Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1989)

Nos. 89-10334, 89-10335.

United States Court of Appeals, Ninth Circuit.

Before CHOY and FLETCHER, Circuit Judges, and FITZGERALD,^**  District Judge.

MEMORANDUM^*** 

Appellants Darral Moore and Larry Manago appeal from their sentences imposed under the Sentencing Guidelines. Moore contends that the sentencing judge abused his discretion in refusing to grant a downward departure from the applicable Guidelines sentencing range on the basis of Moore's young age and deprived background. Manago seeks a reversal of the district court's refusal to allow him to withdraw his guilty plea entered pursuant to a plea agreement; he contends that he did not voluntarily waive his right to a jury trial because his decision to plead guilty was based on his attorney's misrepresentation of the applicable Sentencing Guidelines range. Alternatively, Manago urges the court to find the district court abused its discretion when it refused to allow Manago to withdraw his plea. Additionally, and related to the same miscalculation, Manago argues that he was denied effective assistance of counsel.

We find that this court does not have jurisdiction over Moore's appeal. We affirm Manago's sentence. Manago's guilty plea was not involuntarily entered and he was not denied effective assistance of counsel. We further find that the district court did not abuse its discretion in refusing to allow Manago to withdraw his guilty plea.

BACKGROUND

In December 1988, a grand jury charged Darral Moore in a four count indictment with

(1) conspiracy to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 846 and 841(a) (1);

(2) possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a) (1);

(3) use of a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (1); and

(4) being a felon in possession of firearm in or affecting commerce, in violation of 18 U.S.C. § 922(g) (1).

The grand jury charged codefendant Larry Manago with only the first three counts of the indictment.

Both defendants entered a written plea agreement with the government on March 30, 1989; each pled guilty to Count Two (possession with intent to distribute) in exchange for the government's agreement to drop the remaining counts. On June 27, 1989, Judge Garcia sentenced Moore to 108 months in prison and a five year term of supervised release. Manago received a 109 month sentence.

Moore and Manago each filed timely notices of appeal from their sentences. Neither appeal involves a challenge to the calculation of the sentences under the Guidelines.

DEFENDANT-APPELLANT MOORE

The sole basis of Moore's appeal is his claim that the district court abused its discretion in not sentencing him below the applicable Guidelines range out of consideration for Moore's youth and deprived socio-economic background. (Moore was 23 years old at the time of sentencing. He was raised in the Los Angeles projects.)

This court does not have jurisdiction over Moore's appeal. Courts of appeals do not have jurisdiction to consider appeals from sentencing judges' discretionary refusals to depart downward from the sentencing guidelines. United States v. Morales, 898 F.2d 99 (9th Cir. 1990) We do retain jurisdiction to review refusals to depart downward where such refusal was based on a misapprehension of the law, as for instance, if the sentencing court erroneously believed it did not have the authority to depart. However, there is no suggestion in either the briefs or the record that the court's failure to depart downward was based on a belief that it lacked discretion to sentence Moore below the Guidelines range. To the contrary, the transcript of the sentencing hearing shows that the judge gave Moore's attorney an opportunity to present separately any information to support a request for a departure. Additionally, the court explicitly stated that it intended to sentence Moore to the upper limit of the Guidelines range, and at one point threatened the possibility of an upward departure.

In any event, there is no merit to Moore's challenge. The government is correct that when Congress passed the Sentencing Reform Act it directed the Sentencing Commission to consider the relevance of a number of specific offender characteristics, including age. 29 U.S.C. § 994(d). The Commission ultimately concluded that the defendant's age ordinarily is not relevant in determining whether to sentence outside the guidelines, except for extraordinary circumstances, such as very advanced years combined with infirmity. Sentencing Guidelines Sec. 5H1.1. Congress also instructed the Commission to develop sentencing guidelines that are "entirely neutral as to the race, sex, national origin, creed, and socio-economic status." 29 U.S.C. § 994(d).

DEFENDANT-APPELLANT MANAGO

After Manago entered into a plea bargain with the government, his attorney realized that he had miscalculated the applicable range of sentence under the Guidelines. During the course of plea negotiations, Manago's attorney erroneously calculated that Manago's Sentence Guideline range was between 15 and 21 months. This computation was based on locating the appropriate base offense level that corresponds to possession of over 5 grams of cocaine, rather than cocaine base or "crack."¹  Manago's base offense level, correctly calculated, actually corresponds to a sentence range of 97 to 121 months rather than the 15 to 21 months reported to Manago by his attorney.

The statute to which Manago pled provided for a minimum prison sentence of five years. According to Manago's attorney, since the guideline range (as predicted by his miscalculation) was less than the five-year statutory mandatory minimum and since there was nothing in Manago's criminal history background that would warrant a departure, he advised Manago that he would be sentenced to a five-year prison term.²  Based on this advice, Manago agreed to enter into the plea agreement.

Upon receiving the pre-sentence investigation report, Manago's attorney realized his error. He filed a motion on behalf of Manago seeking to withdraw the guilty plea or, alternatively, requesting the court to depart from the Guidelines. On June 27, 1989, the district court denied the motion and sentenced Manago to 109 months in prison--precisely the middle of the applicable sentencing range.

On appeal, Manago raises three challenges.

First, he contends that he did not voluntarily waive his right to a jury trial. We review the voluntariness of a guilty plea de novo. Marshall v. Lonberger, 459 U.S. 422, 431 (1983); Shah v. United States, 878 F.2d 1156, 1158 (9th Cir. 1989); Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986).

Manago asserts that his guilty plea was not voluntary because it was the result of misadvice given him by his trial attorney; due to his lawyer's inaccurate counsel, Manago had no conception of the risk he was assuming by pleading guilty. If his attorney had accurately portrayed his alternatives, Manago claims, he would not have pled guilty. The government argues that because Judge Garcia provided Manago with the necessary advisements under Federal Rules of Criminal Procedure Rule 11 to ensure the voluntariness of a defendant's guilty plea, this court should not find that Manago's plea was involuntary.

As the Supreme Court recently stated, " [t]he longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.' " Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970). In analyzing such questions, we look to whether the defendant received the information required under Fed. R. Crim. P. Rule 11 and whether the defendant represented that he understood that information and was entering his guilty plea free of any coercion. United States v. Rubalcaba, 811 F.2d 491 (9th Cir. 1987) (plea not involuntary where court informed defendant of maximum possible prison term and advised defendant that court was not bound by plea agreement); Chau Han Mow v. United States, 730 F.2d 1308 (9th Cir. 1984) (guilty plea voluntary and intelligent where court informed defendant of maximum possible sentence).

Rule 11 requires that before accepting a plea of guilty, the court must address the defendant personally and inform him of and make sure he understands the following:

the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term or terms of supervised release and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; ...

Rule 11 further requires that the court insure that the plea is voluntary:

The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or the defendant's attorney.

In United States v. Turner, 881 F.2d 684 (9th Cir. 1989), the defendant challenged a sentence imposed under the Sentencing Guidelines pursuant to a plea bargain. The defendant's lawyer erred in predicting the applicable guideline range. Based on the FBI "rap sheet" which listed only four prior misdemeanors, the lawyer calculated the criminal history category as a "IV," when in reality it was a "VI." The court rejected Turner's claim that this error along with the court's failure to inform him of the applicable offense level and criminal history category made his guilty plea involuntary. Turner controls Manago's appeal. The Turner court found that the defendant was informed and aware of the maximum possible penalty for his crime, that the government did not make any promises or representations regarding a sentencing recommendation, and that the only promises made to Turner in negotiating the plea agreement were that his remaining counts would be dismissed. Relying on previous circuit authority, the Turner court concluded that the fact that the applicable sentencing range was higher than defense counsel's estimate does not demonstrate a violation of Rule 11 so long as the defendant's actual prison sentence does not exceed the maximum period he was told was possible.

Manago does not dispute that the court properly advised him when it accepted his guilty plea. According to the government's undisputed account of the hearing at which the district court accepted the plea agreement, the judge specifically advised Manago that he could not predict what his sentence would be under the guidelines because, until the probation office completed its report, the court could not know enough about Manago and the circumstances of the offense. The judge further advised Manago that the court might sentence Manago to a term higher than his attorney may have predicted and that he might sentence him to the maximum term. The judge established that Manago was aware that the criminal charge to which he was pleading guilty is punishable by a minimum prison term of five years up to a maximum of forty years.

Nor is there any suggestion that any other promises, for example regarding a specific sentence recommendation, had been made to Manago during the plea negotiations. The written plea agreement stated unambiguously that Manago understood that the maximum penalty is forty years and that no promises or representations had been made as to what sentence the court would impose. At the plea hearing, Manago stated that there were no other promises, other than those contained in the written plea agreement, made to induce him to plead guilty.

Thus the present case is distinguished from Chizen v. Hunter, 809 F.2d 560 (9th Cir. 1986), upon which Manago relies. In Chizen, the defendant, prior to sentencing but after being informed by the judge that the court would not be bound by any plea agreement, moved to withdraw his plea on the ground that it was involuntary because it was induced by his counsel's misrepresentation that the judge had agreed to the specific sentence embraced by the plea agreement. We observed that compliance with the requirements of Rule 11 and the defendant's assertion that he knowingly and in the absence of coercion or additional promises pled guilty constitute an " 'imposing' barrier to collateral attack", id. at 562, quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977), and that a defendant who merely asserts that his counsel erroneously predicted the favorable consequences of a guilty plea is entitled to no relief. Nevertheless, we found that the defense attorney's misrepresentation to his client was sufficient to surmount the imposing barrier, and remanded the case back to the state court. In Chizen, however, the misrepresentation made by defense counsel was that as part of the plea agreement, a deal had been struck whereby the judge would not sentence Chizen to more than 90 days in jail. In contrast, here there is no suggestion that either Manago or his attorney believed that part of the plea agreement was a commitment by the prosecutor and the court to recommend or impose a particular sentence. Manago, unlike Chizen, was not operating under the mistaken belief that the prosecutor and the judge had agreed to a specific sentence.

Second, Manago claims he was denied effective assistance of counsel. The effectiveness of counsel is a mixed question of law and fact, reviewed de novo. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). A finding of ineffective assistance of counsel can invalidate a guilty plea. Hill v. Lockhart, 474 U.S. 52, 56 (1985); United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990). The two-part standard adopted in Strickland v. Washington, 466 U.S. 668, for evaluating claims of ineffective assistance of counsel applies to guilty plea challenges. Hill v. Lockhart, 474 U.S. at 57. To demonstrate ineffective assistance of counsel under Strickland, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.

We do not reach the issue of whether counsel's performance was deficient because we find that Manago fails to demonstrate that he was prejudiced. To satisfy the "prejudice" requirement, the defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.

Manago has not met his burden of proving that his counsel's miscalculation affected the outcome of the case. We previously have rejected for lack of prejudice defendants' claims of ineffective assistance of counsel in a plea challenge where the district court advised the defendants of the maximum possible penalty and the defendants expressed satisfaction with their attorney before entering the guilty plea. United States v. Turner, 881 F.2d 684 (9th Cir. 1989); United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir. 1987). Judge Garcia advised Manago that his attorney's prediction might be wrong, that the sentence imposed could exceed the attorney's prediction, and that the statutory maximum was forty years.

Even under more exacting review, Manago has failed to establish prejudice. According to the government's undisputed testimony, if Manago insisted on going to trial, he would be charged with all three counts and, therefore, would risk facing a statutory mandatory minimum of ten years, up to a maximum of eighty-five years. In addition, a motion was pending before the district court regarding the introduction of evidence that Manago was a member of a Los Angeles gang and that he previously had been convicted of possession of a concealed firearm within a vehicle. At the hearing on the motion to withdraw the guilty plea, Manago's lawyer acknowledged that if Manago were allowed "to withdraw his plea bargain that based upon the facts and circumstances of this case, and my understanding of the evidence, that Mr. Manago will end up serving more time than what either the Probation Department has indicated is the sentence that should be given ..."

Manago relies on Iaea v. Sunn, 800 F.2d 861, but that case provides him no comfort. The Iaea court found that counsel's performance was deficient and that there was a possibility that on remand the defendant could establish both prejudice and an involuntary plea. However, in remanding the case, the court noted that the record in Iaea was "replete" with evidence that suggested Iaea could satisfy the high burden placed on one who alleges ineffective assistance of counsel and a coerced guilty plea. Iaea sought a trial and maintained his factual innocence to the end; he supplied names of witnesses to support his theory of innocence and on his guilty plea form, he crossed out the words "I believe myself to be guilty," and replaced them with "I do not wish to go to trial." His brother threatened to withdraw bail, and his lawyer threatened to withdraw counsel if Iaea did not plead guilty. There are no such special circumstances in the present case. The only evidence Manago presents is his statement that if his counsel had accurately calculated the base offense level, he would have gone to trial rather than plead guilty.

Manago argues that the trial court erred in refusing to allow Manago to withdraw his plea. We review such denials for abuse of discretion. United States v. Rubalcaba, 811 F.2d 491, 492 (9th Cir. 1987).

Under Fed. R. Crim. P. 32(d),

If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.

The advisory committee notes suggest that a court ruling on a motion to withdraw a guilty plea should consider, among other factors, whether there has been an assertion of legal innocence. Manago has made no such claim. Cf. Iaea v. Sunn, 800 F.2d 861 (court emphasized the defendant maintained his innocence). The defense attorney's gross miscalculation of the base offense level-15-21 months rather than the applicable 97-121 month range--may present a "fair and just reason" for allowing Manago to withdraw his plea so that he may intelligently evaluate his real options. However, for the reasons we rejected Manago's ineffective assistance of counsel and involuntary plea challenges, we cannot say that the court abused its discretion in denying Manago's request to withdraw his guilty plea. See also, Shah v. United States, 878 F.2d 1156, 1161 (rejecting similar appeal from denial of motion to withdraw guilty plea); United States v. Rubalcaba, 811 F.2d at 492-493 (same).

CONCLUSION

We do not have jurisdiction to hear Moore's appeal from the sentencing court's refusal to grant a downward departure.

The error made by Manago's defense attorney does not constitute ineffective assistance counsel and does not invalidate Manago's guilty plea. Manago did not meet his burden of proving that the court abused its discretion in not allowing Manago to withdraw his guilty plea.

We dismiss Moore's appeal and we affirm Manago's sentence.