United States v. Jeremy Ray Sims , 143 F. App'x 210 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 10, 2005
No. 04-12513
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00095-CR-04-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY RAY SIMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 10, 2005)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Jeremy Ray Sims appeals his conviction and sentence, pursuant to a guilty
plea, for conspiracy against rights, in violation of 18 U.S.C. § 241. Sims argues
that his guilty plea and sentence should be vacated because his attorney was
operating under an impermissible conflict of interest, in violation of the Sixth
Amendment, by simultaneously representing Sims and two of his co-defendants.
Sims also argues that the district court: (1) committed plain error by enhancing his
sentence, based on facts that were not charged in the indictment, proved to a jury,
or stipulated to by him, in violation of Blakely v. Washington, 542 U.S. ___, 124
S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005); and (2) erred by granting an enhancement pursuant to U.S.S.G. § 3B1.1 for
aggravating role. The government moves to dismiss Sims’s appeal of his sentence
because he validly waived his right to appeal. Because the record shows that Sims
knowingly and voluntarily waived his right to appeal his sentence, we grant the
government’s motion as to Sims’s sentencing issues. We deny the motion as to his
counsel’s conflict of interest claim but, because the record shows that Sims
knowingly and intelligently waived his right to conflict-free counsel, affirm his
conviction.
I. BACKGROUND
Sims and five co-defendants were indicted for: (1) conspiracy to injure,
oppress, threaten and intimidate three individuals in the free exercise of their right
to hold and occupy a dwelling without injury, intimidation, or interference because
of race, in violation of 18 U.S.C. § 241 (Count 1); and (2) by force and threat of
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force, and by use of fire, willfully injuring, intimidating, and interfering with the
same individuals in their occupation of a dwelling, on account of their race, in
violation of 18 U.S.C. § 2 and 42 U.S.C. § 3631(b) (Count 2). Specifically, the
indictment charged that the plan of the conspiracy was “to erect and ignite a cross
in the visible vicinity of the victims’ dwelling in order to intimidate, prevent, and
discourage the victims from exercising their protected rights.” R1-1 at 1-2.
During Sims’s initial appearance and arraignment, Sims’s retained attorney,
Allen Townsend, identified himself to the court and stated that he represented Sims
and two of his co-defendants. R2 at 2, 4. The magistrate judge addressed the
issues regarding the representation of multiple clients by one attorney and conflicts
of interest. Id. at 4-5, 19-21. He told Sims and his co-defendants that they each
had “a right to be represented by a lawyer . . . [who did not] have . . . a conflict of
interest . . . [and] whose loyalty is to you and not compromised by any
representation of any other person.” Id. at 19. The magistrate judge then
explained some potential problems that could occur when a lawyer had a conflict,
including specifically advising that such a conflict could “prevent the lawyer from
arguing the relevant culpability of the defendants to the sentencing court.” Id. at
21. The magistrate judge then individually addressed Sims and each of his co-
defendants who were represented by Townsend, and inquired whether Townsend
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had explained to them the potential conflict of interests and they each responded
“yes.” Id. at 2, 24. Sims indicated that Townsend told him “if there was a conflict
of interest, he couldn’t represent all three of us.” Id. The magistrate judge asked
Sims whether he understood (1) that he had a right to his own separate attorney, (2)
how conflicts can arise, and (3) the potential for conflicts of interest, and Sims
stated that he understood. Sims then indicated, with yes and no answers, that he:
(1) did not want his own attorney to represent him; (2) wanted to be represented by
Townsend despite the potential for conflicts of interest; (3) was waiving his right to
a separate attorney; and (4) understood that he might “be giving up [his] claim on
appeal that [his] lawyer was ineffective . . . because he had a conflict of interest.”
Id. at 25-26. The magistrate judge then approved the multiple representation,
finding that there was no reason to believe that a conflict would arise. Id. at 26.
Sims subsequently signed a written “waiver of right to conflict-free counsel,” in
which he acknowledged that he had:
been told that . . . I have the right to [be] represented by a lawyer who
does not have any conflict of interest.
....
The possible problems that can occur when a lawyer has
a conflict of interest have been explained to me by the Court
and my lawyer.
These problems include, . . . :
....
(2) The government could view my role and that of the other
person represented by my lawyer differently.
4
....
(4) Representing two persons in the same case or controversy
may prevent the lawyer from arguing the relative culpability of
the defendants to the sentencing court.
....
I voluntarily and knowingly give up my right to have a
different lawyer appointed to represent me . . . .
I further understand that by giving up my right to have
different, separate counsel to represent me in this case, I also
may be giving up the right to claim on appeal . . . that my
lawyer did not provide effective assistance of counsel because
he/she . . . had a conflict of interest.
R1-13 at 1-4.
Sims entered into a negotiated plea agreement in which he agreed to plead
guilty to Count 1 of the indictment in exchange for the government’s agreement to
dismiss Count 2. The plea agreement included a sentence-waiver provision that
provided in pertinent part:
To the maximum extent permitted by federal law, the defendant
voluntarily and expressly waives the right to appeal his sentence and
the right to collaterally attack his sentence in any post-conviction
proceeding on any ground, except that the defendant may file a direct
appeal of (a) an upward departure from the otherwise applicable
guideline range and (b) a finding by the court that § 2K1.4(a)(1) of the
Sentencing Guidelines applies to the defendant’s offense conduct.
R1-28, Plea Agreement at 2. The plea agreement also contained a certification,
signed by Sims, which stated that he understood:
. . . the terms and conditions contained in the Plea Agreement, and I
voluntarily agree to them. I also have discussed with my attorney the
rights I may have to appeal or challenge my sentence, and I
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understand that the appeal waiver contained in the Plea Agreement
will prevent me, with the narrow exceptions stated, from appealing
my sentence or challenging my sentence in any post-conviction
proceeding.
Id. at 7.
At the plea hearing, Sims indicated that he (1) had discussed the plea
agreement with his lawyer, (2) had signed it, and (3) understood that, by signing it,
he was entering a guilty plea to Count 1 of the indictment. Sims also answered
affirmatively when asked by the district judge if he still wanted to proceed with
Townsend as his counsel and whether he understood that he had a right to separate
counsel, and Sims said “Yes.” R3 at 6-7. The district court ensured that no one
had coerced Sims to tender the guilty plea, and read the plea agreement and Sims’s
certification into the record. Sims also affirmatively responded to the district
judge’s inquiry as to whether it was Sims’s understanding that the plea agreement
read into the record was the complete agreement and whether he was satisfied with
it. The district court informed Sims that he had a right to appeal to a higher court
without cost but that, by entering the plea agreement, was waiving his right to
appeal except as to the issues listed in the agreement. When asked whether that
was what he wanted to do and whether his plea was free and voluntary, Sims
replied “Yes, sir.” Id. at 41-42. After observing that Sims was not under the
influence of any drugs or substances that may have effected his plea, the district
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court accepted his guilty plea as to Count 1.
According to the Presentence Investigation Report (‘PSI”), at some point
during the evening of 4 November 2003, Sims and his five co-defendants
congregated at Sims’s residence and began consuming alcoholic beverages. The
conversation turned to a racially-mixed couple who was visiting the area, and the
defendants agreed to construct a cross to be placed at the residence where the
couple was staying and set ablaze. The defendants obtained lumber, and Sims
constructed the cross, which they shrouded with cloth and doused in transmission
fluid. The group then (1) put the cross in Sims’s truck, (2) drove to the residence,
(3) unloaded the cross at the end of the driveway, and (4) set it on fire. Later,
three co-defendants returned to the scene of the crime, and, finding that the cross
was not lit, successfully lit the cross and returned to Sims’s residence. In an effort
to attract attention to the burning cross, another co-defendant reported the incident
to the police.
The probation officer set Sims’s base offense level at 16, pursuant to
U.S.S.G. § 2H1.1(a)(1), cross-referenced to § 2K1.4(a)(3),1 which specifies that
the offense level is 2, plus the offense level determined according to § 2B1.1,
1
The guideline for a violation of 18 U.S.C. § 241 is § 2H1.1(a)(1), which cross-references
the guideline for the underlying offense, arson, which is § 2K1.4(a)(3).
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which was 14.2 The probation officer then increased this level: (1) by 3, pursuant
to § 3A1.1(a), since the victims were selected because of their race; and (2) by 4,
pursuant to § 3B1.1(a), since Sims was in a leadership role. Based on a total
offense level of 23, and with a criminal history category of I, Sims’s presumptive
guideline range of imprisonment was 46-57 months.
Sims objected to the § 3B1.1(a) role enhancement. At the sentencing
hearing, at which Sims alone was sentenced, Townsend argued that the four-point
enhancement for a leadership role was unfair because: (1) Sims was not the leader,
organizer, or supervisor of the incident; (2) it was a joint enterprise with at least
four participants, two of whom arrived later; and (3) it was just circumstance that
the incident involved Sims’s residence and truck. The government responded that
a role enhancement was appropriate because Sims picked up two of his co-
defendants, facilitated the creation of the cross at his residence, drove the truck and
his co-defendants to the victims’s residence, and instructed a co-defendant to come
up with a story to tell the police. The court sustained Sims’s objection to the four-
level enhancement, but applied a two-level enhancement, finding that Sims
“exercised some management responsibility” regarding the incident. R5 at 23-24.
2
Pursuant to § 2B1.1(a)(2), Sims’s base offense level was 6, but because the offense involved
the conscious or reckless risk of death or bodily injury, pursuant to § 2B1.1(b)(11)(A), the resulting
offense level was 14.
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Sims was then sentenced to 46 months of imprisonment, and 3 years of supervised
release.
II. DISCUSSION
A. Waiver of Right to Appeal
After Sims had filed his initial brief on appeal, the government moved to
dismiss the appeal, arguing that Sims validly waived his right to appeal and had
raised no issues on appeal excepted from the waiver. Sims responded that, at the
time when he entered his guilty plea, he was operating under an actual conflict of
interest which made both the plea agreement and the appeal waiver invalid.
We review de novo the legal question of whether a defendant knowingly and
voluntarily waived his right to appeal his sentence. United States v. Bushert, 997
F.2d 1343, 1352 (11th Cir. 1993). Plea agreements and accompanying waivers are
permissible and, indeed, are “important components” in our criminal justice
system. Id. at 1347 (internal citation omitted). An effective appeal waiver must
be made knowingly and voluntarily. Id. at 1350. Therefore, “for a sentence-appeal
waiver to be enforceable, [t]he government must show that either (1) the district
court specifically questioned the defendant concerning the sentence appeal waiver
during the [plea] colloquy, or (2) it is manifestly clear from the record that the
defendant otherwise understood the full significance of the waiver.” Williams v.
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United States, 396 F.3d 1340, 1341 (11th Cir. 2005) (internal quotations and
citation omitted). Specifically, we have also held that “the right to appeal a
sentence based on Apprendi /Booker grounds can be waived in a plea agreement.
Broad waiver language covers those grounds of appeal.” United States v. Rubbo,
396 F.3d 1330, 1335 (11th Cir. 2005).
Sims’s plea agreement contained a broad sentence-appeal waiver, stating
that: “the defendant voluntarily and expressly waives the right to appeal his
sentence and the right to collaterally attack his sentence in any post conviction
proceeding on any ground.” See R1-28, plea agreement at 2. Although Sims
reserved the right to appeal his sentence for (1) “an upward departure from the
otherwise applicable guideline range” and (2) a finding by the sentencing court that
U.S.S.G. § 2K1.4(a)(1) applies to his offense conduct, he did raise issues regarding
either of these exceptions on appeal. See id.; see generally Sims’s brief. The
waiver uses broad, sweeping language, and there is no indication that the parties
intended to except an argument based on Booker. See Rubbo, 396 F.3d at 1335.
The record shows that, during the change-of-plea hearing, the court read the
plea agreement into the record and Sims indicated that he was satisfied with it.
The court informed Sims that he had a right to appeal without any cost to him, but
that, by entering the plea agreement, he was waiving his right to appeal, and Sims
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stated that that was what he wished to do. Sims specifically swore that his plea
was entirely free and voluntary, and he signed a statement that he understood he
was waiving his right to appeal his sentence. Because Sims’s sentence-appeal
waiver was knowingly and intelligently made, he waived his arguments that: (1)
his sentence was unconstitutionally enhanced based on facts not charged in the
indictment, admitted by Sims, or proven to a jury, in violation of Blakely and
Booker; and (2) the district court erred by enhancing his sentence based on his role
in the offense.
However, it is possible that Sims has not waived his right to raise on direct
appeal that his counsel was ineffective for operating under an impermissible
conflict of interest because the terms of the sentence-appeal waiver do not mention
or cover such a claim, which goes to Sims’s conviction. See R1-28. The Supreme
Court has stated that, in most cases, it is preferable to decide an ineffective
assistance of counsel claim through a 28 U.S.C. § 2255 motion to vacate instead of
a direct appeal. Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690,
1694 (2003). However, we will review an ineffective assistance of counsel claim
on direct appeal if the record is sufficiently developed. United States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002). Because the record regarding Sims’s
ineffective assistance claim is sufficiently developed, we grant the government’s
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motion to dismiss in part as to the sentencing issues that Sims raises, and deny in
part as to Sims’s ineffective assistance of counsel claim.
B. Waiver of the right to conflict-free counsel
On appeal, Sims argues that his guilty plea and sentence should be vacated
because his attorney was operating under an impermissible conflict of interest, in
violation of the Sixth Amendment, since his counsel simultaneously represented
Sims and two of his co-defendants. He contends that, while he was initially
advised of his right to conflict-free counsel, his waiver was inadequate because the
issue was not revisited by the district court when, during sentencing, the potential
conflict became an actual conflict. He avers that an actual conflict of interest
existed at sentencing because the PSI recommended that Sims’s sentence be
enhanced based on his alleged role as a leader, while his co-defendant, Stacy Jones,
another of Townsend’s clients, was not facing such a role enhancement. He
contends that a defense to such an enhancement would have demanded that his
attorney harm Jones by highlighting Jones’s aggravating role. Sims maintains that
his appeal is analogous to United States v. Swartz, 975 F.2d 1042 (4th Cir. 1992),
in which the defendant’s conviction was reversed where, although the defendant
had waived her right to conflict-free counsel during the initial proceedings, such
waiver was inadequate when an actual conflict developed at sentencing. Sims
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argues that his waiver of conflict-free counsel was not knowing or intelligent
because: (1) the court should have engaged Sims, who had limited education,
more to ensure that he truly understood what he was waiving; and (2) his answers
to the asked questions do not demonstrate an understanding of the nature of the
conflict.
We review de novo the mixed questions of fact and law regarding conflicts
of interest. United States v. Jones, 52 F.3d 924, 925 (11th Cir. 1995). “A criminal
defendant's right to effective assistance of counsel is violated where the defendant's
attorney has an actual conflict of interest that affects the defendant adversely.”
United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993) (per curiam).
“Although a defendant may waive his right to the assistance of an attorney
unhindered by a conflict of interests, such waivers are not to be lightly or casually
inferred and must be knowingly and intelligently made.” United States v. Alred,
144 F.3d 1405, 1411 (11th Cir. 1998) (internal quotations and citations omitted).
For a waiver to be knowing and intelligent, “[t]he record must show that the
defendant was aware of the conflict of interest; realized the conflict could affect the
defense; and knew of the right to obtain other counsel.” Id. (internal quotations
and citation omitted). “A determination that defendants have waived the right to
conflict-free counsel disposes of the need to evaluate the actual or potential
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ineffectiveness of counsel caused by the alleged conflicts of interest.” Rodriguez,
982 F.2d at 477.
The district court did not err by accepting Sims’s plea or sentencing him
despite his attorney’s simultaneous representation of Sims and two of his co-
defendants because Sims knowingly and intelligently waived his right to conflict-
free counsel. The magistrate judge: (1) informed Sims of his right to a lawyer
without conflicts; (2) explained that one of the problems with having a conflicted
attorney would be that the attorney may be prevented from arguing relevant
culpability to the sentencing court; (3) addressed Sims personally and elicited a
statement from him; and (4) ensured that Sims understood. Sims indicated that:
(1) he wished to be represented by Townsend in spite of any conflicts; (2) was
waiving his right to a separate attorney; and (3) understood that he may be giving
up his right to claim on appeal that his attorney was ineffective because of the
conflict. Additionally, Sims: (1) certified that he was “fully satisfied with the
representation provided” to him by his attorney; (2) signed a written waiver of his
right to conflict-free counsel, which acknowledged that his lawyer’s conflict could
prevent him from arguing relative culpability at sentencing; and (3) during the
change-of-plea hearing, reaffirmed his intent to proceed with Townsend as his
attorney despite his right to his own counsel. See R1-13, 28, plea agreement at 7;
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R3 at 6-7.
The record unequivocally shows that Sims (1) was aware of the conflict, and
(2) knew of his right to obtain counsel. See Alred, 144 F.3d at 1411. Additionally,
not only did Sims realize that the conflict of interest could affect his defense, he
specifically was told, and signed a waiver that acknowledged that his counsel
might be unable to argue relative culpability at sentencing, the exact claim that he
is making on appeal. See id; see also R1-13. The very terms of his waiver belie
his argument that he did not knowingly and intelligently waive a challenge to his
attorney’s alleged conflict in arguing role enhancements.
Because Sims waived his right to conflict-free counsel, we need not evaluate
the actual or potential ineffectiveness of counsel caused by the alleged conflict.
See Rodriguez, 982 F.2d at 477. Nevertheless, even assuming that Sims’s waiver
was ineffective, there is no evidence that an actual conflict arose at sentencing
because Townsend: (1) objected to the probation officer’s recommendation
regarding the role enhancement; (2) argued that Sims was not the leader of the
group; and (3) obtained a two-level reduction in the enhancement from the
sentencing court. See R5 at 19-21.
III. CONCLUSION
We grant the government’s motion to dismiss in part because the record
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shows that Sims knowingly and voluntarily waived his right to appeal his sentence,
including any arguments related to the district court’s enhancement of his sentence
based on his role in the offense or based on an unconstitutional enhancement under
Booker. We deny the government’s motion to dismiss in part because Sims’s
conflict of interest argument was not specifically covered by his appeal waiver but
affirm his conviction because the record shows that Sims knowingly and
intelligently waived his right to conflict-free counsel.
DISMISSED IN PART; AFFIRMED IN PART.
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