U.S. v. Navejar

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-5541
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN D. NAVEJAR, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
( June 8, 1992 )
Before POLITZ, Chief Judge, DAVIS and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:
Proceeding pro se and in forma pauperis Benjamin D.
Navejar, Jr. appeals the sentence imposed following his plea of
guilty to distribution of heroin and carrying a firearm during a
drug trafficking offense. For the reasons assigned we affirm.
Background
Navejar was indicted for distributing more than 100 grams of
heroin in violation of 21 U.S.C. § 841(a)(1), carrying a firearm
during a drug trafficking offense in violation of 18 U.S.C.
§ 924(c)(1), and being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). He reached a plea agreement
which called for him to enter a plea of guilty to the first two
charges and the government would dismiss the felon in possession of
a firearm charge. The plea contained no provision relative to a
recommended sentence. The government advised the court of the plea
agreement but shortly thereafter, when Navejar appeared for entry
of his guilty plea, he informed the court that he wished to proceed
to trial.
The government responded to this change in circumstances by
giving notice that it would seek sentence enhancement of the felon
in possession charge because Navejar was a thrice-convicted felon.
The plea discussions were revived and Navejar subsequently pleaded
guilty to the first two counts based on an agreement substantially
similar to that earlier renounced. The new agreement, however,
contained a provision that the prosecution and defense concurred
that a sentence of 270 months incarceration would be an appropriate
disposition of the two charges.
Navejar was sentenced to jail for 210 months on the heroin
distribution charge and 60 months on the carrying of a firearm
during a drug offense charge, with the sentences to run
consecutively, together with a supervised release term of four
years and three years, respectively. He timely appealed, raising
four assignments of error: (1) the presentence report (PSR)
contained both procedural and factual defects; (2) the plea
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agreement was not binding because he was not adequately informed of
its contents; (3) the court erred in its guideline calculations;
and (4) he received ineffective assistance of counsel.
Analysis
In his first point of error Navejar contends that he was not
given an opportunity to review the PSR before his sentencing
hearing, asserting that his due process rights were violated
because the court failed to provide him and his counsel with copies
of the PSR at least ten days before sentencing as required by
Fed.R.Crim.P. 32(c)(3)(A) and 18 U.S.C. § 3552(d). He further
contends that the PSR contains many factual errors.
The contemporaneous objection rule applies equally to
sentencing hearings as to trials. United States v. Vonsteen, 950
F.2d 1086 (5th Cir. 1992). Navejar did not object to these alleged
errors during the sentencing hearing and, accordingly, he may not
raise this objection for the first time on appeal absent plain
error. United States v. Lopez, 923 F.2d 47 (5th Cir.), cert.
denied, 111 S. Ct. 2032 (1991).
"'Plain error' is error which, when examined in the context of
the entire case, is so obvious and substantial that failure to
notice and correct it would affect the fairness, integrity or
public reputation of judicial proceedings." Id. at 50. "It is a
mistake so fundamental that it constitutes a 'miscarriage of
justice.'" "Alternatively stated, when a new . . . legal issue is
raised for the first time on appeal, plain error occurs where our
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failure to consider the question results in 'manifest injustice.'"
Id.
We perceive no plain error on the PSR complaint. At the
sentencing hearing the court handed the PSR to Navejar and asked
whether he had had sufficient time to review it with counsel.
Navejar consulted privately with counsel and then answered in the
affirmative. Nothing in the record contradicts that in-court
statement. "Solemn declarations in open court carry a strong
presumption of verity. The subsequent presentation of conclusory
allegations unsupported by specifics" is inadequate to challenge
such declarations. Blackledge v. Allison, 431 U.S. 63, 74, 97
S. Ct. 1621, 1629, 50 L. Ed. 2d 136, 147 (1977).
Navejar's complaints of error in the PSR are merely general
statements that it is inaccurate and misleading. He does not
identify any specific error nor does he identify the facts that
are, in his view, incorrect. In disputing factual assertions in a
PSR the defendant must show that the information is materially
untrue, inaccurate, or unreliable. United States v. Kinder, 946
F.2d 362 (5th Cir. 1991), cert. denied, 118 L. Ed. 2d 394 (1992).
Navejar's objections are vague and general; they neither
demonstrate nor suggest material untruth, inaccuracy, or
unreliability.
In his second assignment of error Navejar contends that
although he signed the plea agreement, he was at no time "able to
review the new agreement or discuss it with his counsel." He
insists that it was not until months later that he realized that he
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had signed a plea agreement different from the earlier agreement.
The primary difference between the two is the provision relative to
a sentence of 270 months.
The transcript of the plea hearing belies Navejar's
contention. He testified that he had reached a plea agreement with
the government and that he had seen the written agreement. The
court, the prosecutor, and defense counsel questioned Navejar
extensively about the plea agreement, its contents, and its
consequences. In turn, Navejar asked questions, all of which were
answered. The record of the in-court discussion of the plea
agreement spans 54 pages of transcript and the key challenged
provision of the agreement, the 270-month sentence, was referred to
no less than nine times. At the conclusion, the vastly experienced
trial judge made an express finding that Navejar understood the
terms of the agreement. This assignment of error has no merit.
Navejar's third contention is that his sentence is "far above
the logical and fair punishment required" by the sentencing
guidelines. Once again Navejar failed to make this objection in
the district court and we review only for plain error.
Navejar has neither alleged nor identified any defect in the
calculation of the guidelines sentence. Only issues that are
specified and briefed are properly before the appellate court.
Price v. Digital Equip. Corp., 846 F.2d 1026 (5th Cir. 1988), cert.
denied, 493 U.S. 975 (1989); Brinkmann v. Abner, 813 F.2d 744 (5th
Cir. 1987). A pro se appellant's one-page description of familiar
rules, "without even the slightest identification of any error"
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made by the district court "is the same as if he had not appealed
that judgment." Brinkmann, 813 F.2d at 748. Without being
informed of the asserted error(s) in the sentencing guidelines
calculation, we can make no meaningful review. This claim, too,
has no merit.
Finally, Navejar makes conclusionary charges of ineffective
assistance of counsel. He contends that his attorney failed to
represent him adequately when preparing the plea agreement, did not
provide evidence of mitigation, failed to research the facts and
law of the case, and neither explained to him the consequences of
the PSR nor objected to its inaccuracies.
Our controlling precedent directs that a claim of ineffective
assistance of counsel generally cannot be addressed on direct
appeal unless the claim has been presented to the district court;
otherwise there is no opportunity for the development of an
adequate record on the merits of that serious allegation. United
States v. Higdon, 832 F.2d 312 (5th Cir. 1987), cert. denied, 484
U.S. 1075 (1988). We "resolve claims of inadequate representation
on direct appeal only in rare cases where the record allow[s] us to
evaluate fairly the merits of the claim." Id. at 314. The case
before us is not one of those rare cases; Navejar's vague
allegations largely refer to matters outside of the record. We do
not consider this assignment of error.
The sentence of the district court is AFFIRMED.
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