United States v. Handy , 182 F. App'x 341 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 25, 2006
Charles R. Fulbruge III
Clerk
No. 04-30108
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY HANDY, also known as Dubie,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CV-2071
USDC No. 2:00-CR-319-1-D
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Harry Handy appeals the district court’s denial of his
28 U.S.C. § 2255 motion challenging his guilty-plea conviction for
conspiracy to possess with intent to distribute more than five
kilograms of cocaine and more than 50 grams of cocaine base. A
judge of this court granted Handy’s motion for a certificate of
appealability (COA) on the following issues: (1) whether Handy’s
trial attorneys were ineffective in that they promised falsely that
Handy would be sentenced to no more than 13 years in prison if he
*
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this opinion should not be published and is not precedent except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. 04-30108
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pleaded guilty; (2) whether his attorneys’ false promise rendered
his guilty plea unknowing and involuntary; and (3) whether the
district court should have conducted an evidentiary hearing on
these issues. United States v. Handy, No. 04-30108 (5th Cir. Aug.
18, 2004)(unpublished). On reconsideration, a panel of this court
granted a COA on the additional issue whether Handy’s trial counsel
was ineffective for failing to object at sentencing to the
Government’s breach of the plea agreement. United States v. Handy,
No. 04-30108 (5th Cir. Oct. 27, 2004) (unpublished).
Handy argues that his trial attorneys were ineffective in that
they induced him to plead guilty by falsely promising him that he
would receive no more than 13 to 17 years of imprisonment and they
advised him to deny that he was promised a specific sentence during
the guilty-plea hearing. He also argues that the district court
erred in not considering the affidavits that he submitted. In view
of United States v. Herera, 412 F.3d 577, 580-82 (5th Cir. 2005),
the district court should have conducted an evidentiary hearing to
determine whether his attorneys advised Handy that he would not
receive more than 13 to 17 years of imprisonment and whether his
attorneys advised Handy to deny that he received a promise of a
specific sentence at the guilty-plea hearing. Accordingly, the
district court’s judgment is vacated and the case is remanded for
an evidentiary hearing concerning these issues.
Handy also argues that his trial attorneys failed to object to
the Government’s breach of the plea agreement. Although the
No. 04-30108
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Government may bargain away its discretion concerning whether to
file a motion for a downward departure based on a defendant’s
substantial assistance under U.S.S.G. § 5K1.1, the Government did
not do so in this case. See United States v. Aderholt, 87 F.3d
740, 742 (5th Cir. 1996). Handy’s plea agreement expressly states:
“It shall be in the sole discretion of the United States Attorney
as to whether a motion requesting departure from the sentencing
guidelines should be filed.” Handy’s case is distinguishable from
United States v. Laday, 56 F.3d 24, 25-26 (5th Cir. 1995), in which
the Government did not retain the discretion to determine whether
to file a § 5K1.1 motion. Handy has not shown that the Government
breached the plea agreement in the instant case by not filing a
§ 5K1.1 motion for a downward departure based on his substantial
assistance. See Aderholt, 87 F.3d at 742. Therefore, the district
court did not err in holding that Handy’s trial counsel was not
ineffective for failing to object to the Government’s alleged
breach of the plea agreement. See United States v. Kimler, 167
F.3d 889, 893 (5th Cir. 1999).
In his brief, Handy raises two additional issues: (1) his
trial attorneys were ineffective in that they failed to investigate
the facts, file objections to, and present evidence in opposition
to the two-level sentencing enhancement for possession of a weapon
pursuant to U.S.S.G. § 2D1.1(b)(1); and (2) his appellate attorney
was ineffective in that he failed to argue that the district court
failed to establish on the record at the rearraignment hearing both
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the factual basis for the plea and the elements of the offense. A
COA was not granted as to these issues and, therefore, this court
lacks jurisdiction to consider them. See 28 U.S.C. §
2253(c)(1)(C); Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir.
1997).
AFFIRMED IN PART; VACATED IN PART; REMANDED FOR EVIDENTIARY
HEARING.