United States v. Mounts , 57 F. App'x 1 ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 01-1389
UNITED STATES,
Appellee,
v.
PAUL MOUNTS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Lipez, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Thomas Stylianos, Jr. on Anders brief and Motion to Withdraw
as Counsel.
Paul Mounts on brief pro se.
January 7, 2003
Per Curiam. Paul W. Mounts pled guilty to conspiring
to distribute and possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. The district court determined that the
applicable guideline imprisonment range under the sentencing
guidelines was 360 months to life. However, the court
concluded that because a drug quantity had not been charged in
the indictment or proven to the jury beyond a reasonable doubt,
under Apprendi v. New Jersey, 530 U.S. 466 (2000), the maximum
sentence Mounts could receive was 20 years. Therefore, the
court sentenced him to 240 months in prison and 5 years of
supervised release. He filed a notice of appeal. Appointed
counsel has filed a brief under Anders v. California, 386 U.S.
738 (1967), and Mounts has filed a pro se supplemental brief.
I. Challenge to Guilty Plea
Two of the issues raised by Mounts are, in substance,
challenges to his guilty plea. First, he argues that he wanted
to go to trial but that his attorney and the government
attorney would not allow it. Second, he claims that the
government breached its promise that if he pled guilty and
testified at co-defendant Heidi Chaffee's trial, he would
receive a lenient sentence. These arguments are unsupported by
the record.
-2-
As to the first of these arguments, Mounts never
asked the district court to allow him to withdraw his guilty
plea. Nor has he, even in the present filing, asserted his
innocence of the offense to which he pled guilty. The plea
hearing was conducted in conformity with the requirements of
Fed.R.Crim.P. 11. During the plea colloquy, Mounts denied that
anyone had "threatened [him] or . . . attempted to force [him]
or induce [him] in any way to tender his plea of guilty."
As to Mounts' second argument, at his plea colloquy,
he assured the judge that no one had made a promise to him as
to what sentence would be imposed. "Such statements in open
court during a plea hearing 'carry a strong presumption of
verity.'" United States v. Martinez-Molina, 64 F.3d 719, 733
(1st Cir. 1995). Mounts' plea was entered pursuant to a written
plea agreement which specifically stated that it did not
require the government to move for a downward departure under
U.S.S.G. § 5K1.1. Mounts agreed to cooperate with the
government and the government agreed to recommend that Mounts
be sentenced on the basis of a drug quantity of 500 grams to
1.5 kilograms of cocaine base. Mounts acknowledged in the plea
agreement that "there are no other promises or agreements,
either express or implied, other than those contained in this
Agreement." We reject Mounts' challenge to his guilty plea.
-3-
To the extent that Mounts is claiming ineffective
assistance of counsel, the factual record concerning Mounts'
allegations that his attorney misled him about the consequences
of pleading guilty or his right to proceed to trial is not
sufficiently developed to permit reliable review on direct
appeal. See Lopez-Pineda, 55 F.3d at 697. Our rejection of
Mounts' ineffective assistance claim is without prejudice to
his presenting that claim on collateral review under 28 U.S.C.
§ 2255.
II. Challenge to Sentence
A. Evidence from Chaffee Trial
Mounts argues in his pro se brief that the sentencing
court erred by increasing his sentence on account of evidence
from the Chaffee trial that he had abused Chaffee, who was his
fiancé as well as his co-defendant. "Fed.R.Crim.P. 32,
U.S.S.G. § 6A1.3 and the Due Process Clause of the United
States Constitution require that a defendant be apprised of the
information to be relied on in sentencing and an opportunity to
rebut such information." United States v. Berzon, 941 F.2d 8,
1 7 (1st Cir. 1991). This requirement was satisfied here. At
the presentence conference, the sentencing judge informed
Mounts that he would be relying upon information received at
-4-
the Chaffee trial, "thus enabling [Mounts] to respond to it
before the sentence was set." Id. at 21.
Under the terms of the plea agreement, the court was
precluded from using Mounts' own testimony at the Chaffee trial
in "determining the applicable guideline range," with certain
exceptions. See U.S.S.G. § 1B1.8. To the extent that Mounts
alleges that the court violated that prohibition, the record
does not support such an allegation. In any event, it is
clear that no prejudice resulted from the court's reliance upon
any evidence presented at the Chaffee trial. The transcript
from the sentencing hearing reveals that the court relied upon
evidence from the Chaffee trial in deciding not to grant the
three-level reduction for acceptance of responsibility. Had
Mounts received the three-level reduction, the applicable
guideline sentencing range would have been 262 to 327 months.
The sentence Mounts received (240 months) was well below that
range.
B. Drug Quantity
Mounts appears to argue in his brief that the drug
quantity employed by the district court in arriving at his
sentence was higher than the quantity calculated in the PSR.
The record belies that claim.
C. Government's Failure to Seek a § 5K1.1 Departure
-5-
The government stated at the sentencing hearing that
it had decided not to seek a § 5K1.1 departure because Mounts
had violated the law by attempting to smuggle cigarettes into
the prison where he was detained while awaiting sentencing.
The plea agreement specifically provided that the government
was not required to seek a § 5K1.1 departure. The government's
decision not to seek a departure was not based on any
constitutionally impermissible factors and was rationally
related to a legitimate government end. Under these
circumstances, the government's "unbridled discretion" in
deciding whether to file a § 5K1.1 motion was not constrained.
See United States v. Sandoval, 204 F.3d 283, 285 (1st Cir.
2000).
D. Supervised Release Term
The sentencing court gave the parties advance notice
(at the presentence conference) of its intent to impose a five-
year supervised release term and there was no objection. That
term did not exceed the governing statutory limits. See United
States v. Cortes-Claudio, No. 01-2113, slip op. at 8 (1st Cir.,
Dec. 2, 2002). The court included in its Memorandum of
Sentencing Judgment the following reasons justifying a five-
year supervised release term: protection of the public and
rehabilitation of the defendant. In the plea agreement, Mounts
-6-
admitted to a drug quantity of 50 grams or more of cocaine
base. The United States Sentencing Guidelines' supervised
release maximum corresponding with that drug quantity is five
years. See U.S.S.G. §5D1.2(a)(1). Under these circumstances,
there is no non-frivolous argument that it was plain error for
the court to impose a five-year supervised release term. See
United States v. Duarte, 246 F.3d 56, 62 (1st Cir. 2001).
Counsel's motion to withdraw is granted and
appellant's conviction and sentence are affirmed. See Loc.R.
27(c).
-7-