United States v. Ancira

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-50470
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

RICHARD M. ANCIRA,
Defendant-Appellant.

________________________________________________

Appeal from the United States District Court for the
Western District of Texas
(A-95-CA-225)
________________________________________________

March 25, 1996
Before GARWOOD, JONES and DeMOSS Circuit Judges.*

GARWOOD, Circuit Judge:

Defendant-appellant Richard M. Ancira (Ancira) pleaded guilty

to the charge of possession with intent to distribute more than 100

grams of heroin in violation of 21 U.S.C. § 841(a)(1). His

conviction and sentence were affirmed on appeal. Ancira presently

appeals the district court’s denial of his motion to vacate, set

aside or correct his sentence, filed pursuant to 28 U.S.C. § 2255.

*
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this opinion should not be published and is not precedent except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.
We affirm.

Facts and Proceedings Below

Ancira was arrested on December 11, 1990, in Austin, Texas.

A confidential informant alerted the Austin Police Department that

Ancira was a heroin dealer who had previously sold heroin to the

informant. After giving the police a description of Ancira and his

vehicle, the informant contacted Ancira and arranged to purchase an

eighth of one ounce of heroin. The police, who had already placed

Ancira’s vehicle under surveillance based on the informant’s

description, observed Ancira leave the residence from which he had

arranged this meeting with the informant. When Ancira arrived at

the designated meeting place, and the informant confirmed Ancira’s

identity, the police determined that they had probable cause and

arrested Ancira. Ancira was searched incident to his arrest, and

police officers found thirty-three balloons of heroin and $1,680 in

cash. Ancira then disclosed the location of additional heroin at

his residence, and, after obtaining a search warrant based on this

information, the police uncovered another 487 balloons of heroin.

The total amount of heroin seized incident to Ancira’s arrest and

at his residence was 108.89 grams.

Ancira was charged with conspiracy to possess with intent to

distribute more than 100 grams of heroin (count one), in violation

of 21 U.S.C. §§ 841(a)(1) and 846, and possession with intent to

2
distribute more than 100 grams of heroin (count two), in violation

of 21 U.S.C. § 841(a)(1). He complained that the police did not

have probable cause to arrest him, but the district court denied

his motion to suppress the evidence obtained incident to his

arrest. Thereafter, Ancira entered into a conditional plea

agreement whereby he would plead guilty to the second count of his

indictment while preserving his right to appeal the district

court’s denial of his motion to suppress. The district court

sentenced Ancira to a 240-month term of imprisonment, a 5-year term

of supervised release, and imposed a $50 mandatory assessment.

Ancira appealed his conviction and sentence to this Court, and

we affirmed, see United States v. Ancira, No. 91-8503 (5th Cir.

March 19, 1992) (unpublished), holding that the district court did

not err (1) in denying Ancira’s motion to suppress, and (2) in

considering Ancira’s prior state convictions in deciding to enhance

his sentence as a “career offender” under the sentencing

guidelines. Id.1

Ancira subsequently, on April 20, 1995, filed in the district

court the instant motion under 28 U.S.C. § 2255 to vacate, set

aside, or correct his sentence. In that motion, Ancira claimed

that he was denied effective assistance of counsel,2 that the

1
In his direct appeal to this Court, Ancira challenged his
conviction and sentence in only these two respects.
2
Specifically, Ancira asserted that his counsel’s performance
was deficient in that counsel: (1) failed to properly investigate

3
district court violated Rule 11 during his rearraignment, and that

the government breached the plea agreement. Ancira also raised

several issues relating to application of the sentencing guidelines

and the statutory requirement that notice be given to a defendant

of the government’s intent to seek enhancement of the defendant’s

sentence prior to the defendant’s entry of a guilty plea. The

district court denied Ancira’s motion. Ancira now appeals.

Discussion

It is well-settled that a collateral challenge to a conviction

or sentence “may not do service for an appeal.” United States v.

Frady, 102 S.Ct. 1584, 1593, reh’g denied, 102 S.Ct. 2287 (1982);

see also United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995).

“[T]o obtain collateral relief a prisoner must clear a
significantly higher hurdle than would exist on direct
appeal. . . . [T]o obtain collateral relief based on
trial errors to which no contemporaneous objection was
made, a convicted defendant must show both (1) ‘cause’
excusing his double procedural default, and (2) ‘actual
prejudice’ resulting from the errors of which he
complains.” Frady, 102 S.Ct. at 1593-94 (footnote
omitted).

It is also clear that an appellate court will not consider a

section 2255 claim raised for the first time on appeal. United

Ancira’s prior convictions and challenge the application of the
sentencing guidelines’ “career offender” provisions; (2) failed to
investigate and raise the issue of Ancira’s mental competence; (3)
failed to request a downward departure based on Ancira’s mental
state; (4) failed to request a downward departure for Ancira’s
acceptance of responsibility after the “career offender” provisions
were determined to be applicable; and (5) failed to adequately
inform Ancira of the possible (sentencing) repercussions of his
guilty plea.

4
States v. McKnight, 693 F.2d 476, 476 (5th Cir. 1982). Finally,

this Court has observed that a section 2255 petitioner may bring a

collateral challenge only upon “issues of constitutional or

jurisdictional magnitude.” United States v. Shaid, 937 F.2d 228,

232 (5th Cir. 1991)(citation omitted), cert. denied, 112 S.Ct. 978

(1992). If a petitioner presents an error that is not of such

magnitude, then he must show that the error “could not have been

raised on direct appeal and would, if condoned, result in a

complete miscarriage of justice.” Walker, 68 F.3d at 934 (citation

omitted); see also Hill v. United States, 82 S.Ct. 468, 471, reh’g

denied, 82 S.Ct. 640 (1962) (section 2255 relief is available only

if the alleged error is a “fundamental defect which inherently

results in a complete miscarriage of justice . . . [and] present[s]

‘exceptional circumstances where the need for the remedy afforded

by the writ of habeas corpus is apparent’”) (citation omitted).

In reviewing a district court’s denial of a section 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).

I. Ineffective Assistance of Counsel

Ancira contends that he was denied effective assistance of

counsel in several respects relating to his conviction and

sentence. To obtain section 2255 relief based on a claim of

ineffective assistance of counsel, a petitioner must show not only

5
that his attorney’s performance was deficient, but also that the

deficiency prejudiced the defense. United States v. Smith, 915

F.2d 959, 963 (5th Cir. 1990). In order to demonstrate such a

deficiency, the petitioner must prove that counsel’s performance

fell below an objective standard of reasonableness. Strickland v.

Washington, 104 S.Ct. 2052, 2064, reh’g denied, 104 S.Ct. 3562

(1984). To prove that the deficiency prejudiced the defense, the

petitioner must demonstrate a “reasonable probability” that, “but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 2068. This two-part analysis

applies equally to claims of ineffective assistance of counsel

arising out of the plea process. Hill v. Lockhart, 106 S.Ct. 366,

370 (1985). Accordingly, the petitioner must establish a

reasonable probability that, but for counsel’s alleged failures and

misrepresentations, the petitioner “would not have pleaded guilty

and would have insisted on going to trial.” Czere v. Butler, 833

F.2d 59, 63 (5th Cir. 1987) (citation omitted).

A. Failure to Properly Investigate Ancira’s Prior
Convictions and Challenge the Application of the
Sentencing Guidelines’ “Career Offender” Provisions

First, Ancira contends that counsel failed to investigate the

prior convictions which were used to enhance his sentence. Ancira

suggests that, had counsel investigated these convictions, it would

have been plain that the convictions should have been consolidated

and treated as a single conviction pursuant to U.S.S.G. §

6
4A1.2(a)(2); such a consolidation would have prohibited application

of the enhancement provisions of U.S.S.G. § 4B1.1. Ancira ignores

the fact that his lawyer raised this issue at sentencing, however,

which clearly collapses this allegation.

Second, Ancira argues that counsel failed to challenge the

application of the sentencing guidelines’ “career offender”

provisions. This issue, however, was addressed in Ancira’s direct

appeal. We found that Ancira had four prior felony convictions

upon which the district court properly based its decision to apply

the “career offender” provisions of U.S.S.G. § 4B1.1. We further

held that Ancira had failed to provide any evidence that his prior

convictions had been consolidated, observing that sentences which

run concurrently and are imposed on the same day are not required

to be consolidated for guideline purposes. United States v.

Ancira, No. 91-8503 at 8-9 (5th Cir. March 19, 1992) (unpublished)

(citation omitted). It is well-settled that an issue which has

been raised and ruled upon adversely to a defendant on direct

appeal may not be relitigated in the context of a section 2255

motion. United States v. McCollom, 664 F.2d 56, 59 (5th Cir.

1981), cert. denied, 102 S.Ct. 1989 (1982).3

3
Furthermore, even if this Court were to address Ancira’s
contention that his prior convictions should be consolidated, there
is no support for a finding that all of his prior convictions
should be treated as a single offense. Ancira was convicted of two
(controlled substance) felonies that occurred in February 1988, and
two (controlled substance) felonies occurring in July 1988. Ancira
pleaded guilty to and was sentenced on the February charges in

7
 B. Failure to Investigate and Raise the Issue of Mental
Incompetence

Ancira contends that he was mentally incompetent to plead

guilty, a fact which counsel should have discovered and raised

before the trial court. Specifically, Ancira argues that counsel

should have petitioned the district court for a downward departure

based on Ancira’s “diminished capacity”——due to his documented Post

Traumatic Stress Disorder (PTSD)4——pursuant to U.S.S.G. § 5K2.13.

In considering whether counsel was ineffective in the

sentencing phase following a plea, “[A] court must determine

whether there is a reasonable probability that but for trial

counsel’s errors the defendant’s non-capital sentence would have

been significantly less harsh.” Spriggs v. Collins, 993 F.2d 85,

88 (5th Cir. 1993) (footnote omitted)(emphasis in original).

March 1988, and was convicted and sentenced on the July charges in
October 1988. Under even the broadest construction of the
consolidation provisions of U.S.S.G. § 4A1.2(a)(2), the “March” and
“October” convictions must be viewed as separate for enhancement
purposes. United States v. Ancira, No. 91-8503 at 8-10 (5th Cir.
March 19, 1992) (unpublished). Therefore, under the “career
offender” provisions of U.S.S.G. § 4B1.1, Ancira has “at least two
prior felony convictions of either a crime of violence or a
controlled substance offense”, and was properly sentenced as a
“career offender”.
4
Ancira’s presentence report (PSR) of July 19, 1991, asserts
that Ancira has been diagnosed as suffering from PTSD, a condition
which causes Ancira to experience “panic attacks,” severe anxiety,
hallucinations, and significant fluctuations in his blood pressure.
PSR ¶ 38. The PSR further indicates that Ancira failed to show up
at the inpatient psychological treatment facility where he was to
have received medical assistance with his psychological and drug
problems; his failure to report to this treatment facility
constituted a violation of his parole. Id.

8
U.S.S.G. § 5K2.13 provides that, “[A] lower sentence may be

warranted to reflect the extent to which reduced mental capacity

contributed to the commission of the offense . . .” This Court has

clarified that, while a defendant’s reduced mental capacity need

not be the sole cause of the offense, it must be a contributing

cause. See United States v. Soliman, 954 F.2d 1012, 1014 (5th Cir.

1992). In the present case, Ancira fails to demonstrate how his

condition contributed in any way to his commission of the offense

of conviction——possession of heroin with the intent to distribute.

Therefore, there exists no reasonable probability that, had counsel

urged the trial court to make a (section 5K2.13) downward departure

reflecting Ancira’s “diminished capacity,” the trial court would

have so departed from the applicable guideline range and imposed a

significantly less harsh sentence than was actually imposed.5

C. Failure to Request a Downward Departure for Ancira’s
Acceptance of Responsibility

Ancira contends that when the district court enhanced his

offense level pursuant to the “career offender” provisions of

5
Ancira has also suggested that he was deprived of a fair trial
because counsel failed to petition the district court to hold a
competency hearing. In light of the fact that the district court
asked Ancira at his rearraignment whether he had ever suffered from
any mental or physical impairments “that might affect [his] memory
or judgment or have any effect on [his] understanding of these
proceedings?”——and Ancira responded that he had not——the district
court properly viewed Ancira as competent. Therefore, even if
counsel’s failure to petition the court for a competency hearing
were otherwise cognizable, the district court’s inquiry into this
matter rendered any impact of such a failure harmless.

9
U.S.S.G. § 4B1.1, counsel should have sought the two-level

reduction to which Ancira was allegedly entitled under U.S.S.G. §

3E1.1 for acceptance of responsibility. It appears from the PSR,

however, that Ancira did in fact receive this two-level reduction

under section 3E1.1, as the PSR, which was adopted by the district

court for sentencing purposes, implicitly made this reduction. As

enhanced, the statutory maximum for Ancira’s offense of conviction

was forty years. 21 U.S.C. § 841(b)(1)(B). The offense level

corresponding to this maximum sentence under section 4B1.1 is

thirty-four. The PSR, however, assigned Ancira an offense level of

thirty-two. Considering that the PSR reduced Ancira’s pre-

enhancement base offense level by two levels “for Acceptance of

Responsibility”, it appears that the PSR simply adjusted Ancira’s

enhanced offense level accordingly. See PSR ¶ 15. Therefore,

Ancira has no claim that counsel’s performance was deficient, or

that there was prejudice, in this regard.

D. Failure to Adequately Inform Ancira of the Possible
Repercussions of His Guilty Plea

Ancira further contends that his guilty plea was made

involuntarily, as it was the product of counsel’s incorrect and

misleading advice. Aside from making this bald assertion, however,

Ancira makes no argument and advances no facts in support of this

contention:

10
 “Absent evidence in the record, a court cannot consider
a habeas petitioner’s bald assertions on a critical issue
in his pro se petition (in state and federal court),
unsupported and unsupportable by anything else contained
in the record, to be of probative value.” Ross v.
Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (footnote
omitted).6

In fact, counsel advised Ancira in a March 4, 1991, letter

discussing the plea agreement that, “Neither I nor anyone else for

that matter, can state with specific accuracy what the sentencing

authorities will recommend to the Court.”

Furthermore, Ancira testified in open court that he had not

been threatened, forced, or coerced into pleading guilty, nor had

anyone promised him anything other than what was contained in the

written plea agreement that he and his lawyer had signed.

Accordingly, the district court found that Ancira’s plea was freely

and voluntarily made, concluding that Ancira had received an

adequate opportunity to advise the court of any reservations or

misunderstandings he might have had regarding the plea agreement.

Ancira offers no argument or evidence to overcome the “formidable

barrier” to challenging these findings by the district court. See

6
Ancira also asserts for the first time on appeal that counsel
failed to raise the issue that Ancira was entitled to notice——prior
to entering his plea——that the government intended to seek
enhancement pursuant to the “career offender” provisions of
U.S.S.G. § 4B1.1. This assertion, unaccompanied by any support or
explanation, likewise has no probative value in the present
context.

11
Blackledge v. Allison, 97 S.Ct. 1621, 1629 (1977).7

II. Breach of Plea Agreement

Ancira contends that the government breached the plea

agreement in the present case because Ancira was assured that he

would not be charged as a “career offender.” This Court has noted

that:

“When a defendant pleads guilty on the basis of a promise
by his defense attorney or the prosecutor, whether or not
such promise is fulfillable, breach of that promise
taints the voluntariness of his plea.” Davis v. Butler,
825 F.2d 892, 894 (5th Cir. 1987) (quoting McKenzie v.
Wainwright, 632 F.2d 649, 651 (5th Cir. 1980)).

However, a mere “understanding” on the defendant’s part that he

would serve a lesser sentence——pursuant to the plea agreement——than

the one he ultimately received will not invalidate his guilty plea.

Self v. Blackburn, 751 F.2d 789, 792-93 (5th Cir. 1985). In order

for an unkept plea bargain to constitute a basis for habeas relief,

the petitioner must demonstrate: “(1) exactly what the terms of the

alleged promise were; (2) exactly when, where, and by whom such a

promise was made; and (3) the precise identity of an eyewitness to

the promise.” Id. (quoting Hayes v. Maggio, 699 F.2d 198, 203-204

7
Apart from his ineffective assistance of counsel claim in this
context, Ancira suggests that his guilty plea was not voluntary
because he was not aware that a greater sentence could be imposed.
The March 4, 1991, letter from counsel, supra, clearly should have
made Ancira aware that his sentence would ultimately depend on “the
sentencing authorities” and the court; therefore, there is no merit
to Ancira’s claim that his plea was involuntary because he received
a sentence——within the relevant guideline range——that was greater
than he had hoped for.

12
(5th Cir. 1983)).

In relevant part, the written plea agreement in the present

case——signed by Ancira personally and by his attorney and the

Assistant United States Attorney——established that:

“The United States of America . . . agrees not to pursue
further Title 21 or Title 18 offenses against this
defendant with regard to the facts known to the
government at the execution of this agreement.
. . . The United States of America has made no agreement
with the defendant or his counsel concerning any possible
sentence.”

This language does not state or imply a promise on the part of the

government not to charge Ancira as a “career offender” pursuant to

U.S.S.G. § 4B1.1 or not to recommend that he be so treated.

Furthermore, it was the probation office in Austin, Texas, and

not the U.S. Attorney’s office, that recommended application of the

“career offender” provisions in this case. See PSR ¶ 29. The

probation office was not a signatory to the plea agreement, so this

recommendation——which was ultimately adopted by the district court——

cannot be attributed to any party to the plea agreement.

III. Violation of Rule 11

Ancira argues that the district court violated Fed. R. Crim.

P. 11(c) in failing to admonish him that he could receive a

sentence greater than that contemplated by the parties to the plea

agreement. However, this alleged failure to comply with the

requirements of Rule 11 constitutes neither a constitutional nor a

jurisdictional deficiency. United States v. Prince, 868 F.2d 1379,

13
1385 (5th Cir.), cert. denied, 110 S.Ct. 321 (1989). Neither has

Ancira shown that this alleged failure to comply with Rule 11 could

not have been raised on direct appeal, nor that it “resulted in a

‘complete miscarriage of justice’ or in a proceeding ‘inconsistent

with the rudimentary demands of fair procedure.’” Id. (citation

omitted). Therefore, this allegation of error may not be

considered in a collateral attack under section 2255.8

IV. Government’s Failure to Give Notice of Intent to Seek
Enhancement

Ancira contends that the government failed to file notice that

it intended to seek an enhancement of his sentence, a violation of

21 U.S.C. § 851.9 However, section 851 does not apply to a

defendant whose sentence is enhanced under the sentencing

guidelines——in this case, pursuant to the career offender

provisions of U.S.S.G. § 4B1.1——as long as the enhanced sentence is

8
The transcript of the rearraignment hearing reflects that the
district court complied with the requirements of Rule 11(c). The
court informed Ancira of the maximum sentence (forty years) he
faced, and directed that the terms of the plea agreement be read
into the record. The court further explained that Ancira’s
sentence would ultimately be determined by the court based on the
statutory guideline range recommended by the probation office, a
guideline range calculated with Ancira’s criminal history in mind.
9
Ancira also argues that the government’s enhancement of his
sentence was prohibited by the plea agreement, which asserted that
the government would not pursue further Title 18 or Title 21
offenses. Any argument that the parties could have reasonably
understood this assertion to extend to enhancement of Ancira’s
sentence under U.S.S.G. § 4B1.1 collapses in light of the
immediately following provision in the Plea Agreement: “The United
States of America has made no agreement with the defendant or his
counsel concerning any possible sentence.”

14
within the statutory range, as is the case here. See United

States v. Marshall, 910 F.2d 1241, 1245 (5th Cir. 1990), cert.

denied, 111 S.Ct. 976 (1991).10 Therefore, “Since the Sentencing

Guidelines do not require that the defendant be given notice when

the Government intends to seek Career Offender status,” the

government did not need to give Ancira notice in the present case

prior to sentencing him under the guidelines. Id. (footnote

omitted).

V. Erroneous Application of the Sentencing Guidelines

Ancira argues that the district court failed to apply the

sentencing guidelines properly in two respects: (1) his diminished

mental capacity entitled him to a downward departure pursuant to

U.S.S.G. § 5K2.13; and (2) his acceptance of responsibility

entitled him to a downward departure under U.S.S.G. § 3E1.1. While

we considered the merits of certain claims related to these

contentions in the context of addressing Ancira’s allegations of

ineffective assistance of counsel, supra, we need not do so here as

it is well-settled that, “A district court’s technical application

of the Guidelines does not give rise to a constitutional issue”

cognizable under 28 U.S.C. § 2255. United States v. Vaughn, 955

F.2d 367, 368 (5th Cir. 1992). Furthermore, neither has Ancira

demonstrated that these alleged misapplications of the sentencing

10
The (enhanced) sentence ultimately imposed against Ancira——240
months——falls within the statutory range of 5 to 40 years. See 21
U.S.C. § 841(b)(1)(B).

15
guidelines could not have been raised on direct appeal, nor that

they “resulted in a ‘complete miscarriage of justice’ or in a

proceeding ‘inconsistent with the rudimentary demands of fair

procedure.’” United States v. Prince, 868 F.2d 1379, 1385 (5th

Cir.), cert. denied, 493 U.S. 932 (1989) (citation omitted).

VI. Improper Denial of Evidentiary Hearing

Finally, Ancira complains that the district court erred when

it denied him an evidentiary hearing. However, an evidentiary

hearing is not necessary when claims brought pursuant to a section

2255 petition may be clearly refuted without examining evidence

beyond the record. United States v. Smith, 915 F.2d 959, 964 (5th

Cir. 1990). The record is clearly adequate to dispose fairly of

Ancira’s present section 2255 allegations.

Conclusion

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

16