United States v. Fisher

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
Nos. 96-31070 and 97-30424
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEEVERNE FISHER,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(93-CR-16-N)
_________________________________________________________________
October 15, 1998
Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:%
Leeverne Fisher plead guilty on March 8, 1993, to conspiracy
to possess with the intent to distribute in excess of fifty
kilograms of marihuana. He was sentenced on September 23, 1996, to
103 months’ imprisonment. In No. 96-31070, Fisher appeals his
conviction and sentence. Fisher subsequently filed a motion in the
district court seeking relief from the judgment, challenging both
his sentencing in abstentia and alleged inaccuracies in the
Presentence Report (PSR). The district court denied the motion on
%
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this opinion should not be published and is not precedent except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.
November 6, 1996, explaining that Fisher could present the issues
on his direct appeal. In February 1997, Fisher moved again for
relief from the judgment. The district court construed this as a
motion for reconsideration of its November 6, 1996 order and denied
the motion on April 14, 1997. In No. 97-30424, Fisher appeals the
district court’s order issued on April 14, 1997. The appeals have
been consolidated. We affirm.
I. BACKGROUND
A. Factual Background
In August 1990, a U.S. Customs confidential informant
contacted Leeverne Fisher regarding the smuggling of approximately
1200 pounds of marihuana from Jamaica to the United States. The
confidential informant introduced a U.S. Customs agent to Fisher
and a Jamaican individual known as “Cappi”, telling Fisher and
Cappi that the Customs agent was a source of transportation and a
potential financier for the marihuana smuggling venture. The
Customs agent was advised that Fisher and Cappi had access to large
quantities of marihuana in Jamaica. The three made preliminary
plans at that time. Later, they determined that Fisher would
provide the drop-site, off-load crew and storage facility for the
marihuana. Fisher and the Customs agent made several trips to
locate a drop-site. They eventually agreed on a tract of land in
Anson County, North Carolina to serve as a drop-site.
In early December 1990, the Customs agent told Fisher that he
would not be able to finance the venture; however, the Customs
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agent also said that he had been contacted by another individual
who requested that he transport a large quantity of marihuana into
the United States. The Customs agent requested the use of the
drop-site, off-load crew and storage facility in Anson County,
North Carolina that Fisher had arranged for the venture originally
proposed. Fisher subsequently agreed to this arrangement.
On January 3, 1991, the officers circled the property where
the drop was to occur. As bales from the drop hit the ground,
individuals began retrieving what they believed to be marihuana.
The agents then closed in and arrested everyone except for Fisher,
who fled the scene and remained a fugitive until his arrest on
September 24, 1992.
B. Procedural History
Fisher was indicted in North Carolina in January 1991. On
December 3, 1992, the case was transferred to the Eastern District
of Louisiana pursuant to Rule 20 of the Federal Rules of Criminal
Procedure. Fisher plead guilty on March 8, 1993, to conspiracy to
possess with the intent to distribute in excess of fifty kilograms
of marihuana. He was sentenced on June 30, 1993, to 115 months’
imprisonment, four years’ supervised release, and a $50 special
assessment. The Government subsequently requested, pursuant to
Rule 35(b) of the Federal Rules of Criminal Procedure, that the
court lower the sentence to reward Fisher for providing substantial
assistance to the Government. The court complied with this
request, and on July 29, 1993, the court resentenced Fisher to 103
3
months’ imprisonment and four years’ supervised release. Fisher
did not appeal.
Fisher filed two motions seeking leave to file an out-of-time
direct appeal, alleging that his attorney was ineffective and had
failed to file a notice of appeal despite Fisher’s requests that he
do so. The district court denied the motions and treated the
second motion as an appeal from its denial of the first motion.
This court dismissed Fisher’s appeal, determining that Fisher’s
second motion could not be treated as a notice of appeal of the
district court’s denial of Fisher’s first motion. Because the
motion was an untimely attempt to appeal the sentence imposed on
July 29, 1993, this court lacked jurisdiction to entertain it.
Fisher filed a motion pursuant to 28 U.S.C. § 2255, alleging
that the district court failed to inform him of his right to appeal
and that counsel was ineffective for failing to perfect an appeal.
The Government conceded that § 2255 relief was warranted. The
district court granted the § 2255 motion, vacated Fisher’s judgment
of conviction and sentence, resentenced Fisher to 103 months’
imprisonment and four years’ supervised release, and gave Fisher
ten days to file a notice of appeal.
Fisher filed a timely notice of appeal. He also filed a
motion for relief from the judgment pursuant to Federal Rule of
Civil Procedure 60(b), challenging his sentence on the basis that
he was not present for sentencing and challenging alleged
inaccuracies in the PSR. The district court denied the motion on
November 6, 1996, explaining that Fisher would have the opportunity
4
to present these issues on direct appeal. Fisher moved again for
relief from the judgment. The district court construed this as a
motion for reconsideration of the denial of Fisher’s Rule 60(b)
motion and denied the motion on April 14, 1997. Fisher appeals
that order.
II. ANALYSIS
A. No. 97-30424 - Appeal from the District Court’s April 14, 1997
Order
We first address Fisher’s appeal from the district court’s
order issued on April 14, 1997. Although the Federal Rules of
Criminal Procedure do not explicitly authorize a motion for
rehearing of a district court order, this court has sanctioned the
use of motions for reconsideration in criminal proceedings. See
United States v. Cook, 670 F.2d 46, 48 (5th Cir. 1982). A motion
for reconsideration does not, however, extend the time for
challenging the district court’s order. “[I]n criminal
proceedings, petitions for rehearing of orders affecting final
judgment are timely filed if made within the period allotted for
the noticing of an appeal.” Id. (citations omitted).
Fisher’s second motion for relief from the judgment, which was
denied on April 14, 1997, challenged the Government’s response to
Fisher’s prior motion for relief from the judgment and raised
issues related to Fisher’s resentencing. Fisher timely appealed
from the order denying this motion. However, the motion itself was
not filed timely. It was filed on February 10, 1997, 138 days
5
after the September 1996 resentencing judgment and 96 days after
the November 6, 1996, order denying the previous motion for relief
from the judgment of resentencing.
This motion filed on February 10, 1997, and denied on April
14, 1997, was “an unauthorized motion which the district court was
without jurisdiction to entertain.” United States v. Early, 27
F.3d 140, 142 (5th Cir. 1994) (defendant’s postjudgment motion for
reduction of sentence was unauthorized and without a jurisdictional
basis and did not extend the time for taking an appeal). The
motion cannot be considered a Federal Rule of Criminal Procedure 35
motion because the provisions of Rule 35 do not apply to this
situation. See id. at 141. Likewise, the motion does not satisfy
the criteria required by 18 U.S.C. §§ 3582, 3742. See id. at 142.
The motion also cannot be considered a valid motion for
reconsideration of the denial of the first Rule 60(b) motion,
because it challenged the judgment of resentencing and was not
filed within ten days of the entry of the order denying the first
motion. See Cook, 670 F.2d at 48; see FED. R. APP. P. 4(b).
Fisher’s motion filed on February 10, 1997, was unauthorized.
The district court was without jurisdiction to entertain this
motion. Fisher “has appealed from the denial of a meaningless,
unauthorized motion.” Early, 27 F.3d at 142. Although technically
the district court should have dismissed the motion for lack of
jurisdiction, we can affirm his denial of the motion. Id.
B. No. 96-31070 - Fisher’s Right to Be Present at the September 23,
1996 Sentencing
6
We now address the issues raised in Fisher’s direct criminal
appeal. First, Fisher contends that the district court erred in
resentencing him in abstentia, without the right of allocution, and
without representation by counsel. He contends that he wished to
present mitigating information to the district court before he was
resentenced.
“The sentencing is, . . ., a critical stage of the proceedings
against the accused, at which he is constitutionally entitled to be
present and represented by counsel.” United States v. Huff, 512
F.2d 66, 71 (5th Cir. 1975) (citation omitted); See FED. R. CRIM. P.
43(a). “A defendant’s right to be present when the district court
alters his sentence depends on the type of action the district
court is taking.” United States v. Patterson, 42 F.3d 246, 248
(5th Cir. 1994). In this case, the district court did not
resentence Fisher. The court merely reinstated the judgment on the
docket sheet, following the grant of Fisher’s § 2255 motion, to
allow the appeal time to run anew. This procedure was approved in
Mack v. Smith, 659 F.2d 23, 26 (5th Cir. 1981). The district court
did not alter Fisher’s sentence. Fisher had the opportunity to
challenge the PSR at his sentencing hearing in 1993. He cannot
transform the grant of the § 2255 relief he requested into another
opportunity to raise sentencing issues in the district court.
Fisher’s contentions are without merit.
C. Exculpatory Information
Second, Fisher contends that the Government deprived him of
the right to due process of law by withholding exculpatory
7
information that would have affected his sentencing. Fisher
contends that the Government was aware of testimony obtained at his
codefendant’s trial which would have established that Fisher was
responsible for only 200 pounds of marihuana, not 1200 pounds.
Fisher did not raise this issue in the district court at
sentencing or in his post-judgment motions. Therefore, review is
limited to plain error. See United States v. McDowell, 109 F.3d
214, 216 (5th Cir. 1997). Under Federal Rule of Criminal Procedure
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 court has
discretion to correct the forfeited error, 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.
A defendant’s right to due process is violated when, upon
request for exculpatory evidence, the Government conceals evidence
that is both favorable to the defendant and material to the
defendant’s guilt or innocence. Brady v. Maryland, 373 U.S 83, 87-
88 (1963).2 “The evidence is material if there is a reasonable
probability that, had the evidence been disclosed to the defense,
2
United States v. Agurs, 427 U.S. 97, 103-07 (1976), extends
this disclosure requirement to cases in which the defendant does
not request the information.
8
the result of the proceeding would have been different.” United
States v. Stephens, 964 F.2d 424, 435-36 (5th Cir. 1992)(internal
quotation and citation omitted). A reasonable probability is “a
probability sufficient to undermine confidence in the outcome.”
United States v. Bagley, 473 U.S. 667, 682 (1985).
The Government contends, inter alia, that there was no Brady
violation because Fisher entered a valid guilty plea, admitting his
involvement with the 1200-pound figure established in the PSR. We
agree. Fisher pleaded guilty to a charge of conspiracy to possess
with intent to distribute in excess of 50 kilograms of marihuana.
The Government stated in the factual basis for the plea that Fisher
was involved in negotiations to air drop 1200 pounds of marihuana.
Fisher had no complaints about the Government’s factual basis and
he admitted that the factual basis was true. The PSR calculated
Fisher’s base offense level on the 1200 pound figure. Fisher did
not file objections to the PSR and he did not object at sentencing.
Fisher does not explain how the testimony at his codefendant’s
trial supports his claim that he should be held responsible for
only 200 pounds of marihuana. Fisher has not established a Brady
violation.
Fisher also contends that the Government withheld information
in violation of the Jencks Act. Under the Jencks Act, the
Government must produce any “‘statement . . . of the witness in the
possession of the United States which relates to the subject matter
as to which the witness has testified.’” United States v. Fragoso,
978 F.2d 896, 899 (5th Cir. 1992) (quoting 18 U.S.C. § 3500(b)).
9
Fisher does not identify any specific statements which the
Government may have withheld. To the extent that he is reasserting
a violation due to the Government’s failure to produce the
transcript from his codefendant’s trial, his contention is without
merit.
D. Quantity of Marihuana
Third, Fisher contends that his sentence should have been
based on only 200 pounds of marihuana. He contends that he agreed
to sell only 200 pounds and he had no intention of, nor capability
of, producing or distributing 1200 pounds. He also contends that
the district court should have made a finding regarding the
quantity of drugs.
A district court’s determination of the quantity of drugs
attributable to the defendant for purposes of calculating a
defendant’s offense level is a factual finding that is reviewed for
clear error. United States v. Vine, 62 F.3d 107, 109 (5th Cir.
1995). However, because Fisher did not raise this issue in the
district court, our review is limited to plain error. See FED. R.
CRIM. P. 52(b); see Calverley, 37 F.3d at 162-64.
When an offense involves negotiation to traffic in a
controlled substance, the weight under negotiation in an
uncompleted distribution shall be used to calculate the applicable
amount, except the court shall exclude any amount it finds that the
defendant did not intend to produce or was not reasonably capable
of producing. U.S.S.G. § 2D1.1, comment. (n. 12)(1992); see United
States v. Davis, 76 F.3d 82, 85-86 (5th Cir. 1996) (court may
10
attribute to defendant the amount of an unconsummated transaction,
unless the defendant did not intend or was not reasonably capable
of producing that amount). A defendant who participates in a drug
conspiracy is accountable for the quantity of drugs attributable to
the conspiracy and reasonably foreseeable to him. U.S.S.G. §
1B1.3(a)(1)(B).
The PSR is considered reliable evidence for sentencing
purposes. United States v. Vital, 68 F.3d 114, 120 (5th Cir.
1995). A district court may adopt facts contained in the PSR
without further inquiry if there is an adequate evidentiary basis
and the defendant does not present rebuttal evidence. United
States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). The
defendant bears the burden of proving that the information is
“materially untrue, inaccurate, or unreliable.” United States v.
Angulo, 927 F.2d 202, 205 (5th Cir. 1991).
The PSR provided that Fisher contacted a U.S. Customs
confidential informant (CI) regarding the smuggling of 1200 pounds
of marihuana by plane from Jamaica. Fisher offered to provide the
drop-site, the crew and the storage facility. He made several
trips with the CI and a Customs Agent to find a drop-site, and a
site was selected. The agent subsequently changed the plans,
informing Fisher that he could not provide the money for the
smuggling venture. The agent mentioned, however, that he knew
someone who wanted to use the drop-site to transport a large
quantity of marihuana into the United States. Fisher indicated
that the prior chosen drop-site would be available and that they
11
could store 1000 to 1500 pounds of marihuana there. Fisher was
present at a meeting where diagrams of the drop-site were provided.
On the night of January 3, 1991, Government officers dropped bales
of purported marihuana at the site. Fisher’s codefendants were
apprehended that night; Fisher fled. The PSR contained all of this
information.
The information in the PSR demonstrates that the drug
conspiracy involved at least 1200 pounds of marihuana and that
Fisher intended to complete the transaction. Fisher did not
present evidence that he was incapable of completing his part of
the transaction. Additionally, Fisher admitted his involvement at
rearraignment, and he admitted his guilt to the probation officer
and to the judge at sentencing. The district court did not err in
basing Fisher’s offense level on 1200 pounds of marihuana.
E. Reduction in Offense Level for Pleading Guilty
Fourth, Fisher contends that the district court erred in not
reducing his offense level by three points for acceptance of
responsibility, because he plead guilty before the Government began
preparing for trial. Because Fisher did not raise this issue
before or during sentencing, this court’s review is limited to
plain error. See FED. R. CRIM. P. 52(b); see Calverley, 37 F.3d at
162-64.
“If a defendant ‘clearly demonstrates acceptance of
responsibility for his offense,’ the sentencing guidelines instruct
the district court to decrease the defendant’s offense level by two
and possibly three points.” United States v. Tremelling, 43 F.3d
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148, 152 (5th Cir. 1995) (citation omitted); U.S.S.G. § 3E1.1(a)
and (b). This court affords deference to a district court’s
finding on the reduction for acceptance of responsibility. See
United States v. Gonzales, 19 F.3d 982, 983 (5th Cir. 1994).
The district court reduced Fisher’s offense level by two
points for acceptance of responsibility, pursuant to U.S.S.G. §
3E1.1(a). Section 3E1.1(b) sets forth a three-part test to
determine whether a defendant is entitled to an additional one-
level reduction. United States v. Mills, 9 F.3d 1132, 1136 (5th
Cir. 1993). The sentencing court is directed to grant the
additional decrease if (1) the defendant qualifies for the basic
two-level decrease for acceptance of responsibility under
§ 3E1.1(a); (2) the defendant’s offense level is sixteen or higher
before the two-level reduction under § 3E1.1(a); and (3) the
defendant “assisted authorities” by either (a) timely providing
complete information to the Government concerning his own
involvement in the offense; or (b) timely notifying authorities of
his intention to enter a guilty plea, thereby permitting the
Government to avoid preparing for trial and permitting the court to
allocate its resources efficiently. United States v. Tello, 9 F.3d
1119, 1124-25 (5th Cir. 1993). If the defendant satisfies all
three prongs of the test, the district court must grant the
additional one-level decrease. Mills, 9 F.3d at 1138-39.
Fisher satisfied the first two elements of § 3E1.1(b). He
contends that he satisfied the third element by pleading guilty. We
disagree. Section 3E1.1(b)(2) “defines timely acceptance in
13
functional, not exclusively temporal, terms.” United States v.
Williams, 74 F.3d 654, 656 (5th Cir. 1996) (citations omitted).
The defendant is entitled to the additional reduction for pleading
guilty only if the two goals of the provision are fulfilled: “(1)
the government avoids needless trial preparation, and (2) the court
is able to allocate its resources efficiently.” Williams, 74 F.3d
at 656. Application Note 6 provides in pertinent part, “[T]o
qualify under subsection (b)(2), the defendant must have notified
authorities of his intention to enter a plea of guilty at a
sufficiently early point in the process so that the government may
avoid preparing for trial and the court may schedule its calendar
efficiently.” U.S.S.G. § 3E1.1, comment. (n.6)(1992).
The probation officer refused to recommend the additional
level decrease, because Fisher remained a fugitive for twenty
months before pleading guilty. By the time Fisher was arrested,
all of his coconspirators had been convicted and the Government had
already prepared for trial. Accordingly, the two goals of
subsection (b)(2) were not fulfilled. See Williams, 74 F.3d at
656. The district court did not err in refusing to grant the
additional reduction in offense level.3
3
The Government’s argument that Application Notes 1(d) and 3
support the denial of the additional reduction is not convincing.
Application Notes 1 and 3 apply to § 3E1.1(a), not § 3E1.1(b).
Although the district court could have denied Fisher any reduction
for acceptance of responsibility because he remained a fugitive for
20 months after he was indicted, see United States v. Chapa-Garza,
62 F.3d 118, 122-23 (5th Cir. 1995), it did not do so. We do not
decide today whether, under the circumstances, the district court
had the discretion to deny
the additional one-point reduction based on the defendant’s status
as a fugitive. Our decision that the court did not err in refusing
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F. Validity of Fisher’s Conviction
Fifth, Fisher contends that his conviction is invalid because
the district court lacked jurisdiction to convict him of possession
with intent to distribute a controlled substance. He asserts that
the Government produced and dropped bales of hay, not marihuana.
We note that Fisher was not convicted of possession with intent to
distribute a controlled substance in violation of 21 U.S.C. §
841(a)(1). Rather, he was convicted of conspiracy to possess with
intent to distribute in excess of fifty kilograms of marihuana in
violation of 21 U.S.C. § 846, which provides that “[a]ny person who
attempts or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object
of the attempt or conspiracy.” The elements of conspiracy to
possess with intent to distribute marihuana are: “(1) the existence
of an agreement to possess marihuana with the intent to distribute,
(2) knowledge of the agreement, and (3) voluntary participation in
the agreement.” United States v. Cortinas, 142 F.3d 242, 249 (5th
Cir. 1998)(citation omitted). The Government need not prove an
overt act in furtherance of the conspiracy. United States v. Ross,
58 F.3d 154, 159 n.7 (5th Cir. 1995). The evidence supports the
finding that there was an agreement to possess marihuana with the
intent to distribute it, Fisher had knowledge of the agreement, and
to grant the additional one-point reduction is based on the fact
that the Government had already prepared for trial when Fisher
plead guilty, not on the notion that Fisher’s remaining a fugitive
is inconsistent with an acceptance of responsibility.
15
Fisher voluntarily participated in the agreement. It is not
necessary to prove that the substance dropped was actually a
controlled substance. Fisher’s contention is without merit.
G. Ineffective assistance of counsel
Sixth, Fisher contends that his trial attorney provided
ineffective assistance because he failed to investigate, and object
to, the drug quantity established by the PSR. Fisher asserts that
his counsel did not put the Government’s case to adversarial
testing and that his counsel stood silent at sentencing. Fisher
contends that his counsel failed to request Brady material; failed
to object to the district court’s jurisdiction; failed to object to
the PSR prior to, and at sentencing; and failed to move for an
additional one-point reduction under U.S.S.G. § 3E1.1 for
acceptance of responsibility. Finally, Fisher contends that his
counsel failed to assert that Fisher was entitled to a three-point
reduction under U.S.S.G. § 2X1.1(b) for merely attempting to
complete the object of the conspiracy.
The general rule in this circuit is that a claim of
ineffective assistance of counsel cannot be resolved on direct
appeal when the claim has not been raised before the district
court, since no opportunity existed to develop the record on the
merits of the allegations. United States v. Navejar, 963 F.2d 732,
735 (5th Cir. 1992). Fisher has not raised, and the record has not
been developed on, these issues. Therefore, we decline to address
Fisher’s ineffectiveness claim in this direct appeal.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order issued on April 14, 1997 (No. 97-30424); and we AFFIRM the
defendant’s conviction and sentence (No. 96-31070).
17