UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 95-10270
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN D. WALKER,
Defendant-Appellant.
____________________________________________________
_
Appeal from the United States District Court
for the Northern District of Texas
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_
February 2, 1996
Before WISDOM, HIGGINBOTHAM, and PARKER, Circuit
Judges.
WISDOM, Circuit Judge:*
John D. Walker, convicted of robbery of an armored truck,
brings this 28 U.S.C. § 2255 motion challenging his sentence.
After a review of the record, we find that the district court did not
err in denying his motion. We AFFIRM.
I.
Walker pleaded guilty to counts two and three of a three-count
indictment charging him with interference with interstate
commerce by robbery (18 U.S.C. § 1951) and use of a firearm in
*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
relation to a crime of violence (18 U.S.C. § 924(c)). The charges
stemmed from the robbery of an armored truck, during which
$452,000 was taken. Three other defendants were also convicted
for their involvement in this crime.
The district court sentenced Walker to 136 months for count
two and to 60 months for count three, to run consecutive with the
term imposed for count 2. In addition, the court ordered Walker to
pay $412,000 restitution, payable in $200 per month installments
commencing 60 days after Walker's release from prison.1
On direct appeal, Walker challenged his sentence on the basis
that the district court erred by refusing to reduce his sentence for
acceptance of responsibility. In an unpublished per curiam
opinion, this Court affirmed Walker's sentence.
Walker then filed a section 2255 motion challenging his
sentence on numerous grounds, which are discussed below. The
same district court judge who presided over Walker's sentencing
denied this motion without an evidentiary hearing. Walker now
asks this Court to review the denial of his section 2255 motion.
II.
When reviewing a district court's denial of a section 2255
motion, this Court subjects findings of fact by the district court to
the clearly erroneous standard of review and applies the de novo
1
The government recovered $40,000 of the stolen funds from
one of the defendants.
2
standard of review to questions of law.2 Prisoners in federal
custody can attack their sentence under section 2255 for
constitutional violations in the sentencing proceedings and also for
nonconstitutional errors that, if not corrected, would result in a
complete miscarriage of justice.3 Even with respect to
constitutional violations, the defendant cannot raise those claims
for the first time in a section 2255 motion without also
demonstrating cause for not raising the issue on direct appeal and
actual prejudice stemming from the error.4
III.
Walker contended in his brief to the district court that his
counsel was ineffective because his attorney did not object to the
enhancement of his sentence under U.S.S.G. § 3B1.1(a) for being
a leader or organizer of a crime with five or more participants and
under U.S.S.G. § 2B3.1(b)(1) for taking the property of a financial
institution. Having observed Walker's attorney during the
sentencing and habeas proceedings and having been unable to find
any evidence that Walker's counsel was ineffective, the district
court denied his claim. Walker now appeals this issue solely on the
basis that the district court used the incorrect standard to evaluate
this claim.
2
United States v. Casiano, 929 F.2d 1046, 1051 (5th Cir. 1991).
3
United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994).
4
Id.
3
The district court applied the standard set forth by the United
States Supreme Court in Strickland v. Washington.5 Under this
standard for ineffective assistance, a defendant must establish that
(1) his counsel's representation fell below an objective standard of
reasonableness and (2) that but for the unprofessional errors, there
is a reasonable probability that the outcome of the proceeding
would have been different.6 Walker argues that the Strickland
standard was modified in Murray v. Carrier7 and that the district
court erred by not invoking that test. In fact, Murray recognizes
that an isolated error by a defendant's counsel can constitute
ineffective assistance only when that error alone is "sufficiently
egregious and prejudicial".8 This statement does not direct courts
to find ineffective assistance whenever a defendant's counsel
commits a single error, as Walker contends; rather, it allows courts
to find ineffective assistance in those rare cases in which a single
error satisfies the two-prong Strickland standard. Accordingly, we
hold that the district court did not err in evaluating Walker's claim
under the Strickland analysis.
5
466 U.S. 668 (1984).
6
United States v. Hoskins, 910 F.2d 309, 310 (5th Cir. 1990)
(citing Strickland, 466 U.S. at 688, 694).
7
477 U.S. 478 (1986).
8
Id. at 496.
4
IV.
Walker also directly challenges the district court's
enhancement of his sentence for being a leader or organizer of the
crime and for taking the proceeds of a financial institution. He
asserts that there was insufficient evidence to support either
enhancement.
The clearly erroneous standard applies to the district court's
factual findings regarding the application of the sentencing
guidelines.9 When deciding whether enhancement is warranted, the
court may consider all relevant evidence that has an indicia of
reliability.10
The Presentence Investigation Report (PIR) in the instant case
and evidence in the record contain facts that support both
enhancements.11 First, U.S.S.G. § 3B1.1(a) instructs the court to
increase a defendant's offense level by four levels "[i]f the
defendant was an organizer or leader of a criminal activity that
involved five or more participants". In challenging this
enhancement, Walker relies primarily on the fact that only three
other defendants were indicted and sentenced, arguably bringing
the total number of participants only to four. The sentencing
guidelines, however, define "participant" as one "who is criminally
9
United States v. Ronning, 47 F.3d 710, 711 (5th Cir. 1995);
United States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990).
10
United States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992).
11
This Court has recognized that the PIR has sufficient indicia
of reliability to justify the district court's reliance on it when
determining a sentence. Alfaro, 919 F.2d at 966.
5
responsible for the commission of the offense, but need not have
been convicted".12 The PIR states that the father-in-law of another
defendant was involved in the crime and also refers to Walker's
testimony to an FBI special agent, in which Walker stated that an
employee of the armored-truck also assisted with the robbery.
Additionally, Walker and co-defendant Mizell told the special
agent that they delivered some of the stolen money to an individual,
whom the police have not been able to identify, on behalf of co-
defendant William Brown.
In the light of these facts, which are supported by Walker's
own statements, the existence of at least five participants is
plausible13 and the enhancement of Walker's sentence under §
3B1.1(a) is not clearly erroneous.14
Second, Walker argues that the district court should not have
enhanced his sentence two levels under U.S.S.G. § 2B3.1. Under
12
U.S.S.G. § 3B1.1 cmt. 1.
13
See Ronning, 47 F.3d at 711.
14
Walker also argues that he was not a leader or organizer of
any of the participants. It is only necessary that a defendant
organize or lead at least one of the participants. Ronning, 47 F.3d
at 711-12; see also U.S.S.G. § 3B1.1 cmt. 2. When making this
determination, the court can consider various factors, such as the
defendant's "exercise of decision making authority, .
. . recruitment of accomplices, . . . claimed right to a larger share
of the fruits of the crime, . . . and the degree of control and
authority exercised over others". U.S.S.G. § 3B1.1 cmt. 4. The
stipulated facts, the PIR, and the testimony at the sentencing
hearing indicate that Walker was one of the primary organizers of
the robbery and that he was the one who brought Mizell into the
crime. The special agent, in particular, testified that the FBI's
investigation revealed that Walker made all the arrangements for
the crime and was the planner for the group. Accordingly, the
district court's finding that Walker was a leader/organizer is not
clearly erroneous.
6
this section, the court may raise a defendant's offense level if the
"the property of a financial institution . . . was taken".15 The facts
to which Walker stipulated support this enhancement. In the
factual resume appended to his plea agreement, Walker agreed that
the money that he stole from the armored truck was in transport
from a federal reserve bank to various banks and credit unions.
This uncontroverted statement establishes that the stolen proceeds
were the property of financial institutions, justifying the two-level
increase under § 2B3.1.
V.
Walker next challenges several statements in the PIR.
Specifically, Walker argues that the probation officer who
compiled the PIR breached her duties under Fed. R. Crim. Proc. 32
by stating that the crime involved five individuals and
recommending the corresponding enhancement under U.S.S.G. §
3B1.1(a); concluding that the stolen funds belonged to a financial
institution and recommending the corresponding enhancement
under U.S.S.G. § 2B3.1(b)(1); advising the court to order Walker
to pay $412,000 in restitution; and accepting the testimony of co-
defendant Cynthia Mizell. Walker's attack of the PIR in this
manner, however, is improper with a section 2255 motion. A Rule
32 claim with respect to correcting the PIR can be raised on direct
appeal or with a Fed. R. Crim. Proc. 35 motion to correct the
15
U.S.S.G. § 2B3.1(b)(1).
7
sentence, but not with a post-conviction section 2255 motion.16
Thus, Walker's attempt to correct the PIR with his section 2255
motion must fail.
VI.
Walker also contends that the district court erroneously
ordered restitution by not considering Walker's relative culpability
and ability to pay. This argument is also inappropriate under a
section 2255 motion. Section 2255 only covers violations that are
constitutional in nature; restitution, like a fine, is a matter related
to sentencing that should have been raised on direct appeal.17
Walker further argues that this issue was not raised on direct
appeal due to the ineffective assistance of his counsel. This Court
has held that claims of ineffective assistance of counsel for failure
to challenge a fine are beyond the scope of section 2255. 18 This
limitation stems from the fact that section 2255 claims can only be
raised by persons in federal custody who assert that their custody
is unlawful.19 Faced with the Strickland standard, defendants, to
16
United States v. Armstrong, 951 F.2d 626, 630 (5th Cir.
1992); see United States v. Weintraub, 871 F.2d 1257, 1266 (5th
Cir. 1989); United States v. Smith, 844 F.2d 203, 206 (5th Cir.
1988); see also United States v. Schlesinger, 49 F.3d 483, 485-86
(9th Cir. 1995).
17
See Segler, 37 F.3d at 1135 (holding that a defendant may not
challenge his fine with a section 2255 motion).
18
Id. at 1136.
19
Id.
8
prevail, must establish that the ineffective assistance prejudiced
them in such a way so as to create a harm relating to their custody.20
Because the failure of a defendant's attorney to challenge a fine
does not relate to his incarceration, such claims are improper under
section 2255.21 We extend this reasoning to encompass restitution;
if a fine does not relate to unlawful custody, then neither does
restitution. For this reason, Walker's challenge to the ordered
restitution and accompanying claim of ineffective assistance of
counsel do not pertain to unlawful custody and, accordingly, fall
outside the scope of section 2255.
VII.
Walker's final challenge asserts that the district court erred by
dismissing his section 2255 motion without holding an evidentiary
hearing. Walker argues that an evidentiary hearing was warranted
to develop factual issues concerning his claim of ineffective
assistance of counsel, the number of culpable participants, the
proceeds of the robbery and whether they were the property of a
financial institution. Moreover, Walker contends that there should
have been an evidentiary hearing to consider the extent to which
the sentencing court relied upon the testimony of Mizell, who later
perjured herself with respect to her own level of involvement in the
crime, when denying an adjustment for acceptance of
20
Id.
21
Id.
9
responsibility. The denial of an evidentiary hearing is reviewed
under the abuse of discretion standard.22
The district court can deny section 2255 motions without an
evidentiary hearing only if "the motion, files, and records of the
case conclusively show that the prisoner is entitled to no relief".23
Considering the substantial evidence in the record, stipulated facts,
and sentencing hearings covering all of the challenged issues, we
find that the district court did not abuse its discretion by relying
solely on record evidence to deny the defendant's motion.
First, with respect to the allegations of ineffective assistance
of counsel, Walker asserts that his attorney failed to object to the
enhancement of his sentence for being a leader or organizer and for
taking proceeds of a financial institution. As set forth above,
however, the record contains substantial evidence of these facts,
including the incriminating testimony of Walker himself. Walker
also does not offer any evidence that contradicts or goes beyond the
record evidence. Accordingly, it was appropriate for the court to
rule on this matter without holding an evidentiary hearing.
Second, the record and other evidence, including statements
made by Walker to an FBI special agent, support the existence of
five or more participants in the heist. Additionally, the stipulated
facts and PIR set forth the source and intended recipients of the
money before it was stolen from the armored truck. This evidence
22
United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.
1992).
23
Id.
10
conclusively demonstrates that Walker was not entitled to relief,
negating the necessity of an evidentiary hearing on these claims.
Finally, even if Mizell later perjured herself, the record
contains other evidence indicating that Walker failed to accept
responsibility,24 such as failing to admit to the crime until after his
arrest and the commencement of trial preparations by the
government, failing to return any of his portion of the stolen
money, and providing information to the government that was
inconsistent with facts that were independently verified. All of
these facts are independent of Mizell's testimony and are supported
by the record. For these reasons, the district court did not err in
relying upon the existing evidence to rule upon the defendant's
section 2255 motion without an evidentiary hearing.
VIII.
For the foregoing reasons, we find that the district court did
not err when it denied Walker's section 2255 motion. We
AFFIRM.
24
With respect to Walker's allegations of perjury, Walker also
failed to support those allegations with "substantial factual
assertions capable of resolution by an evidentiary hearing". United
States v. Fishel, 747 F.2d 271, 273 (5th Cir. 1984).
11