United States v. Porter

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 3 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 04-4009
JEFFERY PORTER, also known as
Jeff Borter, also known as Jeff
Fitzgerald Porter, also known as
Damien,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:01-CR-584-TS)

Vicki Mandell-King, Assistant Federal Public Defender (Raymond P. Moore,
Federal Public Defender, with her on the briefs) Office of the Federal Public
Defender, District of Colorado and Wyoming, Denver, Colorado, for Defendant-
Appellant.

Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States
Attorney, with him on the briefs, and Wayne T. Dance, Assistant United States
Attorney, with him on the supplemental brief) Office of the United States
Attorney, District of Utah, Salt Lake City, Utah for Plaintiff-Appellee.

Before KELLY , ANDERSON , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.
 Defendant-Appellant Jeffery Porter pled guilty in the United States District

Court for the District of Utah to two criminal charges: one count of possession

with intent to distribute five grams or more of actual methamphetamine, 21

U.S.C. § 841(a)(1), and one count of felon in possession of ammunition, 18

U.S.C. § 922(g)(1). Porter’s plea agreement limited his right to appeal his

sentence. Prior to sentencing, but after execution and approval of the plea

agreement, Porter filed a motion to substitute counsel because of an alleged

breakdown in communications between himself and his court appointed attorney.

A magistrate judge denied Porter’s motion. Subsequently, the district court

sentenced Porter to 110-months imprisonment.

On appeal, Porter alleges the district court erred in denying his motion to

substitute counsel. He also argues he is entitled to resentencing under United

States v. Booker, 125 S. Ct. 738 (2005). The government contends Porter is

precluded from raising either of these issues on appeal because he waived his

appellate rights. Exercising jurisdiction under 28 U.S.C. § 1291, see United

States v. Hahn, 359 F.3d 1315, 1320–24 (10th Cir. 2004) (en banc), we AFFIRM

the district court’s denial of the motion to substitute counsel and grant the

government’s motion to enforce the plea agreement as to Porter’s sentence.

Background

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 In 2001, government authorities executed a search warrant on Porter’s

Murray, Utah apartment. They uncovered approximately 76 grams (30.2 grams

pure) of methamphetamine and some handgun ammunition in a bathroom. The

government then filed drug and ammunition charges against Porter, a previously

convicted felon.

In December 2002, Porter pled guilty to the charged crimes. The plea

agreement, signed by Porter, his attorney and an Assistant United States Attorney,

admitted as true the relevant facts underlying the charged crimes. The agreement

also limited Porter’s ability to appeal his sentence:

I knowingly and voluntarily waive my right to appeal any sentence
imposed upon me, and the manner in which the sentence was
determined, on any grounds in 18 U.S.C. § 3742, except that I do not
waive my right to appeal (1) a sentence above the maximum statutory
penalty provided in the statute of conviction, and (2) an upward
departure from the final sentencing guideline range determined by the
Court.

I also knowingly and voluntarily waive my right to challenge my
sentence, and the manner in which the sentence was determined, in
any collateral review motion, writ or other procedure, including but
not limited to a motion brought under 28 U.S.C. § 2255.

(emphasis added).

The district court held a hearing to accept the plea agreement in December

2002. After discussing its terms with Porter, the district court approved the plea,

finding it had a factual basis and was entered into voluntarily by Porter with full

knowledge of his legal rights and the consequences of the plea. The court also

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specifically examined Porter about the appeal waiver, which Porter said he

understood.

A few months later at the scheduled sentencing hearing, however, Porter’s

attorney, Michael Jaenish, told the court that Porter wished to withdraw his guilty

plea and to have new counsel appointed. The district court postponed sentencing,

and advised Porter to return for sentencing or for consideration of a motion to

withdraw the guilty plea after a magistrate judge ruled on the substitute counsel

matter. 1

A magistrate judge subsequently conducted a hearing and denied Porter’s

motion for substitute counsel, finding no failure of representation by Jaenish. A

month later Jaenish filed an affidavit with the district court stating Porter sought

to withdraw his guilty plea based on ineffective assistance of counsel. Jaenish,

however, concluded there was no legal basis for withdrawal of the plea, and that

under the circumstances, he should no longer represent Porter. In the meantime,

Porter sent a letter to the court asking for a court-ordered psychiatric evaluation

of his mental competency (even though the court had previously found Porter to

be competent at the hearing on the entry of plea). The court agreed and ordered

1
The district court had previously assigned three different attorneys to
represent Porter. Jaenish, the last of these, was appointed in May 2002. A
magistrate judge denied Jaenish’s initial request to withdraw as Porter’s counsel
in July 2002.

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an evaluation as part of the presentence investigation. The subsequent evaluation

concluded Porter did not suffer from a mental condition that precluded him from

understanding the nature of the charges against him or participating in his

defense.

In December 2003, the district court conducted a competency hearing to

review the psychiatric evaluation. As a part of those proceedings, the court

questioned whether the magistrate judge had ruled on Porter’s motions to

substitute counsel and to withdraw his guilty plea. Jaenish misinformed the court

that the magistrate judge had denied both motions. In fact, as discussed above,

only the motion for substitute counsel had actually been filed with and ruled on

by the magistrate judge. Jaenish never filed a motion to withdraw the plea after

submitting his affidavit to the court.

At any rate, at the competency hearing the court once again offered Porter

the opportunity to file a motion to substitute counsel. In response, Porter

expressed his frustration with what he perceived to be Jaenish’s failure to keep

him informed, but stated, “it [doesn’t] matter to me. It really doesn’t matter to me

anymore.” The district court then informed Porter: “Well, again, if you wish to

take it to the magistrate, you can do so.” Porter filed no further motions.

In January 2004, the district court held a final hearing to sentence Porter.

Porter, still represented by Jaenish, engaged in a colloquy with the court

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concerning the facts supporting a sentence reduction for acceptance of

responsibility. Thereafter, when asked by the court whether he had any additional

comments, Porter responded:

I do understand this has been going on for a long time. And it wasn’t
my intent to have it go this long. And I tried to get Mr. Jaenish to
understand that – you know, I was just trying to get him to
understand that it’s frustrating for me to sit and not being able to talk
to him or him not answering my letters or anything like that. . . . So
that is the only thing that was a big problem with us coming back and
forth to court and with me and my attorney. So that is the only thing
that would cause any kind of problems and, you know, I’m sorry
about that. That was my only problem behind this matter. So that’s
all I would like to say.

Porter made no suggestion that he wished to withdraw his guilty plea or

again seek new counsel. The court sentenced him to 110-months imprisonment.

Discussion

This case requires us to answer two questions. First, whether the district

court abused its discretion in denying Porter’s motion to substitute counsel.

Second, whether Porter is precluded from challenging his sentence by virtue of

the plea agreement. We find no abuse of discretion and conclude the plea

agreement precludes Porter’s appeal of the sentence.

I. Motion to substitute counsel

We review a district court’s denial of substitute counsel for abuse of

discretion. See United States v. Vargas, 316 F.3d 1163, 1165 (10th Cir. 2003).

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“To warrant a substitution of counsel, the defendant must show good cause, such

as a conflict of interest, a complete breakdown of communication or an

irreconcilable conflict which leads to an apparently unjust verdict.” United States

v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987) (citation and internal quotation

marks omitted). “Good cause for substitution of counsel consists of more than a

mere strategic disagreement between a defendant and his attorney . . . rather there

must be a total breakdown in communications.” United States v. Lott, 310 F.3d

1231, 1249 (10th Cir. 2002) (citations omitted). “[T]o prove a total breakdown in

communication, a defendant must put forth evidence of a severe and pervasive

conflict with his attorney or evidence that he had such minimal contact with the

attorney that meaningful communication was not possible.” Id.

Our cases instruct us in making this assessment to look at whether (1) the

defendant’s request was timely; (2) the trial court adequately inquired into

defendant’s reasons for making the request; (3) the defendant-attorney conflict

was so great that it led to a total lack of communications precluding an adequate

defense; and (4) the defendant substantially and unreasonably contributed to the

communication breakdown. See Romero v. Furlong, 215 F.3d 1107, 1113 (10th

Cir. 2000).

A. Waiver of non-jurisdictional defenses

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 As a threshold matter, we dispose of the government’s argument that entry

of a voluntary and unconditional guilty plea waives the right to assert all non-

jurisdictional defenses on appeal, see, e.g., United States v. Salazar, 323 F.3d

852, 856 (10th Cir. 2003), including the denial of a motion for substitute counsel.

While that is ordinarily true, it does not apply in these circumstances.

Here, Porter’s request for new counsel arose after entry of the guilty plea

and was based on Porter’s dissatisfaction with his attorney’s performance in

preparation for sentencing. Since the circumstances forming the factual basis for

the substitution motion followed execution of the plea agreement, it can hardly be

precluded by it. See United States v. Reyes-Platero, 224 F.3d 1112, 1115–16 (9th

Cir. 2000) (finding claim regarding post-plea conduct not barred by plea

agreement). In short, Porter’s motion to substitute counsel was not raised until

after his guilty plea because the alleged breakdown in communications did not, in

fact, occur until after the plea had been entered. Therefore, his appeal of the

denial of that motion is not barred by virtue of the plea.

B. Abuse of discretion

Turning now to the merits of the motion to substitute counsel, Porter

argues the district court abused its discretion in denying his motion for two

reasons. First, he contends Jaenish’s lack of attention during the sentencing

process evidenced a total breakdown of communication. In a hearing on the

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motion, the magistrate judge found otherwise, and we agree. It is clear from the

case transcripts that Porter felt frustrated at the perceived lack of time and

attention that Jaenish dedicated to the case. Jaenish, however, testified at the

hearing that he spent “quite a bit of time with Mr. Porter,” including at least “an

hour and a half” reviewing the presentence report before the aborted sentencing

hearing. Jaenish also testified that he felt Porter’s frustration stemmed from an

inability to fully comprehend the sentencing factors on which the court’s

determination of sentence would be made.

Based on our independent review of the record, we are convinced that

Porter is not entitled to relief. Simply put, there is no reason to believe “he had

such minimal contact with the attorney that meaningful communication was not

possible,” Lott, 310 F.3d at 1249, or that Jaenish was not able to provide an

“adequate defense” to Porter throughout the post-plea proceedings. Romero, 215

F.3d at 1113. In fact, the district court specifically found at a later proceeding

that Jaenish had “pursued representation of [Porter] properly and aggressively

from the beginning of his appointment.”

Porter’s second argument is waived. He claims on appeal for the first time

that the district court abused its discretion by failing to adequately inquire into a

conflict of interest or irreconcilable conflict between Porter and Jaenish. Porter’s

theory is that after Jaenish filed the affidavit in May 2003 stating that he should

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no longer represent Porter, Jaenish had effectively compromised his ability to be a

zealous advocate. Our review of the record shows, however, this issue was not

presented to the district court.

Not that Porter did not have the opportunity. At the December 2003

competency hearing, the district court told Porter he could again ask the

magistrate judge to remove Jaenish as counsel. Porter never did so. Further, at

sentencing Porter had the opportunity to seek Jaenish’s removal based on the

affidavit. He declined to pursue a motion and, in fact, did not suggest

dissatisfaction with the sentence he received. Consequently, neither the district

court nor the magistrate judge ever considered whether events after the April

2003 hearing warranted substitution of counsel. We do not consider issues not

presented to the district court, and they are deemed waived. See Smith v.

Secretary of N.M. Dep’t of Corr., 50 F.3d 801, 814 n.22 (10th Cir. 1995); Lyons

v. Jefferson Bank & Trust, 994 F.2d 716, 720–22 (10th Cir. 1993).

In sum, Porter has not shown the lower court abused its discretion in failing

to appoint substitute counsel to his case.

II. Validity of the plea agreement

The next issue is whether Porter’s plea agreement precludes him from

appealing his sentence. We find that it does.

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 We apply well-established contract principles and our three-part test

recently developed in United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en

banc), to interpret appeal waivers. Under Hahn, we consider “(1) whether the

disputed appeal falls within the scope of the waiver of appellate rights; (2)

whether the defendant knowingly and voluntarily waived his appellate rights; and

(3) whether enforcing the waiver would result in a miscarriage of justice.” Id. at

1325 (citation omitted). We strictly construe the scope of appellate waivers and

“any ambiguities in these agreements are read against the Government and in

favor of a defendant’s appellate rights.” Id. (quotation marks and citations

omitted).

A. Scope of the appeal waiver

As a preliminary matter, it is helpful to clarify Porter’s argument on appeal

regarding the scope of the appeal waiver. He initially argued his sentence should

be reversed in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), because the

sentence was based on a quantity of drugs neither admitted by him nor determined

by a jury. Under this theory, Porter interpreted the exception to his appellate

waiver allowing him to appeal a sentence “above the maximum statutory penalty

provided in the statute of conviction,” as referring to the maximum penalty the

court could have imposed under the applicable Federal Sentencing Guideline

(Guidelines) sentencing range based on facts he admitted. Porter claimed his

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sentence exceeded this maximum because the court determined the sentence based

on facts he did not admit. In subsequent briefing, however, Porter concedes that

he did in fact stipulate to the quantity of drugs for which the court sentenced him.

See Aplt. Supp. Reply Br. at 3 (“As the [plea agreement] reflects, Mr. Porter did

in fact admit possession with intent to distribute the 30.2 grams of

methamphetamine (pure).”). 2

With these considerations in mind, we reject Porter’s argument that his

sentence is outside the scope of the appellate waiver for two basic reasons. First,

setting aside Porter’s concession regarding drug quantity, his interpretation of the

waiver clause contradicts the plain language of the plea agreement. The

agreement contains a waiver exception where the sentence imposed exceeds the

maximum provided in the “statute of conviction.” Adopting Porter’s approach

would require us to read the term “statute of conviction” out of the agreement and

substitute it with “applicable Guideline range” or some such language.

2
In briefing submitted prior to the issuance of United States v. Booker, 125
S. Ct. 738 (2005), Porter also argued that Blakely rendered the entirety of the
Guidelines unconstitutional. In post-Booker briefing, Porter further argued that
Booker error is structural error not subject to plain error review. We are not
required to reach the merits of these claims because we find the plea agreement
enforceable. However, we note Booker did not invalidate the Guidelines in toto
but rather required they be applied in an advisory manner. See 125 S. Ct. at
756–57. Also, our recent decision, United States v. Gonzalez-Huerta, No. 04-
2045, – F.3d –, 2005 WL 807008, *4 (10th Cir. 2005) (en banc), held that the
mistaken application of the Guidelines as mandatory does not constitute structural
error.

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 We decline to do so. Nothing in the record before us shows that the parties

intended the exception to stand for anything other than the plain meaning of its

operative language. See United States v. Rubbo, 396 F.3d 1330, 1333–35 (11th

Cir. 2005) (holding that exception to appellate waiver for sentence exceeding “the

maximum permitted by statute” referred to statute of conviction, not statutory

maximum as defined in Blakely and Booker, where no indication parties intended

otherwise); United States v. West, 392 F.3d 450, 460–61 (D.C. Cir. 2004)

(holding that exception to appellate waiver for sentence exceeding “statutory

maximum” did not allow for Apprendi v. New Jersey, 530 U.S. 466 (2000) or

Blakely challenge where parties did not intend the term to have such meaning).

Here, the relevant statute of conviction was 21 U.S.C. § 841, which in this case

carried a maximum penalty of 40 years. Porter’s 110-month sentence does not

exceed the maximum penalty.

Second, even if we were to adopt Porter’s interpretation of the waiver

clause, his sentence would not exceed the statutory maximum. The Sixth

Amendment rule announced in Apprendi, 530 U.S. at 490, and extended to the

Guidelines in Booker is inapplicable where a sentence is determined based on

admitted facts. See Booker, 125 S. Ct. at 756 (“Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

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admitted by the defendant or proved to a jury beyond a reasonable doubt.”).

Again, as we have noted, Porter admitted the facts on which the district court

determined his sentence. Hence, Porter’s sentence is within the scope of the

agreement and does not violate the 6th Amendment.

B. Knowing and voluntary waiver

Porter does not contest the district court’s determination that he knowingly

and voluntarily waived his appellate rights. Therefore we need not address the

issue. See United States v. Anderson, 374 F.3d 955, 958–59 (10th Cir. 2004)

(concluding plea agreement entered into knowingly and voluntarily because

defendant did not argue otherwise on appeal).

C. Miscarriage of justice

To prove that enforcement of an appellate waiver would result in a

miscarriage of justice, a defendant must establish at least one of four

circumstances: (1) reliance by the court upon an impermissible factor such as

race in imposition of the sentence; (2) ineffective assistance of counsel in

connection with the negotiation of the waiver; (3) the sentence exceeds the

statutory maximum; or (4) the waiver is otherwise unlawful and seriously affects

the fairness, integrity, or public reputation of judicial proceedings. See Hahn,

359 F.3d at 1327; Anderson, 374 F.3d at 959 (defendant bears burden of

establishing miscarriage of justice).

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 Porter makes three claims under the Hahn miscarriage of justice inquiry.

First, his attorney was ineffective in negotiating the plea agreement. Second, the

sentence imposed exceeds the statutory maximum. Third, he is entitled to

resentencing because the district court treated the Guidelines as mandatory in

imposing sentence.

1. Ineffective assistance of counsel

Porter claims his counsel was ineffective in negotiating the waiver. We

decline to reach the merits of this claim. First, Porter did not assert this

argument, nor a more general ineffective assistance of counsel claim, in either of

his opening briefs, and dedicates only three sentences to the claim in his initial

reply brief. Nor did he pursue the argument in post-Booker briefing. Therefore

we deem it waived. See Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d

1199, 1205 (10th Cir. 1997) (“It is not sufficient to merely mention an issue in a

reply brief. Issues not raised in the opening brief are deemed abandoned or

waived.”).

Second, a defendant must generally raise claims of ineffective assistance of

counsel in a collateral proceeding, not on direct review. See United States v.

Edgar, 348 F.3d 867, 869 (10th Cir. 2003). This rule applies even where a

defendant seeks to invalidate an appellate waiver based on ineffective assistance

of counsel. See Hahn, 359 F.3d at 1327 n.13 (noting case did not disturb

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longstanding rule that ineffective assistance claims must generally be brought in

collateral proceedings). Here, Porter offers no argument supporting a reason to

depart from our general practice and we decline to do so, especially in light of his

failure to meaningfully argue the claim.

2. Sentence exceeding statutory maximum

Porter next alleges enforcement of the agreement would produce a

miscarriage of justice because his sentence exceeds the statutory maximum. This

claim, similar to his argument regarding the scope of the appellate waiver, is that

the term “statutory maximum” under the Hahn miscarriage of justice inquiry, see

359 F.3d at 1327, should be read to refer to the statutory maximum as defined in

Blakely and extended to the federal Guidelines in Booker. Because “statutory

maximum” under the Hahn miscarriage inquiry refers to the statute of conviction,

this claim has no merit. Porter’s sentence does not exceed the 40-year maximum

in the statute of conviction.

3. Mandatory application of Guidelines

Porter’s last contention is that his waiver is “otherwise unlawful” and

should not be enforced because the district court treated the Guidelines as

mandatory. This legal error violates Booker’s remedial holding, which severed

the mandatory aspects of the Guidelines and made them advisory. See 125 S. Ct.

at 756–57. The relevant question, however, is not whether Porter’s sentence is

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unlawful in light of Booker’s remedial holding, but whether subsequent changes

in the law render his appeal waiver itself unenforceable.

Supreme Court precedent is quite explicit that as part of a plea agreement,

criminal defendants may waive both rights in existence and those that result from

unanticipated later judicial determinations. See Brady v. United States, 397 U.S.

742, 757 (1970). Brady pled guilty to a life sentence in order to avoid a possible

death sentence. See id. at 746. Thereafter, the Supreme Court invalidated the

death penalty provision in the statute on which Brady’s conviction was based.

See United States v. Jackson, 390 U.S. 570 (1968). Brady argued his guilty plea

was involuntary because he based it on the belief he was eligible to receive the

death penalty under the statute of conviction. See Brady, 397 U.S. at 746. The

Supreme Court rejected this argument: “[A] voluntary plea of guilty intelligently

made in the light of the then applicable law does not become vulnerable because

later judicial decisions indicate that the plea rested on a faulty premise.” Id. at

757.

The Supreme Court reiterated the approach followed in Brady in United

States v. Ruiz, stating:

[T]his Court has found that the Constitution, in respect to a
defendant’s awareness of relevant circumstances, does not require
complete knowledge of the relevant circumstances, but permits a
court to accept a guilty plea, with its accompanying waiver of various
constitutional rights, despite various forms of misapprehension

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 [including where a] defendant failed to anticipate a change in the law
regarding relevant punishments.

536 U.S. 622, 630 (2002) (citations and quotation marks omitted).

We have previously rejected a challenge to the validity of a plea agreement

based on a subsequent judicial determination regarding the scope of the

Guidelines. See United States v. Morrison, 938 F.2d 168, 171 n.4 (10th Cir.

1991). Moreover, some of our fellow circuits have already rejected claims that

the change in sentencing law resulting from Booker invalidated otherwise lawful

plea agreements. See United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005)

(dismissing as “frivolous” a claim that Booker rendered otherwise valid guilty

plea involuntary and stating “the possibility of a favorable change in the law

occurring after a plea is one of the normal risks that accompany a guilty plea”);

United States v. Bradley, 400 F.3d 459, 463–66 (6th Cir. 2005) (applying Brady

to reject a claim seeking to invalidate plea agreement in light of Booker).

Similarly, we find the change Booker rendered in the sentencing landscape does

not compel us to hold Porter’s plea agreement unlawful.

This outcome is obvious. To hold otherwise would suggest that most

appeal waivers in cases pending on direct appeal at the time the Supreme Court

decided Booker are unlawful. The essence of plea agreements, however, is that

they represent a bargained-for understanding between the government and

criminal defendants in which each side foregoes certain rights and assumes

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certain risks in exchange for a degree of certainty as to the outcome of criminal

matters. One such risk is a favorable change in the law. To allow defendants or

the government to routinely invalidate plea agreements based on subsequent

changes in the law would decrease the prospects of reaching an agreement in the

first place, an undesirable outcome given the importance of plea bargaining to the

criminal justice system. 3 See Hahn, 359 F.3d at 1318.

As a closing point, in our view enforcement of Porter’s plea agreement

does not seriously affect the fairness, integrity, or public reputation of these

judicial proceedings. The plea agreement made clear that Porter faced a 40-year

maximum sentence for the charged crimes, that he gave up multiple constitutional

and appellate rights in exchange for concessions from the government and, though

not explicit in the agreement, that he would be sentenced in accordance with the

Guidelines then in effect. The sentence imposed by the district court is in

conformance with the terms of the agreement and the understanding expressed by

Porter at the plea hearing. Porter faced up to 137 months under the applicable

Guidelines and received a sentence of 110 months. Accordingly, we find Porter’s

argument without merit.

3
This is not to say the parties to plea agreements cannot tailor their needs
to allow appeals based on changes in the law. Rather to allow defendants to
pursue such appeals as a matter of course where they clearly did not bargain for
the right to do so would only serve to undermine the bargaining process.

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 Conclusion

We hold the district court did not abuse its discretion in denying Porter’s

motion to substitute counsel. We further hold the plea agreement is valid and

precludes Porter from contesting the validity of his sentence on appeal. The

decision of the district court is AFFIRMED, the government’s motion to enforce

the plea agreement is granted so far as it pertains to Porter’s challenge to his

sentence, and the appeal dismissed.

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