United States v. Weymouth , 256 F. App'x 645 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7464
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL ANTHONY WEYMOUTH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-03-82)
Argued: September 25, 2007 Decided: December 6, 2007
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the
opinion, in which Judge Wilkinson and Judge Shedd joined.
ARGUED: Leeann N. Rosnick, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina, for Appellant. Richard Daniel Cooke, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Erwin
Chemerinsky, James E. Coleman, Jr., Catherine Fisk, Jessica A.
Bodger, Laura Durity, Michael P. Goodman, Elizabeth Magee, DUKE
UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellant.
Chuck Rosenberg, United States Attorney, Laura P. Tayman,
Assistant United States Attorney, Edward K. Nickel, Third Year Law
Student, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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NIEMEYER, Circuit Judge:
Daniel Weymouth pleaded guilty to conspiracy to distribute
ecstasy and PCP in Chesapeake, Virginia, in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(C), and the district court
sentenced him to 124 months’ imprisonment. Ten months later,
Weymouth filed a motion in the district court under 28 U.S.C. §
2255 to have his conviction vacated, contending that in pleading
guilty, he was denied the effective assistance of counsel. He
claimed that in one of three letters advising him what sentence to
expect, his counsel told him that he faced a minimum sentence of
20 years’ imprisonment, whereas he actually faced a maximum
sentence of 20 years’ imprisonment, as provided by 21 U.S.C. §
841(b)(1)(C). The district court denied his § 2255 motion,
finding that Weymouth had satisfied neither prong of the analysis
under Strickland v. Washington, 466 U.S. 668 (1984), required to
demonstrate that he had been denied the effective assistance of
counsel. For the reasons that follow, we affirm.
I
After law enforcement officers purchased ecstasy at a house
in Chesapeake, Virginia, they executed a search warrant there on
February 21, 2003. During this search, the occupants of the house
advised the officers that “Dan, Mike and Mike” would be coming to
the house later with an additional supply of ecstasy. As
represented, three men arrived at the house at about midnight, and
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two of the men went to the side door, where law enforcement
officers detained and searched them. Michael Riopel was found to
have 100 tablets of ecstasy in his pocket, and the defendant
Weymouth was found to have $2,470 in cash and more than 40 pills
and capsules. The pills found on Weymouth were later determined
to contain ecstasy and PCP.
After being advised of his constitutional rights, Weymouth
told officers, “you got me.” When they asked him about the $2,470
in cash that he was carrying, Weymouth indicated that he was
planning to travel to New York City that night to purchase more
ecstasy. He informed the officers that he had previously made 10
to 20 trips to New York to obtain ecstasy, and on each trip he had
returned with between 500 and 1,000 pills. He said that on most
of the trips he returned with 500 pills, and that a smaller
quantity was not worth his while.
Weymouth was indicted in six counts: one for conspiracy to
distribute and possess with intent to distribute ecstasy and PCP,
in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C); two
counts for possession with intent to distribute ecstasy and PCP,
in violation of id. §§ 841(a)(1) and 841(b)(1)(C); and three
counts for possession of ecstasy and PCP, in violation of id. §
844.
During the pretrial period, Weymouth’s court-appointed
attorney corresponded with him by letter at least three times,
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giving him advice on how to proceed. In her first letter, dated
June 20, 2003, Weymouth’s attorney indicated that a “rough
estimate” of the Sentencing Guidelines calculation placed Weymouth
at level 28. With an estimated criminal history category of V and
a potential two or three-point reduction if Weymouth accepted a
plea bargain, she estimated that the likely sentence would be 110-
137 months’ imprisonment. She confirmed that the residents of the
house where Weymouth was arrested would testify against him and
that his post-Miranda statements to law enforcement officers were
“completely inculpatory.”
In her second letter, dated June 25, 2003, Weymouth’s counsel
informed him that if he went to trial he faced 140-175 months’
imprisonment and that “[o]f course, if you go to trial, you have
no defense.” She also informed him that he probably had a
criminal history of category VI, which would increase the
Sentencing Guideline range to approximately 151-188 months’
imprisonment, even after a plea bargain. She stated, however,
that she was still investigating whether he qualified as a career
offender. She continued:
You advised me today in lock up after the arraignment
that you would take a plea and cooperate if you were a
[Career Offender] but that you only wished to plead
“straight up” if you were not a [Career Offender].
* * *
As I currently understand it, you are willing to plead
in either case, you just don’t want to have to cooperate
if you don’t qualify as a Career Offender.
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In her third letter, dated July 15, 2003, Weymouth’s attorney
advised him that “[he] really [did] not have standing to contest
the search warrant” which led to his arrest. Furthermore, she
reminded him that “[y]ou still must face the reality that Mike
Riopel will be testifying against you at trial, as will Daniel
Clair/Reese and maybe Mike Phillips. Their testimony will still
be sufficient to convict . . . .” She also made the following
statement, which forms the basis of Weymouth’s claim for
ineffective assistance of counsel:
Lastly, if you go to trial the government will most
definitely file an 851 notice of intent to increase your
potential penalties (see highlighted part of enclosed
statute). That would mean your statutory low end would
be 20 years, and the maximum would be life. Of course,
if it turns out you are a career offender, then your
guidelines will put you very near the 20 years anyway.
Attached to the letter was a xeroxed copy of 21 U.S.C. § 851 and
the portion of § 841(b)(1)(A) which provides for a 20-year
mandatory minimum sentence. The language of Weymouth’s counsel’s
letter is confusing and in some parts incorrect. It is apparently
correct insofar as it states that if Weymouth is a career offender
the recommended sentence would be near 20 years. But it is
obviously incorrect to state that if the government filed a § 851
notice, Weymouth’s sentencing range would be 20 years to life.
While that would be true under § 841(b)(1)(A), it was not true for
an offense under § 841(b)(1)(C), which provides for a 20-year
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maximum sentence, or 30 years if a § 851 information of a prior
drug conviction were filed.
Weymouth ultimately pleaded guilty to Count I of the
indictment, charging him with conspiracy to distribute and possess
with intent to distribute ecstasy and PCP, in return for the
government’s dismissal of the remaining charges. In sentencing
Weymouth, the district court found that under the Sentencing
Guidelines Weymouth’s offense level was 25, including credit for
acceptance of responsibility. With a criminal history Category
VI, therefore, the Sentencing Guidelines provided for a sentencing
range of 110-137 months’ imprisonment. The district court
sentenced Weymouth to 124 months’ imprisonment.
Weymouth thereafter filed a motion under 28 U.S.C. § 2255 to
set aside his conviction and sentence, claiming that he received
ineffective assistance of counsel because his counsel stated to
him that he faced a mandatory minimum sentence of 20 years for an
indictment charging him with a violation under § 841(b)(1)(C). He
claimed, “[i]f it was not for counsel’s mistake I would have
continued to trial like I had wanted.” The district court denied
Weymouth’s motion, concluding first that Weymouth had not
demonstrated that his attorney’s performance, “when considered in
its totality,” was outside of “the wide range of reasonably
professional conduct that Strickland permits.” The court also
concluded that even if his counsel’s performance was sufficiently
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deficient to establish the first prong of Strickland, Weymouth
failed to establish the prejudice prong, given his acknowledgment
of his guilt, his indication to the court at the Rule 11 hearing
that he fully understood his plea agreement, and the lack of
evidence that he would have proceeded to trial absent counsel’s
isolated erroneous statement. In response to Weymouth’s petition
for relief from the judgment under Rule 60(b), the court explained
yet further:
Here, petitioner has failed to establish that a
reasonable defendant would not have pled guilty but
instead insisted on going to trial. Petitioner not only
stated under oath in front of this court that he was in
fact guilty but he stated in his reply to the
government’s response to his § 2255 motion that he
“doesn’t wish to insult the court’s intelligence by
claiming actual innocence.” Reply, p. 8. The
petitioner has presented no evidence that a reasonable
defendant, in the petitioner’s position, in light of the
evidence the government had against him, would have
insisted on going to trial. Furthermore, the defendant
acknowledges that if he went to trial and was found
guilty he would have likely received a sentence greater
than what he received as a result of the guilty plea.
Instead, petitioner merely relies on his personal
preference to risk a significantly higher sentence as
evidence that he would have insisted on a trial but for
the single mistake his counsel made. Petitioner has
failed to establish prejudice under Strickland and Hill.
We granted the certificate of appealability on the issue of
whether Weymouth’s attorney provided ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984), and
Hill v. Lockhart, 474 U.S. 52 (1985).
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II
To be entitled to relief, Weymouth must show that his
counsel’s conduct “fell below an objective standard of
reasonableness,” and that he was thereby prejudiced. Strickland,
466 U.S. at 688, 694. Because his claim follows a plea of guilty,
demonstrating prejudice requires showing “‘a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.’”
Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (quoting
Hill, 474 U.S. at 59).
Petitioner bases his claim on the single misstatement by his
counsel that he was subject to a minimum sentence of 20 years and
a maximum of life imprisonment. He claims that but for that
statement, he would not have pleaded guilty. That claim, however,
is belied by the record and by what any reasonable defendant in
his position would have concluded.
First, his counsel repeatedly provided him with calculations
under the Sentencing Guidelines, advising him correctly of the
estimated sentencing ranges for a violation of § 841(b)(1)(C). In
her first letter, his counsel advised that based on a criminal
history Category V, Weymouth’s likely sentence would be in the
range of 110-137 months’ imprisonment. In her second letter,
Weymouth’s counsel informed him that his criminal history was
probably a Category VI and therefore his estimated sentencing
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range would be 151-188 months’ imprisonment. She also confirmed
Weymouth’s statement that he was willing to plead guilty
regardless of whether he had to cooperate with the government, as
he had no defense. Her third letter to Weymouth contained a
misstatement of the sentence, but it also included a correct
explanation that, “if it turns out you are a career offender, then
your guidelines will put you very near the 20 years anyway.” If
Weymouth had paid attention to the one misstatement, he certainly
would have raised a question in view of the extensive amount of
correct information given to him about the applicable Guidelines
range over the course of three letters.
Second, any doubt about the proper estimated range would have
been put to rest by the written plea agreement which clearly
stated, on its first page, that Weymouth was charged with a
violation of 21 U.S.C. § 841(b)(1)(C) with a maximum penalty of 20
years’ imprisonment. The plea agreement’s information was
consistent with the indictment, which Weymouth acknowledged having
receiving, charging him with a violation of § 841(b)(1)(C), not §
841(b)(1)(A), and having a maximum sentence of 20 years’
imprisonment.
Third, and perhaps most compelling, is the fact that at the
Rule 11 colloquy, the district court clearly repeated the charges
against Weymouth and the maximum sentence of 20-years’
imprisonment. When asked at the Rule 11 colloquy if he understood
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this penalty, Weymouth stated that he did. The transcript reveals
no evidence to indicate that Weymouth was in any way confused. To
the contrary, he assured the court that he was not confused and
understood what he was being told. This colloquy alone denies
Weymouth the opportunity to claim that he reasonably relied on his
counsel’s mistake when the mistake was corrected at the Rule 11
hearing. As we explained in United States v. Lambey, 974 F.2d
1389, 1395 (4th Cir. 1992) (en banc):
[I]f the information given by the court at the Rule 11
hearing corrects or clarifies the earlier erroneous
information given by the defendant’s attorney and the
defendant admits to understanding the court’s advice,
the criminal justice system must be able to rely on the
subsequent dialogue between the court and the defendant.
The burden falls on Weymouth to demonstrate that he was
prejudiced by any deficiency in his counsel’s performance, and in
this case, he has failed to carry that burden of showing
prejudice. See United States v. Foster, 68 F.3d 86, 88 (4th Cir.
1995).
Weymouth relies on Hammond v. United States, 528 F.2d 15 (4th
Cir. 1975), to argue that he was prejudiced by his advice of
counsel. In Hammond, counsel erroneously advised his client that
he faced a 90-year sentence, when in reality he could at most have
received a 55-year sentence. The error that counsel made in
Hammond, however, unlike that which occurred in Lambey, was
reinforced by the clerk of the court during the Rule 11 hearing
and was never corrected by the court. Hammond, 528 F.2d at 16.
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Accordingly, we vacated Hammond’s guilty plea because counsel’s
erroneous advice had been “corroborated by the information
supplied by the court.” Id. at 19. In Lambey, on the other hand,
the district court provided the defendant with the correct
statement at the Rule 11 colloquy, correcting the erroneous advice
given by the defendant’s counsel earlier. Because those are the
circumstances here, Lambey is the relevant precedent, and
Weymouth’s reliance on Hammond is misplaced.
Finding no prejudice, we need not reach the question of
whether Weymouth’s counsel was in fact deficient. The judgment of
the district court is
AFFIRMED.
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