United States v. Hollins , 97 F. App'x 477 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 4, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-21040
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
REGINALD TYRONE HOLLINS
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
(00-CR-242)
Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.
PER CURIAM:*
Reginald Hollins, a federal prisoner, appeals the district
court’s dismissal of his § 2255 motion. Hollins contends that
his counsel performed ineffectively by failing to contest the
district court’s decision to sentence him to concurrent prison
terms, each of which exceeded the statutory maximum for the count
*
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that this opinion should not be published and is not precedent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.
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on which it was imposed.
At the outset, we explain what is wrong with Hollins’s
sentences. We do so because it is unclear whether the district
court identified the problem, and it is clear that the
government’s appellate brief does not correctly identify the
quandary. We begin by referring to one particular provision of
the Sentencing Guidelines, § 5G1.2(d). When a defendant is
convicted on multiple counts, as was the case here, the
Guidelines state that the sentence imposed on each count should
be the total punishment1 calculated under the Guidelines, with
the sentences on all counts running concurrently. U.S. SENTENCING
GUIDELINES MANUAL § 5G1.2(b)-(c) (2000). But, when the highest
statutory maximum sentence is less than the total punishment, as
also occurred here, the Guidelines provide that “the sentence
imposed on one or more of the other counts shall run
consecutively, but only to the extent necessary to produce a
combined sentence equal to the total punishment.” Id. § 5G1.2(d)
(emphasis added).
Section 5G1.2(d) of the Guidelines is the key to
understanding the error in Hollins’s sentences. Hollins pleaded
guilty to violating two statutory provisions: 18 U.S.C.
§§ 922(g)(1) and 2119(1). The Guidelines dictated that Hollins’s
1
An individual’s “total punishment” is the combined
length of her sentences. See U.S. SENTENCING GUIDELINES MANUAL
§ 5G1.2 cmt. (2000).
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total punishment should be from 151 to 188 months, and the
district court decided to sentence Hollins at the top of that
guideline range (i.e., 188 months). Applying the general rule
for multiple-count cases, Hollins would have been sentenced to
188-month concurrent sentences on each count. See § 5G1.2(b)-
(c). But, here, the statutory maximum sentence for the § 2119(1)
conviction was 180 months, and for the § 922(g)(1) conviction it
was 120 months. Thus, as correctly explained in the presentence-
investigation report, § 5G1.2(d) applies. Hollins therefore
should have been sentenced to the statutory maximum of 180 months
on the § 2119(1) count, followed by a consecutive eight-month
term on the § 922(g)(1) count, for a total punishment of 188
months. See United States v. Lucas, 157 F.3d 998, 1001-02 (5th
Cir. 1998) (“The maximum statutory penalty sets the upper limit
that may be imposed for a particular count.”). Instead, the
district court sentenced Hollins to the entire 188 months on each
count, with the sentences running concurrently. Between the cup
and the lip, or as here, between the presentence-investigation
report and the judgment, a slip occurred and, as a result, both
of Hollins’s concurrent, 188-month sentences exceeded the
relevant statutory maximums.
We turn to the next point, one which the district court (and
the government on appeal) most assuredly identified. In his plea
agreement, Hollins waived his right to appeal his sentence,
unless the district court imposed either an upward departure or a
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sentence above the statutory maximum. Hollins also waived,
without exception, his right to bring a collateral attack on his
sentence under § 2255. Hollins did not appeal his sentence, but
he now seeks habeas relief. So, we are faced with the question
whether his waiver of the right to bring a collateral attack on
his sentence barred the district court (and bars us) from
considering his claim that his counsel was ineffective in failing
either to object to or to appeal his sentences.
In this circuit, generally, “an informed and voluntary
waiver of post-conviction relief is effective to bar such
relief.” United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.
1994) (per curiam). To date, we have recognized one exception to
this general rule: an ineffective-assistance claim survives a
§ 2255 waiver, but “only when the claimed [ineffective]
assistance directly affected the validity of that waiver or the
plea itself.” United States v. White, 307 F.3d 336, 343 (5th
Cir. 2002). But, in White, this court also left open the
question whether a § 2255 waiver could be enforced “where the
sentence facially (or perhaps indisputably) exceeds the statutory
limits.” White, 307 F.3d at 343 n.4. This case presents the
question left open in White.
We join two other circuits that have stated that a § 2255
waiver does not preclude review of a sentence that exceeds the
statutory maximum. See United States v. Cockerham, 237 F.3d
1179, 1182-83, 1187 (10th Cir. 2001); DeRoo v. United States, 223
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F.3d 919, 923 (8th Cir. 2000); United States v. Michelsen, 141
F.3d 867, 872 n.3 (8th Cir. 1998); see also United States v.
Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004); United States v.
Andis, 333 F.3d 886, 891-92 (8th Cir. 2003); United States v.
Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001); United States v.
Teeter, 257 F.3d 14, 25 n.10 (1st Cir. 2001); United States v.
Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997); United States
v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996); United States v.
Bushert, 997 F.2d 1343, 1350 n.18 (11th Cir. 1993); United States
v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (all indicating that
a waiver of the right to appeal a sentence would be unenforceable
if the challenged sentence exceeded the statutory maximum); cf.
United States v. Goodman, 165 F.3d 169, 174-75 (2d Cir. 1999)
(refusing to enforce a waiver that purported “to deny the
defendant any appellate challenge not only to the selection of an
applicable guideline range but also to any upward departure from
that range, as long as the statutory maximum is not exceeded”);
United States v. Melancon, 972 F.2d 566, 568 & n.3 (5th Cir.
1992) (leaving open whether a waiver of the right to appeal would
be enforceable where the sentence is “contrary to the district
court’s assurances” at the plea hearing regarding length).
Accordingly, Hollins’s waiver does not bar his claim that his
counsel rendered ineffective assistance by failing to challenge
the imposition of sentences exceeding the applicable statutory
maximums.
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On the merits of that claim, we hold that Hollins’s counsel
was ineffective in neither objecting to nor appealing each of his
sentences on the basis that it exceeded the statutory maximum for
the crime to which he pleaded guilty. United States v. Conley,
349 F.3d 837, 839-841 (5th Cir. 2003). Considering each
sentence, Hollins was prejudiced by his lawyer’s deficient
performance. Cf. Apprendi v. New Jersey, 530 U.S. 466, 474
(2000) (indicating that each sentence must be examined
individually to determine whether it comports with the
Constitution). Hollins is entitled to the habeas relief he
seeks--to have his sentences on both counts set aside.
Accordingly, we REVERSE the district court’s judgment
denying relief under 28 U.S.C. § 2255, we VACATE both of
Hollins’s sentences, and we REMAND this case to the district
court for resentencing consistent with this opinion.
REVERSED, SENTENCES VACATED, and REMANDED FOR RESENTENCING.
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