United States v. Morgan , 284 F. App'x 79 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5203
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS LYNN MORGAN,
Defendant - Appellant.
No. 06-8055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS LYNN MORGAN,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:03-cr-00084; 7:05-cv-00636)
Argued: March 20, 2008 Decided: July 3, 2008
Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
David R. HANSEN, Senior Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee. ON BRIEF: John L. Brownlee, United States Attorney,
Donald R. Wolthuis, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Curtis Lynn Morgan challenges his guilty plea and sentence by
means of a direct appeal and an action for collateral review under
§ 2255, which have been consolidated before this court. For the
reasons that follow, we affirm the district court’s denial of
Morgan’s claim that the government breached the plea agreement as
well as the dismissal of Morgan’s ineffective assistance claim
under § 2255. We remand, however, for re-sentencing under the
advisory Guidelines in accordance with the remedial scheme set
forth in United States v. Booker, 543 U.S. 220 (2005).
I.
Morgan was indicted on nine drug-distribution counts stemming
from his involvement in a drug-trafficking conspiracy that operated
in Roanoke, Virginia, and elsewhere between May 2001 and December
2002. During the ensuing plea negotiations, Assistant United
States Attorney (“AUSA”) Ruth Plagenhoef sent a letter to Morgan’s
attorney stating that various co-conspirators had decided to plead
guilty and that there was strong evidence against Morgan,
specifically in regard to Morgan’s using or carrying firearms in
connection to drug trafficking. The letter also stated: “I hope
this [letter] helps Mr. Morgan understand the strength of the
evidence against him and my view of his relative culpability. I
think a deal in which he gets 15 years instead of 65 is pretty
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fair. Call me if you have more questions or if I need to get ready
for trial.” J.A. 187.
On March 5, 2004, Morgan entered into a written plea agreement
under which Morgan agreed to plead guilty to four counts of the
indictment: conspiracy to distribute (count one); possessing with
intent to distribute (count eight); and two counts charging that
Morgan used or carried a firearm in relation to a drug-trafficking
offense (counts two and nine). According to the terms of the
agreement, Morgan “underst[ood] that if convicted as charged . . .
[he would] be facing at least 65 years imprisonment.” J.A. 16.
Therefore, he intended “to enter into this plea agreement that
provides as a practical matter that [he] receive a 40 year sentence
together with an opportunity to reduce [his] sentence through
cooperation with the United States.” J.A. 16. Morgan waived his
right to appeal “any sentencing guidelines factors or the Court’s
application of the sentencing guidelines factors to the facts of
[his] case.” J.A. 21. Morgan “further agree[d] to waive [the]
right to collaterally attack, pursuant to . . . section 2255, the
judgment and any part of the sentence imposed . . . by the Court.”
J.A. 22.
By signing the agreement, Morgan also acknowledged that “no
one has promised . . . [that] a substantial assistance motion will
be made on [his] behalf” and “agree[d] that th[e] plea agreement
[was] not contingent in any way on the [government] making a
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substantial assistance motion.” J.A. 23. Additionally, the
agreement reflected Morgan’s “understand[ing] that any motion for
a departure made in this case [would] only be made to reduce [his]
sentence under Count Nine” and that “the U.S. [would] not agree to
a departure below the fifteen year mandatory minimum total
sentences of Counts One and Two.” J.A. 24.
Finally, the agreement included the following language: “This
Plea Agreement supersedes all prior understandings, promises,
agreements, or conditions, if any, between the United States and
[Morgan]. . . . [Morgan has] consulted with [his] attorney and
fully understand[s] all [his] rights with respect to the offenses
charged in the pending indictment. . . . Being aware of all of the
possible consequences of [his] plea, [Morgan has] independently
decided to enter this plea of [his] own free will.” J.A. 27.
On March 5, 2004, the district court conducted a guilty-plea
hearing. After the court recounted the charges and the applicable
mandatory minimums, Morgan indicated he understood that count one
(conspiracy) carried a mandatory 10-year minimum sentence (and a
maximum of forty years); that count two (using and carrying)
carried a five- year mandatory consecutive sentence; and that count
nine (using and carrying) carried a 25-year mandatory consecutive
term. (Supp. J.A. 5-6). Morgan agreed that he was satisfied with
his lawyer and that, having discussed his potential sentence with
5
counsel, he understood the potential sentence was “subject to the
sentencing guidelines.” Supp. J.A. 14.
Before accepting Morgan’s plea, the district court noted that
both the United States Attorney and the court had explained “the
minimum mandatory and maximum sentences for these offenses, [and]
the fact that they are subject to the sentencing guidelines.”
Supp. J.A. 17. The court found “as a matter of fact [that Morgan]
understands these” and that he understands “the consequences of
entering pleas of guilty.” Supp. J.A. 17.
Finally, the court asked if Morgan had gone over the plea
agreement with his attorney and whether Morgan understood what he
was agreeing to; Morgan answered yes to both questions. The court
then explained to Morgan that “if you are sentenced within the
guideline range, you will waive and give up your right to appeal
these sentences, and you are also giving up your right to
collaterally attack the sentences by way of habeas corpus petition.
. . . [T]he government may or may not file a substantial
assistance motion in your case. If the government does file such
a motion, then the court is free to depart below the guidelines in
fixing your sentence.” Supp. J.A. 18-19.
Prior to sentencing, the government moved for a substantial
assistance departure as to count nine (using and carrying under
§ 924(c)), which carries a 25-year consecutive mandatory minimum
sentence. The government’s motion was made under 18 U.S.C.A.
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§ 3553(e), thus providing the district court with the authority to
impose a sentence below the statutory mandatory minimum.
On October 14, 2004, the district court held Morgan’s
sentencing hearing. The court granted the government’s substantial
assistance motion as to count nine. The government took the
position that any sentence for count nine was required to run
consecutively, but then suggested that the court simply impose a
one-day sentence on count nine. The district court accepted the
government’s suggestion, thereby avoiding the 25-year sentence that
would otherwise have been required for count nine.
Unfortunately for Morgan, he was a career offender under
§ 4B1.1, which resulted in a sentencing range for the drug
trafficking conspiracy charge (count one) and possession charge
(count eight) of 262-322 months. The district court sentenced
Morgan to 262 months, the lowest sentence possible before Booker,
but the court was required to add the five-year consecutive term
for using and carrying a firearm under § 924(c), yielding a
sentence of 322 months.
After the judge announced the sentence, Morgan expressed
surprise and said he thought he was getting 15 years:
[MORGAN]: . . . It was my understanding from my
guilty plea I was to receive a 15-year sentence. That
was my understanding, if I was to plead guilty to the
charges, that I would receive a 15-year sentence. I just
don’t know what happened to the agreement.
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THE COURT: I don’t know either. And I don’t think
that would have been out of the ballpark. I think that
maybe would have been fair.
[MORGAN]: Because I have that on paper from [AUSA]
Plagenhoef, in my cell, Your Honor. [referring to the
March 1, 2004 letter].
THE COURT: That you would get 15 years?
[MORGAN]: 15 years, yes, sir, if I was to plead
guilty, and avoid a 65-year sentence.
THE COURT: . . . I don’t think that was included in
the plea agreement. Does the US Attorney know about
this?
[AUSA] WOLTHUIS: . . . [T]he plea agreement
certainly reduced his exposure under the statutory
minimum mandatories, from 40 to 15. . . . I don’t know if
that’s what Morgan is referring to, but I suspect [it]
was, that the minimum mandatories would be reduced that
amount. But I’m aware of no conversations relating to
coming in with a fixed recommendation that would ignore
the sentencing guidelines.
J.A. 59-60.
On October 13, 2005, Morgan filed a § 2255 petition, alleging
that his attorney provided ineffective assistance of counsel by
failing to file a direct appeal of the sentence after Morgan asked
him to do so and by failing to explain adequately the consequences
of the guilty plea such that Morgan did not enter into it knowingly
and voluntarily.
The government moved to dismiss, arguing that Morgan expressly
waived his right to raise a collateral challenge. The district
court agreed, concluding that the waiver provision in the plea
agreement was valid and effective: “Review of the . . . Rule 11
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colloquy clearly demonstrates that petitioner knowingly and
voluntarily waived his right to file this § 2255 motion attacking
his sentence.” J.A. 131. The court found that Morgan’s claim
“that he was unaware of the consequences of his guilty plea, [was]
inconsistent with statements he made under oath,” J.A. 133-34,
noting that Morgan affirmed his understanding of the “maximum
penalties . . . as well as the fact that the court was free to
sentence him up to the statutory maximum.” J.A. 133. The district
court therefore dismissed Morgan’s claim that counsel’s ineffective
assistance resulted in a guilty plea that was not knowing and
voluntary.1
The district court concluded, however, that the failure-to-
appeal claim fell outside of the waiver provision and that an
evidentiary hearing was required. Based on the evidence presented
at the hearing, the district court found that “Morgan unequivocally
conveyed to [his attorney] his desire to file an appeal of the
sentence by asking [his lawyer], ‘Can I appeal?’” J.A. 193. The
court found
credible Morgan’s testimony that in reliance on the
express mention of a fifteen-year sentence in [AUSA]
Plagenhoef’s letter and in the plea agreement, Morgan
1
The court later granted a certificate of appealability on
this issue, concluding that, in light of the fact that Morgan
believed he would get a fifteen-year sentence, “it is at least
debatable that counsel’s discussions with Morgan regarding the plea
agreement and its consequences fell below a reasonable professional
standard” and that competent advice would have caused him to reject
the plea agreement. J.A. 216.
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pled guilty because he believed he would receive a
sentence of fifteen years. The court also finds . . .
that Morgan asked [his attorney] at sentencing for a copy
of the [Plagenhoef letter] in order to prove the fifteen-
year sentence agreement to the court. This fact is borne
out by Morgan’s statements during the sentencing hearing
and counsel’s testimony at the evidentiary hearing that
he remembered Morgan expressing disappointment that the
sentence was more than fifteen years.
J.A. 193. The court therefore granted Morgan’s § 2255 motion as to
the failure to appeal claim to provide Morgan with a “renewed
opportunity to appeal.” J.A. 194. The district court directed the
“clerk [to] prepare a new judgment . . . in every respect the same
as the previous judgment except as to date of entry,” J.A. 195, and
the court on November 14, 2006, entered an amended judgment, thus
resetting the appeal clock. Morgan timely appealed from the
amended judgment.
II.
A.
In his direct appeal, Morgan contends that the government
breached the plea agreement by failing to move for a downward
departure to a sentence of fifteen years total, and he seeks
specific performance of this purported promise.
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Issues involving the interpretation of plea agreements are
reviewed de novo. See United States v. Wood, 378 F.3d 342, 348
(4th Cir. 2004).2 In interpreting a plea agreement, we are
guided by contract law, and parties to the agreement
should receive the benefit of their bargain. Because a
defendant’s fundamental and constitutional rights are
implicated when he is induced to plead guilty by reason
of a plea agreement, our analysis of the plea agreement
or a breach thereof is conducted with greater scrutiny
than in a commercial contract.
United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal
quotation marks and footnotes omitted); see United States v.
Ringling, 988 F.2d 504, 506 (4th Cir. 1993) (“Plea bargains rest on
contractual principles, and each party should receive the benefit
of its bargain.”). The government breaches a plea agreement when
it fails to fulfill a promise that “can be said to be part of the
inducement or consideration” for the plea agreement. Santobello v.
New York, 404 U.S. 257, 262 (1971).
Morgan contends that AUSA Plagenhoef, on behalf of the
government, promised to move for a downward departure to a sentence
2
We are not convinced that Morgan raised the specific
performance issue before the district court. When the defendant
fails to raise such an issue before the district court, he must
establish that plain error occurred, meaning that “the breach was
so obvious and substantial that failure to notice and correct it
affected the fairness, integrity or public reputation of the
judicial proceedings.” United States v. McQueen, 108 F.3d 64, 66
(4th Cir. 1997) (internal quotation marks and alteration omitted).
Because we conclude that the government fulfilled its obligations
in connection to Morgan’s guilty plea, we need not decide whether
Morgan raised this issue below because he loses regardless of which
standard of review is applied.
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of fifteen years based on Morgan’s substantial assistance. This
promise, Morgan claims, is reflected in the March 1 Plagenhoef
letter commenting on the strength of the evidence against Morgan
and stating that “a deal in which [Morgan] gets 15 years instead of
65 is pretty fair.” J.A. 187. Morgan claims that the formal
written plea agreement, which was executed on March 4, is not to
the contrary and, in fact, confirms his understanding that he would
receive a recommendation of fifteen years in exchange for his
cooperation with the government. In particular, he relies on
section 15 of the plea agreement, which addresses the opportunity
for Morgan to earn a more favorable sentence by providing
substantial assistance to the government. Section 15 also contains
the following limitation, which was initialed by Morgan: “I
understand that any motion for a departure made in this case will
only be made to reduce my sentence under Count Nine of the
Indictment, that is, the United States will not agree to a
departure below the fifteen year mandatory minimum total sentences
of Counts One and Two.” J.A. 24. Morgan believes that implicit in
this language is the government’s confirmation that it will
recommend that the court depart to fifteen years but no less.
We disagree. The plea agreement contained a merger clause
that provided in relevant part as follows:
This writing sets forth the entire understanding between
the parties and constitutes the complete Plea Agreement
between the United States Attorney . . . and me, and no
other additional terms or agreements shall be entered
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except and unless those other terms or agreements are in
writing and signed by the parties. This Plea Agreement
supercedes all prior understandings, promises,
agreements, or conditions, if any, between the United
States and me.
J.A. 27 (emphasis added). Therefore, to the extent the Plagenhoef
letter reflects any promise made by the government, the subsequent
plea agreement supercedes it. See United States v. Davis, 393 F.3d
540, 546 (5th Cir. 2004); United States v. Fagge, 101 F.3d 232, 234
(2nd Cir. 1996); see also United States v. Hunt, 205 F.3d 931, 935
(6th Cir. 2000) (“An integration clause normally prevents a
criminal defendant, who has entered into a plea agreement, from
asserting that the government made oral promises to him not
contained in the plea agreement itself.”).
Looking to the four corners of the written plea agreement, we
find no language promising that in exchange for Morgan’s
substantial assistance, the government would move for a downward
departure that yields a sentence of 15 years. Instead, the plea
agreement required Morgan to acknowledge that “no one has promised
me that such a ‘substantial assistance’ motion will be made on my
behalf” and that the “plea agreement is not contingent in any way
on the United States making a substantial assistance motion.” J.A.
23. The plea agreement does provide that if, in the opinion of the
United States Attorney’s office, Morgan successfully offers
substantial assistance to the government, “then a motion will be
made at my sentencing . . . requesting that the Court depart from
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the Sentencing Guidelines, and sentence at a lesser level than
would otherwise be found to be the applicable guidelines sentence.”
J.A. 24. And, in fact, the government did seek a departure on
count nine, and Morgan received a one-day sentence on that count.
The government therefore fulfilled its obligations under the plea
agreement.
However, the plea agreement expressly states that the
government would move for a downward departure, if at all, on count
nine only, and that it would not seek a departure for counts one
and two. The sentence Morgan received was a function of his
designation as a career offender with regard to count one, a charge
for which the government had not agreed to even consider seeking a
downward departure. Thus, there is no language in the plea
agreement that can be interpreted as requiring the government to
seek a total sentence of fifteen years.
For the foregoing reasons, we conclude that Morgan has failed
to establish that the government breached the plea agreement, much
less that any “breach was so obvious and substantial that failure
to notice and correct it [would] affect[] the fairness, integrity
or public reputation of the judicial system.” McQueen, 108 F.3d at
66 (internal quotation marks omitted).
B.
Alternatively, Morgan asserts that re-sentencing is required
under Booker, reasoning that the district court, in resetting the
14
time for Morgan to file a direct appeal, ran afoul of Booker by
simply re-imposing the original sentence that the court imposed in
2004 under what was then a mandatory sentencing regime under the
Guidelines. See United States v. White, 406 F.3d 827, 835 (7th
Cir. 2005) (explaining that because Booker rendered the Sentencing
Guidelines advisory, “the mere mandatory application of the
Guidelines--the district court’s belief that it was required to
impose a Guidelines sentence--constitutes error”). Morgan argues
that because the district court indicated that it would have
imposed a lower sentence if not for the Guidelines, his substantial
rights were affected by the Booker error. See United States v.
White, 405 F.3d 208, 223-24 (4th Cir. 2005). The government agrees
that the matter should be remanded for re-sentencing under the
advisory Guidelines scheme in accordance with Booker.
For the reasons suggested by the parties, we agree that Morgan
should by re-sentenced in accordance with Booker. Therefore, we
vacate Morgan’s sentence and remand for the limited purpose of re-
sentencing under the advisory Guidelines in accordance with the
remedial scheme set forth in Booker.
III.
Having been issued a certificate of appealability by the
district court, Morgan also challenges the district court’s denial
of his § 2255 claim that his guilty plea was invalid because
15
counsel provided ineffective assistance in failing to advise Morgan
adequately regarding the consequences and potential prison time
resulting from his guilty plea. See Strickland v. Washington, 466
U.S. 668, 687 (1984) (ineffective assistance claim requires showing
that “counsel’s performance was deficient” and “the deficient
performance prejudiced the defense”). The district court did not
reach the merits, however, dismissing the claim based on the
court’s conclusion that the plea agreement contained a valid waiver
of collateral-attack rights which barred Morgan from bringing his
§ 2255 action. We review a district court’s denial of relief under
§ 2255 de novo. See United States v. Nicholson, 475 F.3d 241, 248
(4th Cir. 2007).
As part of a plea agreement, “a criminal defendant may waive
his right to attack his conviction and sentence collaterally, so
long as the waiver is knowing and voluntary.” United States v.
Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). Morgan’s plea
agreement contained a broad and express waiver of the right to
collaterally attack the judgment or sentence imposed by the court.
During the Rule 11 colloquy, Morgan affirmed under oath his
understanding of both the potential consequences of his pleading
guilty and his agreement not to raise a collateral challenge to his
convictions or sentences. Morgan testified that he had reviewed
the plea agreement with his lawyer and understood its provisions.
He was presented with the potential penalties associated with the
16
various charges and affirmed that he understood these penalties.
Additionally, Morgan affirmed his understanding that, in pleading
guilty according to the terms of the plea agreement, he was
“waiv[ing] and giv[ing] up [his] right to appeal these sentences,”
and that he was “also giving [his] right to collaterally attack the
sentences by way of habeas corpus petition.” Supp. J.A. 18-19.
As the district court pointed out, Morgan’s assertions on
appeal contradict his testimony at the Rule 11 colloquy: Morgan’s
“current claim that he was unaware of the consequences of his
guilty plea, is inconsistent with statements he made under oath.”
J.A. 134. “A defendant’s solemn declarations in open court
affirming a plea agreement carry a strong presumption of verity
because courts must be able to rely on the defendant’s statements
made under oath during a properly conducted Rule 11 plea colloquy.”
Lemaster, 403 F.3d at 221 (citation, internal quotation marks, and
alterations omitted). In fact, “in the absence of extraordinary
circumstances, allegations in a § 2255 motion that directly
contradict the petitioners sworn statements made during a properly
conducted Rule 11 colloquy are always ‘palpably incredible,’ and
‘patently frivolous or false.” Id. (citations omitted).
We agree, therefore, that Morgan knowingly and voluntarily
waived his right to raise a collateral attack and we affirm the
district court’s dismissal of Morgan’s § 2255 claim.
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IV.
As set forth above, we affirm the district court’s denial of
Morgan’s claim that the government breached the plea agreement as
well as the dismissal of Morgan’s claim for relief under § 2255.
We remand, however, for re-sentencing under the advisory Guidelines
in accordance with the remedial scheme set forth in Booker.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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