United States v. Porter ( 1995 )


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  •                  UNITED STATES COURT OF APPEALS
    For the Fifth Circuit
    No. 95-60163
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    JAMES PORTER,
    Defendant-Appellant.
    Appeal from the United States District Court
    For the Northern District of Mississippi
    (3:93 CV 196 (1:92 CR 131))
    ( August 30, 1995 )
    Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
    PER CURIAM:*
    BACKGROUND
    James J. Porter pleaded guilty pursuant to a plea agreement
    which provided that Porter would waive indictment, plead guilty to
    one count of conspiracy to possess 19 grams of crack cocaine with
    *
    Local Rule 47.5 provides: "The publication of opinions
    that have no precedential value and merely decide particular cases
    on the basis of well-settled principles of law imposes needless
    expense on the public and burdens on the legal profession."
    Pursuant to that Rule, the Court has determined that this opinion
    should not be published.
    intent    to     distribute,   and   provide   truthful   information   and
    testimony.       The government agreed not to prosecute Porter for any
    related or similar offenses. The agreement expressly provided that
    there was no agreement as to what punishment or sentence the court
    may impose and that both parties agreed that punishment would be
    entirely in the court's discretion.
    At the guilty plea hearing, the government filed a one-count
    information charging that "from about June 1992 to August 7 of
    1992" Porter conspired with "other persons known and unknown to
    possess with intent to distribute approximately 19 grams of cocaine
    base which is crack cocaine".         Porter waived a formal reading of
    the information.        The court asked Porter if he had in fact
    committed the offense, and Porter replied that he had.           The court
    then asked the government to state the factual basis for the
    charge.    The government stated that:
    [B]eginning around June 1992 James Porter
    negotiated to supply Joe Smith[,] Jr., a drug
    dealer   in   Columbus,   Mississippi,   with
    approximately 19 grams of cocaine base for
    distribution in the Columbus, Mississippi[,]
    area.
    Smith placed telephone calls to Mr. Porter,
    who is located in Meridian.    Called from a
    place in the Columbus, Mississippi[,] area to
    negotiate the purchase. Later Smith agreed to
    cooperate with the agent, and on August 7,
    1992, a controlled purchase of 19 grams of
    cocaine base was made from Mr. Porter. . . .
    The court determined that the factual basis was sufficient,
    and Porter pleaded guilty.           The court informed Porter that a
    presentence report (PSR) would be prepared and that he would be
    afforded the opportunity to read the PSR.             The court released
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    Porter with the government's concurrence.              The prosecutor advised
    the court that Porter had been cooperating "in what we think is
    going to be some significant investigations".
    At the sentencing hearing, the court asked Porter's counsel
    whether he had the opportunity to read the PSR and review it with
    his client.       Porter's counsel responded that he had.            The court
    asked whether there were any unresolved questions, and counsel
    stated that there were none.          The court also asked Porter whether
    he had anything to say to mitigate his punishment.            Porter's answer
    was:    "No, sir, Your honor."
    Porter's    counsel   argued    to   the    court    for   leniency    in
    sentencing Porter, stating that Porter had taken it upon himself to
    cooperate.    The government confirmed that Porter had cooperated,
    but indicated that his cooperation had not "risen to the level of
    substantial assistance". The prosecutor suggested that there might
    be an opportunity for a Rule 35 motion after sentencing if the
    court allowed Porter to report voluntarily. The court explained to
    Porter that if the government was not in a position to make a
    departure pursuant to U.S.S.G. § 5K1.1, the court was bound by the
    mandatory minimum sentence.       The court added that the government
    could make a Rule 35 motion within one year for substantial
    assistance rendered during that period.            After sentencing Porter,
    the court allowed him sixty days to report "to give him an
    opportunity   to     complete   the    matter     of   cooperation   with    the
    authorities".
    3
    Porter did not appeal, but filed the instant motion pursuant
    to 
    28 U.S.C. § 2255
    .        Porter alleged that the plea agreement was
    not supported by a sufficient factual basis in violation of Fed. R.
    Crim.   P.   11(f).        Specifically,     he    asserted    that     because   a
    government informant cannot be a coconspirator, he could not be
    guilty of the offense charged.          He also alleged that he was denied
    effective assistance of counsel because his lawyer failed to
    investigate whether Smith was an informant, and failed to inform
    Porter that the coconspirator argument was an affirmative defense.
    Last,   Porter   alleged      that   the    government       breached   the    plea
    agreement.    According to Porter, he had an oral agreement with the
    government    that    it    would    seek   a     downward    departure    if     he
    cooperated, and he fulfilled his end of the bargain but the
    government did not.
    The district court denied the motion.                  After Porter filed
    notice of appeal, the court granted his motion to proceed in forma
    pauperis (IFP).
    OPINION
    In reviewing the denial of a § 2255 motion, this Court reviews
    the   district   court's      factual   findings      for    clear    error,    and
    questions of law are reviewed de novo.              United States v. Gipson,
    
    985 F.2d 212
    , 214 (5th Cir. 1993).
    Porter raises his district-court argument that the guilty plea
    was not supported by a factual basis in violation of Rule 11(f).
    The district court, in rejecting this claim, determined that:
    the factual basis presented both at the plea
    hearing and in the presentence report -- to
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    which   Porter   never    objected   --   "was
    sufficiently specific to allow the court to
    determine that [Porter's] conduct was within
    the ambit of that defined as criminal," United
    States v. Oberski, 
    734 F.2d 1030
    , 1031 (5th
    Cir. 1984), and reveals that the charged
    conspiratorial conduct occurred before the co-
    conspirator   began   cooperating   with   the
    government, not after. . . .
    Porter argues that he was not presented with the PSR until
    after he was incarcerated and that, had he seen it before, he would
    have objected to it.   He raises whether, because he did not object
    to the PSR, the district court violated Fed. R. Crim. P. 32.
    Porter also maintains that the PSR could not supply a factual basis
    because it contained only hearsay statements by Smith, and there
    was no evidence showing that the conspiracy was underway before
    Smith began cooperating with the government.
    A defendant who has plead guilty or has been convicted and has
    exhausted his right to appeal is presumed to have been "`fairly and
    finally convicted'".   United States v. Shaid, 
    937 F.2d 228
    , 231-32
    (5th Cir. 1991) (en banc) (citation omitted), cert. denied, 
    502 U.S. 1076
     (1992).    "[A] `collateral challenge may not do service
    for an appeal.'"    
    Id. at 231
     (quoting United States v. Frady, 
    456 U.S. 152
    , 165 (1982)).       Therefore, a defendant who raises a
    constitutional or jurisdictional issue for the first time on
    collateral review must show "both `cause' for his procedural
    default, and `actual prejudice' resulting from the error".   
    Id. at 232
     (quoting Frady, 
    456 U.S. at 168
    ).    The only exception to the
    cause and prejudice test is the "extraordinary case . . . in which
    a constitutional violation has probably resulted in the conviction
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    of one who is actually innocent".           
    Id. at 232
     (internal quotations
    and citation omitted).
    Allegations of error which are not of constitutional or
    jurisdictional magnitude which could have been raised on direct
    appeal may not be asserted on collateral review in a § 2255 motion.
    United States v. Capua, 
    656 F.2d 1033
    , 1037 (5th Cir. 1981).                    Such
    errors will be considered only if they could not have been raised
    on direct appeal, and if condoned, would result in a complete
    miscarriage of justice.      Shaid, 
    937 F.2d at
    232 n.7.
    Although a failure to comply with the formal requirements of
    Rule 11 is neither constitutional nor jurisdictional and can and
    should be raised on direct appeal, in some cases Rule 11 violations
    can have a constitutional dimension bearing on the knowing and
    voluntary nature of the guilty plea.           Therefore, to be cognizable
    on § 2255, the movant must show that the alleged error resulted in
    a     "complete   miscarriage   of     justice"       or   in     a     proceeding
    "inconsistent with the rudimentary demands of fair procedure".
    United States v. Timmreck, 
    441 U.S. 780
    , 783-84 (1979); United
    States v. Prince, 
    868 F.2d 1379
    , 1385 (5th Cir.), cert. denied, 
    493 U.S. 932
     (1989).
    Porter submits no reason why the Rule 11 issue was not raised
    on    direct   appeal.    The   plea       colloquy   shows     that     both   the
    information and the government's recitation of the factual basis
    for the plea argument stated that the conspiracy began in June.
    The    factual    basis   specifically       provided      that       Smith   began
    cooperating after he and Porter began negotiations. Porter did not
    6
    object to either the information or the government's factual basis.
    Thus, he does not make the requisite showing of a miscarriage of
    justice which would entitle him to § 2255 relief on this claim.
    Porter's argument that the district court violated Rule 32
    because the court did not permit him to comment on the PSR was not
    raised in the district court.   "[I]ssues raised for the first time
    on appeal are not reviewable by this court unless they involve
    purely legal questions and failure to consider them would result in
    manifest injustice."   Varnado v. Lynaugh, 
    920 F.2d 320
    , 321 (5th
    Cir. 1991) (internal quotation and citation omitted).   Whether the
    court permitted Porter to comment on the PSR is not a purely legal
    issue, and this Court will not consider it.
    Porter also argues that the district court did not apply the
    sentencing guidelines correctly because he was sentenced to 60
    months of imprisonment when his base offense level and criminal
    history category called for 46 to 57 months of imprisonment.
    Porter did not raise this argument in the district court.   As noted
    above, "[I]ssues raised for the first time on appeal are not
    reviewable by this court unless they involve purely legal questions
    and failure to consider them would result in manifest injustice."
    Varnado, 
    920 F.2d at 321
    .
    Whether the district court correctly sentenced Porter is a
    legal question.   See United States v. Suarez, 
    911 F.2d 1016
    , 1018
    (5th Cir. 1990) (the district court's purely legal application of
    the guidelines is subject to de novo review).    No miscarriage of
    justice will occur, however, if the court does not review this
    7
    argument.    Porter was sentenced to 60 months of imprisonment, the
    statutory minimum.    
    21 U.S.C. §§ 841
     and 846 (West 1981 & Supp.
    1995). The guidelines provide that "[w]here a statutorily required
    minimum sentence is greater than the maximum of the applicable
    guideline range, the statutorily required minimum sentence shall be
    the   guideline   sentence".     §   5G1.1(b);   see   United   States   v.
    Schmeltzer, 
    960 F.2d 405
    , 408 (5th Cir.) ("statutorily mandated
    sentences are incorporated into the Sentencing Guidelines and
    prevail over the guidelines when in apparent conflict"), cert.
    denied, 
    113 S. Ct. 609
     (1992).
    Porter asserts that the plea agreement led him to believe that
    he was entitled to a downward departure and that the government
    breached the agreement.        In rejecting this claim, the district
    court reasoned that under § 5K1.1, the government has the power,
    but not the duty, to file a motion for a downward departure when a
    defendant has "`substantially assisted'". Further, the court noted
    that the written plea agreement contained no such agreement and
    that Porter repeatedly advised the court that the terms of the plea
    were encompassed by the written agreement.
    In his reply brief, Porter points out that at sentencing the
    government stated that his assistance "hasn't risen to the level of
    substantial assistance".       Porter argues that the government, in
    this statement, alludes to its oral promise that it would seek a
    departure.    Porter also argues that the government's statement
    regarding his release on bond that he had been "assisting the FBI
    and the Mississippi Bureau of Narcotics in what was going to be
    8
    significant investigations" is evidence that there was an oral
    agreement for a departure.
    Porter contends that he attempted to provide "substantial
    assistance," but that the federal agents repeatedly cancelled
    prearranged meetings, and that he did not have the means to
    coordinate his assistance because his car had been seized as a
    result of his arrest.        He further maintains that in spite of these
    obstacles, he nevertheless provided information that led to the
    arrest of two suspects.
    "[W]hen a guilty plea rests in any significant degree on a
    promise or agreement of the prosecutor, so that it can be said to
    be part of the inducement or consideration, such promise must be
    fulfilled." United States v. Valencia, 
    985 F.2d 758
    , 761 (5th Cir.
    1993) (internal quotations and citation omitted).               Porter, as the
    party alleging a breach of the plea agreement, bears the burden of
    proving     the   underlying     facts       establishing   a   breach   by   a
    preponderance of the evidence. United States v. Garcia-Bonilla, 
    11 F.3d 45
    , 46 (5th Cir. 1993).        To determine whether the government
    breached the plea agreement, the court must consider "whether the
    government's conduct is consistent with the parties' reasonable
    understanding     of   the    agreement".         
    Id.
       (internal   quotations
    omitted).     This inquiry is a question of law to be reviewed de
    novo.   
    Id.
    The written plea agreement contained no provision for the
    government to file a downward departure.            Porter assured the court
    that no promises, other than what was contained in the written
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    agreement, were made to him.           The government's statements do not
    indicate that it was bound to file a § 5K1.1 motion.                Thus, the
    government's conduct in not moving for a § 5K1.1 departure is
    consistent    with   the    parties'    reasonable   understanding    of    the
    agreement.    There was no breach.
    Porter raises his district court argument that he received
    ineffective assistance of counsel, but states for the first time on
    appeal that his lawyer was ineffective because he did not present
    and discuss the PSR with him.       He questions whether his lawyer even
    looked at the PSR, but acknowledges that he has no way of knowing.
    Porter further argues for the first time on appeal that his lawyer
    was ineffective for not objecting to the court's sentence of 60
    months when the Guidelines called for less and for not objecting to
    the PSR.    He adds that his lawyer was ineffective for advising him
    to waive his Fifth Amendment right to be indicted by a grand jury
    which would have revealed the fact that "the conspiracy began in
    June as well as the bases [sic] of the negotiations".
    As    noted   above,   this   Court    will   not   address   issues   not
    considered by the district court.           "[I]ssues raised for the first
    time on appeal are not reviewable by this court unless they involve
    purely legal questions and failure to consider them would result in
    manifest injustice."        Varnado, 
    920 F.2d at 321
    .       These issues are
    not purely legal.     See United States v. Faubion, 
    19 F.3d 226
    , 228
    (5th Cir. 1994) (ineffective assistance is a mixed question of law
    and fact).    Thus, this Court will not consider them for the first
    time on appeal.
    10
    Porter raises his district-court arguments that his sentence
    would have been different had counsel been more diligent in his
    investigation.           In   his    reply      brief,    Porter     expounds   on   this
    allegation, asserting that if his lawyer had investigated the
    circumstances of the case, he would have discovered the affirmative
    defense that one cannot conspire with a government informant or
    that a buyer-seller relationship does not constitute a conspiracy.
    Porter also argues that his lawyer was ineffective for "failing to
    secure the plea agreement in regards of both substantial assistance
    and guideline versus statutory application, and for failing to file
    any pretrial motions that may have aided in his defense's remaining
    arguments".    Construing his pleadings broadly, Porter raised these
    allegations       in     rebuttal        to   the     government's     answer   to    his
    complaint.
    This Court reviews conclusions regarding mixed questions of
    fact and law such as ineffective-assistance-of-counsel claims de
    novo.   Faubion, 
    19 F.3d at 228
    .                    The district court's factual
    findings are reviewed for clear error.
    To prevail on a claim of ineffective assistance of counsel, a
    defendant    must       show:      (1)   that      his   counsel's    performance    was
    deficient    in        that   it    fell      below      an   objective   standard     of
    reasonableness; and (2) that the deficient performance prejudiced
    his defense.           Strickland v. Washington, 
    466 U.S. 668
    , 689-94
    (1984). To show Strickland prejudice, a defendant must demonstrate
    that counsel's errors were so serious as to "render[] the result of
    the trial unreliable or the proceeding fundamentally unfair".
    11
    Lockhart v. Fretwell, 
    113 S. Ct. 838
    , 844 (1993).          "Unreliability
    or unfairness does not result if the ineffectiveness of counsel
    does not deprive the defendant of any substantive or procedural
    right to which the law entitles him."        
    Id. at 844
    .    In evaluating
    such claims, the court indulges in "a strong presumption" that
    counsel's representation fell "within the wide range of reasonable
    professional competence, or that, under the circumstances, the
    challenged action `might be considered sound trial strategy'".
    Bridge v. Lynaugh, 
    838 F.2d 770
    , 773 (5th Cir. 1988) (citation
    omitted). "A fair assessment of attorney performance requires that
    every effort   be   made   to   eliminate   the   distorting     effects   of
    hindsight,   to     reconstruct    the   circumstances      of    counsel's
    perspective at the time."       Strickland, 
    466 U.S. at 689
    .      A failure
    to establish either deficient performance or prejudice defeats the
    claim.   
    Id. at 697
    .
    The two-part Strickland test applies to guilty pleas in which
    ineffective assistance of counsel is alleged.          Hill v. Lockhart,
    
    474 U.S. 52
    , 59 (1985). To satisfy the prejudice requirement, "the
    defendant must show that there is a reasonable probability that,
    but for counsel's errors, he would not have pleaded guilty and
    would have insisted on going to trial".        
    Id. at 60
    .
    The district court determined that Porter's counsel was not
    ineffective for failing to assert the defense that one cannot
    conspire with a government informant.       Although Porter is correct
    in asserting that a confidential informant or government agent
    could not be a coconspirator, and a conspiracy cannot exist between
    12
    a defendant and a confidential informant or a government agent, see
    United States v. Manotas-Mejia, 
    824 F.2d 360
    , 365 (5th Cir.), cert.
    denied, 
    484 U.S. 957
     (1987), as noted by the district court, the
    factual basis established that the charged conspiratorial conduct
    occurred before the coconspirator began                 cooperating with the
    government, not after.       Thus, Porter fails to establish that his
    counsel was deficient for not asserting this defense.
    The district court determined that because Porter was not
    entitled to a downward departure, this ground of ineffective
    assistance was meritless.       As discussed above, Porter was not so
    entitled.    Therefore, counsel was not deficient in this regard.
    The district court noted that counsel was not deficient for
    failing to file pretrial motions because the case did not follow
    the standard procedures associated with formal indictment.               Porter
    has   not   stated   what   motions    should    have   been   filed   or   what
    information was forfeited as a result of the failure to file the
    motions.      Consequently,    he     cannot    establish   prejudice.      See
    Lockhart, 
    113 S. Ct. at 844
    .
    Porter has filed a motion to proceed IFP in this Court.               The
    motion is denied as moot inasmuch as the district court granted
    Porter's motion to proceed IFP on appeal.
    Porter filed a motion to expedite appeal arguing that, unless
    his appeal is expedited, he might have served the amount of time he
    should have been sentenced to. This Court grants such motions only
    13
    for "good cause shown".   5th Cir. R. 27.5.   Inasmuch as Porter has
    failed to show good cause, this motion is denied.
    AFFIRMED
    opin\95-60163.opn
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