Daryl E. Nimrod v. United States ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3896
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Darryl Nimrod, *
*
Appellant, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
United States of America, *
*
Appellee. *
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Submitted: June 9, 1997
Filed: September 4, 1997
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Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and KYLE,1
District Judge.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Darryl Nimrod was indicted on three counts related to the distribution of cocaine
base and, according to him, the government subsequently offered to enter into two plea
agreements with him. It first offered him an eighteen-month sentence in exchange for
a guilty plea on one count and an agreement to testify against his co-defendants. When
he rejected this offer, the government proposed a plea agreement under which he did
1
The Honorable Richard H. Kyle, United States District Judge for the District of
Minnesota, sitting by designation.
not have to testify but would receive an eight-year sentence. He rejected this plea offer
as well and went to trial. After a jury found Mr. Nimrod guilty of two counts of
conspiracy to distribute cocaine, the trial court sentenced him to 360 months
imprisonment on each count, to run concurrently, and we affirmed his conviction and
sentence. See United States v. Nimrod, 940 F.2d 1186 (8th Cir. 1991), cert. denied,
502 U.S. 1079 (1992).
Mr. Nimrod then brought the present action to vacate his sentence under 28
U.S.C. § 2255, arguing that he rejected the government's second offer only because his
counsel told him that he faced a maximum sentence of fourteen years. (Mr. Nimrod did
not assert in his petition that he would have accepted the first plea offer had he been
properly advised with respect to his potential sentence.) But for this ineffective
assistance of his counsel, Mr. Nimrod says, he would not have gone to trial and would
have been sentenced to only eight years.
The infirmity in Mr. Nimrod's argument, as the district court2 pointed out, is that,
assuming the truth of Mr. Nimrod's allegations, the deal that he was offered was not
one that the trial court could have accepted, because the statute under which the
government charged Mr. Nimrod carried a minimum sentence of ten years. See 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. If Mr. Nimrod had pleaded guilty under
such an agreement, the most that he could have expected would have been to be
allowed to withdraw his plea when it was discovered that the sentence agreed to was
illegal, and then go to trial -- precisely the course of action about which he now
complains.
Mr. Nimrod argues on appeal, however, that the offer from the government was
actually for the ten-year minimum statutory sentence, and that the eight-year figure that
2
The Honorable D. Brook Bartlett, Chief Judge, United States District Court for
the Western District of Missouri.
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his lawyer mentioned to him was just a rough approximation of the actual time, after
good-time deductions, that he would have to serve under the minimum sentence. We
are not sure that Mr. Nimrod made this argument below, but even if he did, it is of no
avail to him. That is because, even assuming that Mr. Nimrod's construction of the
offer made to him is correct, that offer was itself one that the sentencing court would
have had to reject because Mr. Nimrod was a career offender, and, because his offense
level under the sentencing guidelines was 37 and his criminal history category was VI,
he was therefore subject to a minimum sentence of thirty years. See U.S.S.G.
§ 4B1.1(A). This is precisely the sentence that he received after going to trial, and he
therefore cannot claim that any prejudice resulted from his counsel's advice.
Since Mr. Nimrod is not entitled to any relief even if all of his allegations are
taken as true, the district court properly denied his petition without a hearing. See
Engelen v. United States, 68 F.3d 238, 240-41 (8th Cir. 1995). We therefore affirm
the district court's order.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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