United States v. James Thomas Withrow ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11746 ELEVENTH CIRCUIT
JANUARY 7, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 08-80034-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES THOMAS WITHROW,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 7, 2010)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
James Thomas Withrow appeals his 144-month sentence for conspiracy to
possess with intent to distribute at least 50 grams of crack cocaine, in violation of
21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A). Withrow raises three arguments on
appeal, namely that (1) his sentence appeal waiver is invalid and unenforceable
because he did not enter it knowingly; (2) the district court clearly erred in
enhancing his offense level by two levels, per U.S.S.G. § 3B1.1, after finding that
he assumed a managerial role in the offense; and (3) he received ineffective
assistance of counsel.
I. & II.
Withrow argues that his sentence appeal waiver should not be enforced
because (1) at the time he entered it, he could not have known that his appointed
counsel would provide ineffective assistance; and (2) the agreement was voidable
at the request of the government.
We review the validity of a sentence appeal waiver provision of a plea
agreement de novo. United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir.
2001). A sentence appeal waiver must be made knowingly and voluntarily and is
valid if the government shows either that: (1) the district court specifically
questioned the defendant about the waiver; or (2) the record makes clear that the
defendant otherwise understood the full significance of the waiver. United States
v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). A sentence appeal waiver
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includes the waiver of the right to appeal difficult or debatable legal issues or even
blatant error. United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999).
Despite Withrow’s arguments to the contrary, the sentence appeal waiver in
his plea agreement is valid and enforceable because the district court questioned
Withrow about the sentence appeal waiver and Withrow confirmed his
understanding of the waiver. Because the waiver is valid and enforceable,
Withrow cannot contest the district court’s application of a two-level,
aggravating-role enhancement, per U.S.S.G. § 3B1.1. Accordingly, we dismiss the
appeal to the extent Withrow challenges the validity of his sentence appeal waiver
and the district court’s application of the two-level sentence enhancement, per
§ 3B1.1. Because the government concedes that the sentence appeal waiver has no
application to ineffective-assistance-of-counsel claims, we now consider
Withrow’s ineffective-assistance argument.
III.
Withrow alleges that his trial counsel rendered ineffective assistance when
she (a) lost credibility after she was admonished by the district court to take greater
care in the representations she made in her pleadings; (b) failed to draft a proposed
mental health evaluation as instructed by the district court; (c) refused to continue
participating in Withrow’s debriefing with law enforcement agents; (d) failed to
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give Withrow a copy of his presentence investigation report (“PSI”) before
sentencing; (e) falsely represented to the district court that she did not serve as
counsel during the change of plea hearing; (f) failed to explain during sentencing
why his mental deficiencies warranted a lesser sentence; and (g) failed to argue
during sentencing that the conditions of his confinement warranted a lesser
sentence.
“We will not generally consider claims of ineffective assistance of counsel
raised on direct appeal where the district court did not entertain the claim nor
develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.
2002) (quotation omitted).
First, because the trial record does not contain sufficient evidence to
evaluate whether trial counsel’s failure to argue that Withrow’s conditions of
confinement warranted a lesser sentence was deficient or resulted in prejudice, we
decline to consider the allegation, and, as to this allegation, we affirm without
prejudice to filing a petition for collateral review. We consider Withrow’s
remaining allegations of ineffective assistance because the record is sufficient to
evaluate their merit. Withrow’s allegations that his counsel failed to file a
proposed order for a mental health evaluation, falsely represented that she did not
act as counsel during the plea hearing, failed to provide a copy of the PSI before
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sentencing, and failed to argue at sentencing that his mental deficiencies warranted
a lesser sentence are contradicted by the record, and thus, do not arise to ineffective
assistance. As to Withrow’s allegations that his counsel lacked credibility with the
district court and refused to continue her participation in a government debriefing,
even assuming that counsel’s conduct was constitutionally deficient, Withrow has
made no showing that, but for these alleged deficiencies, the outcome of his
proceedings would have been different. Accordingly, we conclude that Withrow’s
reviewable allegations do not arise to ineffective assistance, and we affirm in this
regard.
Conclusion
Based on our review of the record and the parties’ briefs, Withrow’s
sentence is dismissed in part, affirmed without prejudice to collateral review in part
and affirmed in part.
DISMISSED in part, AFFIRMED without prejudice in part, and
AFFIRMED in part.
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