United States v. Townley ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
Nos. 95-31026 & 96-30117
_______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRY WAYNE TOWNLEY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(CR-91-20008-01)
_________________________________________________________________
April 11, 1997
Before POLITZ, Chief Judge, and WISDOM and KING, Circuit Judges.
PER CURIAM:*
Terry Wayne Townley challenges his sentence entered pursuant
to a guilty plea and plea agreement as well as the district
judge’s refusal to recuse himself on the basis of personal bias.
Because we conclude that the government breached the plea
agreement, we vacate the sentence and remand for resentencing
before a different judge.
I. BACKGROUND
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
Pursuant to a plea agreement, Terry Wayne Townley pleaded
guilty to one count of conspiracy to kidnap. The district court
sentenced Townley to a 300-month term of imprisonment, an upward
departure from the sentence range in the Sentencing Guidelines.
On March 9, 1993, this court vacated Townley's sentence and
remanded to the district court for resentencing. The district
court again sentenced Townley to 300 months imprisonment, and
Townley again appealed his sentence. On December 28, 1994, this
court affirmed because the district court gave acceptable reasons
for its upward departure and the extent of the departure was not
an abuse of discretion.
On September 7, 1995, Townley filed a pro se motion to
vacate his sentence under 28 U.S.C. § 2255, alleging that the
government had breached the plea agreement by recommending an
upward departure and that the district judge's "personal bias
against Townley facilitated a Fifth Amendment violation."
Townley also filed a motion to disqualify the district judge.1
The district court denied the motion to disqualify, and Townley
appealed. By order entered on October 6, 1995, the district
court dismissed Townley’s § 2255 motion. Townley filed a notice
of appeal from that ruling on October 19, 1995. On January 8,
1996, Townley filed a “Request for a Rule 35 F.R.C.P.” The
1
Because we conclude that Townley must be resentenced
before a different judge, we need not address the merits of
Townley’s claim that the trial judge was biased against him. We
note, however, that Townley’s claim is without merit. See
Liteky v. United States, 510 U.S. 540 (1994).
2
district court dismissed the motion, and Townley filed a timely
notice of appeal from that dismissal.
Townley has two appeals pending before this court: No. 95-
31026 concerns Townley’s motion to disqualify the district judge
and his motion for relief under § 2255 and No. 96-30117 concerns
Townley’s Rule 35 motion. The appeals have been consolidated.2
II. DISCUSSION
A. 28 U.S.C. § 2255 arguments
1. procedural bar
The government argues that Townley is procedurally barred
from making his § 2255 claims because he did not raise the
arguments on direct appeal. "Relief under 28 U.S.C.A. § 2255 is
reserved for transgressions of constitutional rights and for a
narrow range of injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice." United States v. Vaughn, 955 F.2d 367,
2
Because it is a jurisdictional issue, on our own motion,
we examine whether Townley’s appeal is properly before this court
because he has not obtained a certificate of appealability. As
amended by the Antiterrorism and Effective Death Penalty Act
(AEDPA), to appeal the district court’s ruling on a 28 U.S.C. §
2255 motion, the appellant must obtain a certificate of
appealability (COA). This court has recently ruled that when
both the final judgment and notice of appeal are filed before the
effective date of the AEDPA amendments, the COA requirement for §
2255 motion does not apply. United States v. Rocha, No. 95-
11229, 1997 WL 123580, at *3 (5th Cir. Apr. 3, 1997). Because
the final judgment and Townley’s notice of appeal were filed
before AEDPA’s effective date, we conclude that Townley does not
need a COA and that Townley’s appeal is properly before this
court.
3
368 (5th Cir. 1992). Further, a defendant generally may not
raise a fundamental constitutional error in a § 2255 petition for
the first time without showing both cause for the procedural
default and actual prejudice resulting from the error. United
States v. Drobny, 955 F.2d 990, 995 (5th Cir. 1992). However, to
invoke the procedural bar, the government must raise it in the
district court. Id. at 995. In the instant case, the government
did not raise the procedural bar in the district court because
the motion was summarily denied before the government could file
a response. Thus, we must review Townley’s § 2255 argument on
the merits.3
2. breach of the plea agreement
Townley argues that the government breached the plea
agreement by recommending an upward departure. The plea
agreement provided that “[a]t the time of sentencing, the United
States agrees to make no recommendation as to an appropriate
sentence” and also stated that
3
In his reply brief, Townley asserts that if “the issues
raised in the Defendant’s Petition upon which this appeal is
based, were not preserved, then as a matter of law, the Defendant
has been denied effective assistance of counsel.” The
ineffective assistance of counsel argument is irrelevant because
we conclude that we can consider Townley’s § 2255 arguments.
Townley also asserts ineffective assistance of counsel
because at sentencing, his attorney “refused to call several
witness [sic] in my behalf, refussed [sic] to question or address
the PSI, when in fact it was wrong.” These are all the details
Townley provides concerning his claim. Townley’s failure to
provide supporting arguments for this claim amounts to a failure
to raise it, and thus we will not consider it on appeal. See
Brinkmann v. Abner, 813 F.2d 744, 748 (5th Cir. 1987).
4
[a]t the time of sentencing the United States will
not oppose any sentence recommendation by the defendant
or his counsel as to what the appropriate sentence
should be, as long as that sentence is not less than
the minimum sentence called for by the guideline
sentencing range . . . . The United States, however[,]
reserves the right to correct any factually erroneous
information proffered by the defendant or his counsel
. . . .
There is no argument that the government breached this agreement
during the first sentencing. However, after this court vacated
the sentence and remanded for resentencing, the government made
several statements that Townley contends violated the plea
agreement. At the sentencing hearing, the government stated:
[T]he United States would stress that this court, in
its initial sentencing of the defendant, sentencing the
defendant to twenty-five years was clearly justified by
the evidence. There has been additional evidence
submitted . . . . Twenty-five years was a minimal
amount that the court was justified in sentencing the
defendant to. The court was justified in sentencing
the defendant to thirty years based on the extreme
physical and emotional abuse . . . . The guidelines
could never take that into account. The government,
your honor, would ask that the defendant be sentenced
to thirty years incarceration.
The government later stated that is was “asking for a substantial
upward departure.” Townley claims that these statements breach
the plea agreement. The trial court denied Townley’s § 2255
motion, stating that “[t]his court has the right, and in fact
did, move for an upward departure on its own accord. . . .
Therefore, there was no breach of the plea agreement by the
government.” The government agrees and further asserts that the
government’s statements did not influence the sentencing judge
5
because Townley would likely have received the same sentence
without those statements.
In reviewing a district court’s denial of a § 2255 motion,
this court reviews factual findings for clear error and
conclusions of law de novo. United States v. Faubion, 19 F.3d
226, 228 (5th Cir. 1994). Whether the government has breached a
plea agreement is a question of law reviewed de novo. United
States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993).
"[I]f a prisoner's guilty plea is based ``in any significant
degree’ on a prosecutor's promise which reasonably may be said to
be part of the consideration for the agreement, that promise must
be fulfilled." United States v. Birdwell, 887 F.2d 643, 645 (5th
Cir. 1989)(quoting Santobello v. New York, 404 U.S. 257, 262
(1971)). The government must “strictly adhere” to the terms of
the agreement. Valencia, 985 F.2d at 760. If we determine that
the government has breached a plea agreement, “specific
performance of the agreement is called for, and Appellant must be
sentenced by a different judge.” Id. (internal alterations and
quotation omitted).
It seems clear that the trial court’s conclusion that the
government did not breach the plea agreement was erroneous. The
plea agreement clearly states that the government “agrees to make
no recommendation as to an appropriate sentence,” and yet at
sentencing the government requested “a substantial upward
departure.” The government even admits in its brief that the
6
statements “went beyond what was contemplated in the plea
agreement.”
The essence of the government’s defense is that its
statements did not affect the sentencing judge. However, in
Valencia, we found a similar argument unpersuasive. Id. at 761.
In Valencia, the government stipulated in the plea agreement that
the defendant had accepted responsibility for his actions, but at
sentencing, the government argued that the defendant had not
truly accepted responsibility. Id. at 760-61. We rejected the
government’s argument on appeal that the breach of the plea
agreement was harmless:
The interest of justice and standards of good
faith in negotiating plea bargains require reversal
where a plea bargain is breached. Santobello v. New
York, 404 U.S. at 262-63, 92 S. Ct. at 498-99. A
lesser standard would permit the government to make a
plea bargain attractive to a defendant, subsequently
violate the agreement and then argue harmless error,
thereby defrauding the defendant.
Id. at 761. Because we have determined that the government
breached the plea agreement, we vacate Townley’s sentence and
remand for resentencing before a different judge, as required by
Valencia.
3. errors in sentence calculation
Townley challenges the district court’s calculation of his
offense level, the district court’s reasons for departing from
the Sentencing Guidelines, and the extent of the departure. None
7
of these arguments are cognizable in a § 2255 action. See
Faubion, 19 F.3d at 232-33.
B. Rule 35 motion
Townley filed a motion under Rule 35 of the Federal Rules of
Criminal Procedure, seeking a reduction of his sentence for
“substantial assistance in the investigation or prosecution of
another person who has committed an offense.” FED. R. CRIM. P.
35(b). The district court denied Townley’s motion because a
reduction under Rule 35 can be granted only “on motion of the
Government.” Id. The government filed no such motion and is
under no duty to do so absent some express agreement. See United
States v. Aderholt, 87 F.3d 740 (5th Cir. 1996). No such
agreement exists in this case, and thus the district court did
not err in denying Townley’s motion under Rule 35.
III. CONCLUSION
As to No. 96-30117, we AFFIRM. As to No. 95-31026, we
VACATE Townley’s sentence and REMAND for resentencing before a
different judge on the basis that the government breached the
plea agreement. As to all other issues in No. 95-31026, we
AFFIRM.
8