time." Strickland, 466 U.S. at 689. A failure

to establish either deficient performance or prejudice defeats the

claim. Id. at 697.

The two-part Strickland test applies to guilty pleas in which

ineffective assistance of counsel is alleged. Hill v. Lockhart,

474 U.S. 52, 59 (1985). To satisfy the prejudice requirement, "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". Id. at 60.

The district court determined that Porter's counsel was not

ineffective for failing to assert the defense that one cannot

conspire with a government informant. Although Porter is correct

in asserting that a confidential informant or government agent

could not be a coconspirator, and a conspiracy cannot exist between

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a defendant and a confidential informant or a government agent, see

United States v. Manotas-Mejia, 824 F.2d 360, 365 (5th Cir.), cert.

denied, 484 U.S. 957 (1987), as noted by the district court, the

factual basis established that the charged conspiratorial conduct

occurred before the coconspirator began cooperating with the

government, not after. Thus, Porter fails to establish that his

counsel was deficient for not asserting this defense.

The district court determined that because Porter was not

entitled to a downward departure, this ground of ineffective

assistance was meritless. As discussed above, Porter was not so

entitled. Therefore, counsel was not deficient in this regard.

The district court noted that counsel was not deficient for

failing to file pretrial motions because the case did not follow

the standard procedures associated with formal indictment. Porter

has not stated what motions should have been filed or what

information was forfeited as a result of the failure to file the

motions. Consequently, he cannot establish prejudice. See

Lockhart, 113 S. Ct. at 844.

Porter has filed a motion to proceed IFP in this Court. The

motion is denied as moot inasmuch as the district court granted

Porter's motion to proceed IFP on appeal.

Porter filed a motion to expedite appeal arguing that, unless

his appeal is expedited, he might have served the amount of time he

should have been sentenced to. This Court grants such motions only

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for "good cause shown". 5th Cir. R. 27.5. Inasmuch as Porter has

failed to show good cause, this motion is denied.

AFFIRMED

opin\95-60163.opn
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