United States v. Taylor ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 18, 2003
Charles R. Fulbruge III
Clerk
No. 01-21058
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES H. TAYLOR, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-580-1
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Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant James H. Taylor, Jr., appeals his
conviction and sentence for possession of counterfeit U.S.
currency. We affirm.
We review Taylor’s argument that the government breached the
plea agreement for plain error only and hold that the record
evidences neither express nor implicit advocacy by the government
in favor of a U.S.S.G. § 3B1.1(a) adjustment in contravention of
the plea agreement, as it is construed by Taylor. See United
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
States v. Wilder, 15 F.3d 1292, 1301 (5th Cir. 1994). We further
hold, on plain error review, that the record is devoid of evidence
to support Taylor’s contention that the district judge
impermissibly participated in the plea negotiations. See FED.
R. CRIM. P. 11(e)(1) (2001); United States v. Vonn, 122 S. Ct. 1043,
1046 (2002). Neither is Taylor’s belief that the district judge
was biased in favor of reaching a plea agreement substantiated by
the record; his unsupported subjective belief is an insufficient
ground on which to invalidate his guilty plea. See Matthews v.
United States, 569 F.2d 941, 943-44 (5th Cir. 1978).
We also hold, on plain error review, that Taylor’s waiver of
appeal was valid and that he was sufficiently informed of its terms
by the district court. See FED. R. CRIM. P. 11(c)(6) (2001); Vonn,
123 S. Ct. at 1046. Having held Taylor’s appeal waiver valid, we
are without jurisdiction to review the issue whether the district
court erred in refusing to depart downwardly pursuant to U.S.S.G.
§ 3E1.1(a). United States v. Melancon, 972 F.2d 566, 570 (5th Cir.
1992).
We also reject the contention that Taylor’s guilty plea was
rendered invalid by counsel’s alleged ineffective assistance.
Taylor has not established the requisite prejudice: He has failed
to show that, but for counsel’s alleged deficiencies, Taylor would
have insisted on going to trial. See Hill v. Lockhart, 474 U.S.
52, 59 (1985); Strickland v. Washington, 466 U.S. 668, 687-94, 697
(1984). Finally, the district court did not plainly err in
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imposing a two-level enhancement pursuant to U.S.S.G. § 5K2.0.
Even though the involvement of family members in a criminal scheme
may not be a factor expressly taken into consideration by the
Sentencing Commission, its consideration in sentencing is neither
forbidden nor discouraged. See Koon v. United States, 518 U.S. 81,
95 (1996); U.S.S.G. §§ 5H1.1-12, 5K2.1-21.
AFFIRMED; Motion for partial dismissal of appeal denied as
moot.
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