IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11392
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN WHITE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
September 23, 2002
Before GARWOOD, DeMOSS, and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
Kevin White appeals the district court’s denial of his 28
U.S.C. § 2255 petition challenging his 1996 cocaine conspiracy
sentence. We affirm.
White argues that his attorney failed to challenge the
quantity of drugs used in sentencing him and allowed him to be
sentenced under a different statute than the one named in the
indictment, thus constituting ineffective assistance of counsel.
He further argues that this ineffective assistance justifies
resentencing despite the otherwise valid waiver of appeal contained
in his plea agreement. Because ineffective assistance of counsel
claims only survive a waiver of appeal if they directly relate to
the voluntariness of the waiver, and because White does not
challenge the validity of his plea, we affirm.
Background
From late 1994 through 1995, Kevin White and twelve associates
bought cocaine and cocaine base in Houston, concealed it in a spare
tire, and then drove it to Wichita Falls where they converted most
of the cocaine to cocaine base. The group would then sell the
cocaine and cocaine base in Wichita Falls. This scheme came to an
end when a grand jury returned a fourteen-count indictment against
them on November 15, 1995. Count one charged White et al. with
conspiracy to distribute cocaine base in excess of one kilogram, to
possess cocaine base in excess of one kilogram with intent to
distribute, and to possess cocaine with intent to distribute, all
in violation of 21 U.S.C. § 846. Count One also parenthetically
mentions 21 U.S.C. § 841(a)(1) to indicate the predicate crime of
the conspiracy charge. The indictment did not expressly indicate
the appropriate punishment range under 21 U.S.C. § 841(b), but
count one includes quantities of cocaine base “over one kilogram”
2
as part of the charged offense. Moreover, the overt acts alleged
in count one include nearly 700 grams of cocaine base and over
three kilograms of cocaine as well as other actions involving
unnamed amounts of cocaine base. In addition to the count one
conspiracy charge, White was also charged in counts four and five
with possession of 35 grams and 32.5 grams of cocaine base with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii). White was arrested the day after the indictment
was returned.
On January 31, 1996, White signed a plea agreement under which
he pleaded guilty to the conspiracy charge in return for the
dismissal of the two possession with intent to distribute charges.
The plea agreement described the referenced conspiracy charge as a
violation of 21 U.S.C. § 846 based on “conspiracy to possess with
intent to distribute cocaine base” without citing the predicate
statute or the quantity of drugs. The agreement stated the penalty
range was ten years to life imprisonment—the sentencing range
applicable to offenses charged under 21 U.S.C. § 841(b)(1)(A). The
plea agreement also contained a waiver of the right to appeal,
expressly including a waiver of White's right to challenge his
sentence under 28 U.S.C. § 2255. Only three potential arguments
were excepted from the waiver: White could challenge a sentence in
excess of the statutory maximum, an upward departure from the
applicable guideline range, and the disparate treatment of cocaine
3
and cocaine base in the statute. At the same time he signed the
agreement, White signed the factual resume, which described the
charged offense and alleged that White joined in transporting and
selling cocaine base but makes no reference to any particular
quantity of drugs.
The plea agreement was accepted by the district court at a
hearing held on February 5, 1996. At the hearing, White agreed
that he had read count one of the indictment, that he understood he
was pleading guilty to that count, and that the applicable
sentencing range was ten years to life. When the prosecution
summarized the indictment and the factual resume, however, the
prosecutor said that White had been charged with conspiracy “in
violation of Title 21, United States Code, Sections 841(a)(1) and
(b)(1)(B)(iii).” This was apparently the first and only time that
21 U.S.C. § 841(b)(1)(B) was mentioned in this case in connection
with the conspiracy charge. White agreed with the facts as read
aloud and pleaded guilty.
At the sentencing hearing on April 15, 1996, White's attorney
challenged the presentence report because it connected more than
1.5 kilograms of cocaine base to White, thus raising the base
offense level used in the sentencing guideline calculations. White
first argued that the government had entrapped him to sell a higher
quantity of drugs than he would have sold of his own volition, but
the court thought otherwise and overruled this objection. White's
4
attorney then argued that the drug quantity information came from
coconspirators and rendered the report unreliable. When questioned
by the court, White conceded that he may have sold three-quarters
to one kilogram of cocaine base but denied that the quantity was in
excess of one and a half kilograms. The district court overruled
the objection and found that the facts supported a reasonable
finding that the quantity of drugs would be far in excess of one
and a half kilograms. This relevant conduct (along with the
deduction for acceptance of responsibility) led to a total offense
level of 36, or a range of 188-235 months of incarceration. The
court imposed the minimum sentence of 188 months, which fell within
each of the statutory sentence ranges in 21 U.S.C. § 841(b)(1).
On direct appeal, White challenged both the disparity between
the statutory sentences for cocaine and cocaine base and the
court's decision to overrule his sentencing entrapment argument.
This court, in an unpublished opinion, affirmed the first point
based on circuit precedent and refused to address the second claim
because of his waiver of appeal. See United States v. White, No.
96-10489 (5th Cir. April 17, 1997) (unpublished). White's petition
for certiorari in the Supreme Court was denied on October 6, 1997.
On September 16, 1998, White filed pro se the instant section
2255 motion to vacate, set aside, or reduce his sentence based on
the government's failure to provide DEA lab reports establishing
the quantity of drugs. He claimed that this absence of proof
5
constituted “new evidence” compelling a new sentencing hearing and
also alleged that he received ineffective assistance of counsel
because his attorney failed to point out this shortcoming. White's
only response to the waiver of appeal was to claim that enforcement
of the waiver would be a “manifest miscarriage of justice.” In an
opinion issued October 10, 2000, the district court found that the
waiver language in the plea agreement was clear and unambiguous and
that White had knowingly and voluntarily waived those rights.
Because waivers of appeal are enforceable under those conditions,
the district court denied White's section 2255 motion.
White then filed a notice of appeal and petition for
certificate of appealability (“COA”). In his COA petition, White
asserted for the first time that his attorney was deficient for
allowing the government to convict him under 21 U.S.C.
§ 841(b)(1)(A) while both the plea agreement and factual resume
allegedly required that he be sentenced under section 841(b)(1)(B).
He added that his waiver could not be knowing and voluntary under
those circumstances. The district court denied the COA on December
6, 2000, citing the prior findings of fact and holding that White
had not made a substantial showing of the denial of a federal
constitutional right.
White appealed the petition for COA to this court. In his
brief in support of that appeal, White inexplicably connected the
statute cited in counts four and five of the indictment (“21 U.S.C.
6
§ 841(a)(1) and (b)(1)(B)(iii)”) with the conspiracy charged in
count one (“21 U.S.C. § 846" and, parenthetically, “§ 841(a)(1)”)
and argued that he was charged under section 841(b)(1)(B) but
sentenced under section 841(b)(1)(A). For this reason, White
argued, his sentence was illegal and his attorney was incompetent
for allowing the error. He also possibly argued that the same
problem rendered his waiver of appeal involuntary and unknowing,
although the argument was couched in terms of the ineffective
assistance of counsel. In an order dated May 2, 2001, this court
“liberally construed” White's brief as challenging whether his
waiver of appeal was valid and granted him a COA on that issue.
Analysis
I. The Nature of White's Claim
Having granted a certificate of appealability on the validity
of his waiver of appeal,1 we must first make sense of White's
ineffective assistance of counsel arguments. To begin, we note
that a defendant can waive his right to file a section 2255 motion,
although such a waiver might not apply to an ineffective assistance
of counsel claim. United States v. Wilkes, 20 F.3d 651, 653 (5th
Cir. 1994). We also note that a defendant may always avoid a
1
Because this court may only review the issue on which the
certificate of appealability was granted, we disregard the other
arguments in White's briefs. See Lackey v. Johnson, 116 F.3d 149,
152 (5th Cir. 1997). We also will not reach the merits of his
claim of ineffective assistance of counsel at sentencing.
7
waiver on the limited grounds that the waiver of appeal itself was
tainted by the ineffective assistance of counsel. United States v.
Henderson, 72 F.3d 463, 465 (5th Cir. 1995). White's ineffective
assistance of counsel argument therefore might proceed down either
of two avenues. On the one hand, he may argue that the ineffective
assistance of his counsel rendered his waiver involuntary. On the
other hand, he may argue that he received ineffective assistance of
counsel at his sentencing and that all ineffective assistance of
counsel arguments are immune from waiver.
Having sifted through the petitioner's pro se briefs, we are
satisfied that White does not argue that ineffective assistance of
counsel rendered his waiver involuntary. He spends the majority of
his briefs arguing the ineffective assistance of his counsel based
on his attorney's actions at the sentencing hearing. In fact,
White makes it clear at the conclusion of his reply brief that he
does not challenge the validity of his plea but merely the
propriety of his sentencing. Nevertheless, White does argue at one
point that because he was allegedly charged under section
841(b)(1)(B) but sentenced under section 841(b)(1)(A), his waiver
could not be knowingly or intelligently made. He also argues that
his attorney “induced” him to sign the plea agreement based on this
misrepresentation.
Two factors indicate that White never meant to challenge the
validity of his plea, however. First, White made these assertions
8
as part of his larger argument. White follows the above assertions
not with a claim that the above alleged error was reason enough to
overturn his sentence on its own, but rather with an argument that
ties those alleged factors to his counsel's ineffectual performance
at the sentencing hearing. The clearest reading of White's
argument is therefore that he is only challenging his sentencing
and not his plea. This reading is supported by White's unequivocal
statement at the end of the reply brief.
Second, White's argument cannot be connected to his plea
without degenerating into nonsense. Neither count one of the
indictment nor the factual resume charges White with a violation of
section 841(b)(1)(B); White has again relied upon the statute cited
in counts four and five instead of the text of count one. White
stated under oath that count one of the indictment was correct,
which connects him to the “more than one kilogram of cocaine”
alleged in that count. This admission not only casts doubt on his
later assertion that he should be held accountable to a lesser
quantity of drugs, but it also prevents the application of any
sentencing statute other than section 841(b)(1)(A). See 21 U.S.C.
§ 841(b)(1)(A)(iii) (providing penalties for fifty grams or more of
cocaine base). White then acknowledged, both in writing in the
plea agreement and orally at the plea hearing, that he was agreeing
to be sentenced within a range of ten years to life. That sentence
is imposed for a violation of section 841(b)(1)(A). While the
9
prosecutor later incorrectly orally stated at the plea hearing that
White was charged under section 841(b)(1)(B)(iii), White had
already made these sworn admissions. White doesn't even mention
the prosecutor's error or include it in his record excerpts,
indicating that this cannot be the source of his claim of error.
Instead, White openly refers to the text of counts four and five.
Finally, we note that the sentence actually imposed was well within
the statutory limits for even the smallest quantity of cocaine
base, and the district court was within its power when it looked at
relevant conduct to assign the quantity of drugs within those
statutory ranges. See United States v. Doggett, 230 F.3d 160, 165
(5th Cir. 2000). Thus, even if White were arguing that this
statutory confusion was somehow connected to the plea and rendered
his waiver involuntary, that argument would be facially meritless
and unsupported by the record.
We therefore understand White's appeal as asserting that he
received ineffective assistance of counsel at his sentencing
hearing. His explicit waiver of appeal bars this claim unless
ineffective assistance of counsel claims cannot be waived.
Accordingly, we turn to that question.
II. Waiver of Ineffective Assistance of Counsel Claims
This circuit has not yet decided whether all ineffective
assistance of counsel claims survive a valid waiver of appeal,
although we have outlined the boundaries of the question. In
10
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994), this
court held that an informed and voluntary waiver of the right to
file a 28 U.S.C. § 2255 motion will be enforced. At the same time,
we joined the Ninth Circuit in musing (in dictum) that ineffective
assistance of counsel claims may be an exception to that rule. Id.
(citing United States v. Abarca, 985 F.2d 1012 (9th Cir. 1993)).
The following year, in United States v. Henderson, 72 F.3d 463, 465
(5th Cir. 1995), we held that a waiver of appeal may not be
enforced against a section 2255 petitioner who claims that
ineffective assistance of counsel rendered that waiver unknowing or
involuntary.2 Thus, Wilkes and Henderson provide answers to the
somewhat-simpler questions that lie to either side of the present
case.
This circuit has not yet decided, however, whether the
Henderson rule extends to the full reach of the Wilkes dictum.
That is, we have not yet decided whether a waiver of appeal remains
valid if the section 2255 movant argues that he received
ineffective assistance of counsel at stages of the proceedings
other than the plea or waiver itself. While we affirmed without
opinion the district court's decision to enforce such a waiver in
2
Apart from ineffective assistance of counsel claims, we have held that a waiver of appeal in
a plea agreement will not be enforced to bar direct appeal where the appellant correctly contends that
the indictment clearly does not state an offense and/or where the factual basis for the plea reflected
in the Fed. R. Crim. P. 11(f) proceedings clearly does not show commission of the offense. See
United States v. Spruill, 292 F.3d 207, 215 (5th Cir. 2002). Nothing like that is involved in the
present case.
11
United States v. Flunker, No. CRIM. A. 98-75, 2000 WL 823469 (E.D.
La. 2000), that decision lacks precedential force. We do not
venture into unexplored territory, however. Our sister circuits
have addressed the instant question and all have concluded that
waivers of appeal remain valid unless the ineffective assistance
directly related to the knowing, voluntary nature of the waiver.
We turn first to those cases, and then to our own decision on the
matter.
a. Other Circuit Decisions
The first court to address the question was the Ninth Circuit.
In United States v. Pruitt, 32 F.3d 431 (9th Cir. 1994), the court
reiterated that a plea agreement could not waive a claim of
ineffective assistance of counsel based on “counsel's erroneously
unprofessional inducement of the defendant to plead guilty or
accept a particular plea bargain,” but distinguished the
defendant's case because he was only claiming ineffective
assistance of counsel at the sentencing proceedings. Id. at 433.
The court did not develop this distinction, however, because the
waiver of appeal did not expressly include section 2255 motions and
thus could not be enforced anyway. Id. Nevertheless, this dictum
suggested that the ineffective-assistance-of-counsel exception to
waivers of appeal would be limited to those cases directly
implicating the waiver.
The first case to actually enforce a waiver in circumstances
12
similar to the instant case was United States v. Djelevic, 161 F.3d
104 (2nd Cir. 1998). In that case, before the court on direct
appeal, the defendant argued that his claims of ineffective
assistance of counsel at sentencing could not have been waived.
The Second Circuit “emphatically reject[ed] this contention.” Id.
at 107. Because the defendant did not claim that his waiver was
unknowing or involuntary, the court characterized his appeal as
nothing more than an attempt to challenge the correctness of his
sentence under the Sentencing Guidelines despite his explicit
waiver of such challenges. Id. The court feared that allowing
this argument to prevail would permit all challenges to the
sentence to be reconstituted as “ineffective assistance” challenges
based on the attorney's failure to obtain the desired result. The
ensuing litigation would render the waiver meaningless. Id. The
Djelevic court accordingly enforced the waiver.
Later that year, the Seventh Circuit issued the first opinion
to reach the same result in the context of section 2255. In Jones
v. United States, 167 F.3d 1142 (7th Cir. 1998), the court allowed
a defendant to overcome a waiver and argue ineffective assistance
of counsel in a section 2255 motion because the defendant alleged
he received ineffective assistance in the negotiation of the
agreement itself. Id. at 1145. The court compared that situation
to cases where a waiver was procured through coercion or
intimidation, in which it is “intuitive” that the waiver should not
13
be enforced. Id. The Jones court was careful to limit its
holding, however. “Mindful of the limited reach of this holding,
we reiterate that waivers are enforceable as a general rule; the
right to mount a collateral attack pursuant to § 2255 survives only
with respect to those discrete claims which relate directly to the
negotiation of the waiver.” Id. The Seventh Circuit put teeth
into that aside in Mason v. United States, 211 F.3d 1065 (7th Cir.
2000), in which the court held that the defendant's ineffective
assistance claim merely challenged his attorney's performance at
sentencing. The Mason court applied the Jones dictum and enforced
the waiver.3
Perhaps the most thorough analysis of the present problem
appears in United States v. Cockerham, 237 F.3d 1179 (10th Cir.
2001). In Cockerham, the defendant alleged in his section 2255
motion that he received ineffective assistance of counsel because
his attorney had permitted the government to use insufficient
evidence to convict and sentence him. Id. at 1181. The government
responded by relying on the waiver of appeal contained in his plea
agreement. Id. Because the Tenth Circuit had never explicitly
dealt with waiver of the right to file a section 2255 motion, the
court began with that issue. After a thorough review of the case
3
We also note that the Eighth Circuit reached the same result
as Jones in DeRoo v. United States, 223 F.3d 919, 924 (8th Cir.
2000), with similar dicta limiting the scope of the holding, but
that court has not yet been called upon to enforce that limitation.
14
law, the court held that waivers of the right to file a collateral
appeal were permitted if knowing and voluntary, and if the sentence
was not imposed on an impermissible ground such as race. Id. at
1182. Moving on to the question of whether ineffective assistance
claims survive such a waiver, the court examined Jones and Mason in
depth along with several district court cases and observed that the
courts had generally distinguished between ineffective assistance
affecting the plea agreement and ineffective assistance relating to
some other part of the proceedings. Id. at 1184-86. Nevertheless,
the Cockerham court felt that these courts had not “adequately
explained why they make this distinction.” Id. at 1186.
The Cockerham court supplied that explanation by incorporating
the holding and reasoning of United States v. Broce, 109 S.Ct. 757
(1989). In Broce, which concerned the ability of defendants who
pleaded guilty to collaterally attack their sentences on double
jeopardy grounds, the Court explained that “when the judgment of
conviction upon a guilty plea has become final and the offender
seeks to reopen the proceeding, the inquiry is ordinarily confined
to whether the underlying plea was both counseled and voluntary.”
Broce, 109 S.Ct. at 762. This was because “a plea of guilty and
the ensuing conviction comprehend all of the factual and legal
elements necessary to sustain a binding, final judgment of guilt
and a lawful sentence.” Id. The Court noted that an ineffective
assistance of counsel claim might survive a plea of guilty if the
15
ineffective assistance was failure to provide competent advice on
how to plead, but held that the defendants were not entitled to
collateral relief because they did not “call[] into question the
voluntary and intelligent character of their pleas.” Id. at 765.
The Tenth Circuit applied the Broce holding and reasoning to
waivers of appeal. Because a voluntary plea of guilty was enough
to sustain the conviction, the Cockerham court reasoned, an
ineffective assistance of counsel claim could only survive waiver
if it challenged the validity of the plea or the waiver.
Cockerham, 237 F.3d at 1187. The court then proceeded to examine
whether the defendant had argued that the ineffective assistance of
counsel related to the validity of the plea and remanded for
further factfinding.
Finally, we note that the Sixth Circuit has followed suit. In
Davila v. United States, 258 F.3d 448 (6th Cir. 2001), the court
cited the above cases and held that a claim of ineffective
assistance of counsel cannot survive a knowing, voluntary and
intelligent waiver. Id. at 451. The court's ultimate holding
depended on the fact that the district court had painstakingly
explained the waiver to the defendant (who was an attorney), but we
also note that the defendant was claiming ineffective assistance at
sentencing.
b. The Present Case
We will follow this wealth of authority and hold that an
16
ineffective assistance of counsel argument survives a waiver of
appeal only when the claimed assistance directly affected the
validity of that waiver or the plea itself. We agree with Jones
and Mason that an impermissible boot-strapping arises where a
waiver is sought to be enforced to bar a claim that the waiver
itself–or the plea agreement of which it was a part--was unknowing
or involuntary. This court addressed that problem in Henderson.
Where the movant's claim does not involve that sort of boot-
strapping, however, we see no need to except ineffective assistance
of counsel claims from the general rule allowing defendants to
waive their statutory rights so that they can reach a plea
agreement if they wish. See United States v. Melancon, 972 F.2d
566, 567 (5th Cir. 1992). The Sixth Amendment right to effective
assistance of counsel may also be waived, and thus need not be
treated any differently. See Johnson v. Zerbst, 58 S.Ct. 1019,
1023 (1938).
We also agree with the Cockerham court that Broce suggests the
result we reach today. We ask whether the plea or waiver itself
was knowing and voluntary, and whether the issue challenged on
appeal may properly be the subject of waiver.4 If the answer to
4
We note that White explicitly preserved the right to appeal
a sentence in excess of the statutory maximum, and that his
sentence was well within the statutory limits. Because the issue
is not before us, we need not decide whether a waiver of appeal
would be enforced where the sentence facially (or perhaps
indisputably) exceeds the statutory limits. See also note 2,
supra.
17
both questions is “yes,” then the guilty plea sustains the
conviction and sentence and the waiver can be enforced.
Finally, we agree with Djelevic that the opposite result would
render waivers of appeal meaningless. If all ineffective
assistance of counsel claims were immune from waiver, any complaint
about the process could be brought in a collateral attack by merely
challenging the attorney's failure to achieve the desired result.
A knowing and intelligent waiver should not be so easily evaded.
White claims ineffective assistance of counsel, but he does
not claim that the waiver in his plea agreement was unknowing or
involuntary. That plea required White to forego his right to
relief in appeals just like this one, and he knew that when he
signed it. We will therefore hold him to his word and affirm the
district court's denial of his section 2255 motion.
AFFIRMED
18
Dennis, Circuit Judge, dissenting:
As I disagree that a person can make an intelligent, knowing
waiver of the right to contest constitutional violations before
the violations occur, I respectfully dissent. As the Fourth
Circuit observed, “[A] defendant who waives his right to appeal
does not subject himself to being sentenced entirely at the whim
of the district court.” United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992). Rather, “a defendant’s agreement to waive
appellate review of his sentence is implicitly conditioned on the
assumption that the proceedings following entry of the plea will
be conducted in accordance with constitutional limitations.”
United States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994).
Therefore, a defendant should not be able to waive his right to
appeal constitutional violations when he lacks the fundamental
ability to be aware of their existence because they have not yet
occurred. See United States v. Melancon, 972 F.2d 566, 572 (5th
Cir. 1992)(Parker, Judge Robert, concurring)(A “right can not
come into existence until after the judge pronounces sentence; it
is only then that the defendant knows what errors ... exist to be
appealed, or waived.”)
In addition, while a number of claims might ultimately lack
merit, the majority’s approach creates the opportunity for the
systematic denial of a defendant’s constitutional rights. If a
19
defendant cannot maintain the right to challenge constitutional
violations that occur during sentencing, then the other parties
to the sentencing lose a powerful incentive to safeguard these
rights.
For these reasons, I would reverse and remand for
consideration of the defendant’s claims of constitutional
violations during sentencing.
20