United States v. Jones ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50832
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES STEPHEN JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-91-CR-55-1
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June 26, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
James Stephen Jones, federal prisoner # 56081-080, appeals the
district court’s judgment in which the district court vacated his
18 U.S.C. § 924(c) conviction pursuant to Bailey v. United States,
516 U.S. 137 (1995), and resentenced him on the remaining three
convictions. Jones argues that Judge Walter Smith erred in not sua
sponte recusing himself because Jones had filed a separate civil
action against him. Because Judge Smith would be entitled to
absolute immunity from liability in Jones’ civil action, see Boyd
v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994), a reasonable person
*
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that this opinion should not be published and is not precedent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.
No. 99-50832
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would not have doubts about Judge Smith’s impartiality based on
Jones’ civil action against him. See Levitt v. University of Texas
at El Paso, 847 F.2d 221, 226 (5th Cir. 1988).
Jones argues that his counsel was ineffective in that she had
an actual conflict, she failed to file a notice of appeal, failed
to order transcripts, failed to provide an transcript order form to
Jones, and failed to file a motion for recusal of Judge Smith.
Because the record was not adequately developed in the district
court, we decline to review all but one of Jones’ claims that his
counsel was ineffective at this time without prejudice to Jones’
right to raise these claims in a future 28 U.S.C. § 2255 motion.
See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
The record is, however, sufficiently developed to review
Jones’ claim that his counsel was ineffective for failing to file
an appeal. Jones timely filed a pro se notice of appeal of the
district court’s judgment on remand. Thus, he has not shown that
he was prejudiced by his counsel’s failure to file a notice of
appeal. See Goodwin v. Johnson, 132 F.3d 162, 170 (5th Cir. 1997).
Jones argues that the district court should have allowed him
to withdraw his guilty plea because the plea agreement was defunct
after his § 924(c) conviction was vacated. Jones’ case is
distinguishable from United States v. Moulder, 141 F.3d 568 (5th
Cir. 1998). In Moulder, the defendants pleaded guilty to using and
carrying a firearm during a drug-trafficking offense pursuant to
plea agreement in which the Government agreed to drop a related
drug charge. Id. at 570. The firearm offenses were subsequently
vacated pursuant to Bailey; the defendants subsequently were
No. 99-50832
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indicted and pleaded guilty to the drug offense. Id. The court
held that the second conviction did not violate the Double Jeopardy
Clause. Id. at 571-72. Jones originally pleaded guilty to four
offenses; Jones’ § 924(c) conviction was subsequently vacated.
Jones’ plea agreement did not become defunct merely because his
Jones’ § 924(c) conviction was vacated. Moulder is inapplicable to
the instant case.
For the first time on appeal, Jones argues that the district
court did not inform him that he would waive his right to a jury
trial by pleading guilty. Because Jones did not raise this
argument in the district court at the evidentiary hearing on
remand, review is limited to plain error. Under Fed. R. Crim.
P. 52(b), this court may correct forfeited errors only when the
appellant shows the following factors: (1) there is an error,
(2) that is clear or obvious, and (3) that affects his substantial
rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc) (citing United States v. Olano, 507 U.S. 725, 730-
36 (1993)). If these factors are established, the decision to
correct the forfeited error is within the sound discretion of the
court, and the court will not exercise that discretion unless the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Olano, 507 U.S. at 736.
Jones’ argument is frivolous. Jones was advised of his right to a
jury trial at the rearraignment hearing, along with other
constitutional rights, and he waived that right by entering a
guilty plea.
No. 99-50832
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Jones argues for the first time on appeal that he was coerced
into pleading guilty because he was told that, if he did not, his
wife would be prosecuted and would go to prison for 12 to 15 years.
Because Jones did not raise this issue in the district court,
review is limited to plain error. See Calverley, 37 F.3d at
162-64. The record of the rearraignment hearing indicates that
Jones’ guilty plea was knowing and voluntary. Jones expressly
stated that he was pleading guilty freely and voluntarily. He also
stated that no one had threatened, forced, or coerced him into
pleading guilty. Id. Jones’ “[s]olemn declarations in open court
carry a strong presumption of verity.” Blackledge v. Allison, 431
U.S. 63, 74 (1977). Jones has not shown plain error concerning the
voluntariness of his guilty plea.
Jones argues that the district court erred in enhancing his
sentence for possession of a firearm pursuant to § 2D1.1(b)(1) of
the United States Sentencing Guidelines. Section 2255 provides
authority for the district court to resentence a defendant and
apply the enhancement under § 2D1.1(b)(1) when the defendant’s
§ 924(c) conviction is vacated. See United States v. Benbrook, 119
F.3d 338, 339-40 (5th Cir. 1997); United States v. Hernandez, 116
F.3d 725, 727-28 (5th Cir. 1997). In view of the evidence
presented at the evidentiary hearing held by the district court on
remand, Jones has not shown that the district court’s factual
finding that he possessed firearms in connection with his drug
No. 99-50832
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offense was clearly erroneous. See United States v. Eastland, 989
F.2d 760, 770 (5th Cir. 1993); United States v. Devine, 934 F.2d
1325, 1339 (5th Cir. 1991).
AFFIRMED.