United States v. Aaron Scott Hare , 105 F. App'x 123 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3791
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Aaron Scott Hare, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 7, 2004
Filed: July 26, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Aaron Hare appeals the district court’s1 judgment entered after he pleaded
guilty to distributing 104.3 grams of a substance containing 52.1 grams of actual
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). We affirm.
The plea agreement and sentencing stipulations provided that the offense in
question was punishable by a statutory term of 10 years to life imprisonment, and that
Hare faced a Guidelines imprisonment range of 120-135 months. At the change-of-
1
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
plea hearing, the district court questioned Hare in conformity with Federal Rule of
Criminal Procedure 11, and Hare affirmed that he understood he faced a 10-year
minimum sentence based on the nature and weight of the drug involved. There were
no objections to the presentence report (PSR), which described the offense conduct
and Guidelines calculations consistent with the plea agreement, and which calculated
a Category III criminal history. Although at sentencing Hare made a pro se request
for a second opinion on the purity of the methamphetamine he sold, his counsel
affirmed Hare’s adherence to the plea agreement, and Hare did not comment further.
The district court--after finding that the plea was knowingly and voluntarily entered--
sentenced Hare at the bottom of the Guidelines range to 120 months imprisonment
and 5 years supervised release.
On appeal, Hare contends he entered an unknowing and involuntary stipulation
of fact in his plea agreement. He claims that although he “entered the overall plea
agreement knowingly, voluntarily, and intelligently,” he did not understand the
sentencing impact of the drug-purity stipulation. Hare seeks a new sentencing
hearing to allow purity testing, but does not want to withdraw his guilty plea. He also
argues that the district court plainly erred in calculating his criminal history score, but
concedes that the alleged error had no effect on his criminal history category. The
government urges affirmance, and has moved to supplement the record with material
in support of its argument that Hare’s criminal history score was correctly calculated.
We find no merit to Hare’s argument concerning the drug stipulation, as he was
unquestionably advised of the minimum and maximum sentences in his written plea
agreement and during the plea hearing. See United States v. Enriquez, 205 F.3d 345,
348 (8th Cir.), cert. denied, 531 U.S. 890 (2000); United States v. Granados, 168 F.3d
343, 345 (8th Cir. 1999) (per curiam) (defendant who pleads guilty has no right to be
apprised of sentencing options outside statutory minimums and maximums); see also
United States v. Castaneda-Villa, 345 F.3d 668, 669 (8th Cir. 2003) (per curiam) (no
sentencing error when district court sentenced defendant based on plea stipulations
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and unobjected-to PSR statements). To the extent Hare is suggesting that his counsel
was ineffective, such a claim must be raised in a 28 U.S.C. § 2255 motion. See
Enriquez, 205 F.3d at 348.
Because the alleged error relating to Hare’s criminal history calculation had no
effect on his sentence, we do not decide the issue. See United States v. Evans, 285
F.3d 664, 674 (8th Cir. 2002) (where no objection was raised, review is for plain
error; no need to decide whether sentencing court plainly erred in criminal history
calculation where alleged error had no effect and thus was harmless), cert. denied,
537 U.S. 1196 (2003). We therefore deny as moot the government’s motion to
supplement the record. The judgment of the district court is affirmed.
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