Unpublished Disposition, 851 F.2d 361 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 361 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Jorge AGUILAR, Defendant-Appellant.

No. 86-4125.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1987.* Decided June 22, 1988.

Before KILKENNY, CANBY and LEAVY, Circuit Judges.



Jorge Aguilar appeals the district court's denial of his motion to correct his sentence under Federal Rule of Criminal Procedure 35(a) and the court's denial of his motion to vacate his sentence under 28 U.S.C. § 2255.

Aguilar was indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (Count 1) and for distribution of cocaine in violation of 21 U.S.C. § 841(a) (1) (Count 2). He entered a plea of nolo contendere on the conspiracy charge and the second count was dismissed on motion of the government. Before accepting Aguilar's plea, the court advised him of the maximum sentence and fine that he could receive. The court did not advise Aguilar that the Parole Commission may consider conduct that was the subject of the dismissed count in computing his parole eligibility date. Aguilar was sentenced to five years imprisonment and, after considering conduct underlying both counts of the indictment, the Parole Board determined that Aguilar would not be eligible for parole until the expiration of his prison term.

On appeal, Aguilar argues that the district court erred because it did not inform him that the Parole Commission could consider actions addressed in the dismissed count when calculating his parole eligibility. In addition, Aguilar argues that the court should have held an evidentiary hearing to determine whether he would have refused to enter a plea if he had known of the parole consequences. Finally, Aguilar argues that the court should have held an evidentiary hearing on the claim that the plea was premised on his attorney's assurances of a short prison term. We affirm.


We review the district court's denial of Aguilar's Sec. 2255 motion de novo.1  See United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 107 S. Ct. 16 (1986).

I. The District Court's Failure to Hold A Hearing or Advise Aguilar of the Parole Consequences of his Plea.

Federal Rule of Criminal Procedure 11(c) (1) provides that before accepting a nolo contendere plea, a district court must advise the defendant of the minimum possible prison term, the maximum possible prison term, and any special parole term. Fed. R. Crim. P. 11(c) (1). A violation of 21 U.S.C. § 846 does not carry any minimum sentence or a mandatory special parole term. Thus, the court properly complied with the requirements of Rule 11 when it advised Aguilar of the maximum statutory prison term he could receive.

Although Aguilar was entitled to know the direct consequences of his plea, the court was under no duty to advise him of "all the possible collateral consequences." See United States v. King, 618 F.2d 550, 552 (9th Cir. 1980); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977). We have noted that the terms of traditional parole, such as parole eligibility, are collateral and need not be communicated to the defendant before acceptance of a plea. Bunker v. Wise, 550 F.2d 1155, 1158 (9th Cir. 1977).

Moreover, the determination that a particular consequence is collateral often depends on whether the consequence is decided by another governmental agency. The time of potential parole eligibility is determined by the Parole Commission after the court's acceptance of a plea. At the time of sentencing, it is impossible for a judge to determine how much time will be actually served in prison. Compare Munich v. United States, 337 F.2d 356 (9th Cir. 1964) (defendant must be advised if plea will render him statutorily ineligible for parole). The parole board's authority is "separate and distinct from that of the sentencing judge." Sanchez, 572 F.2d at 211. Thus, the board's decisions regarding traditional parole eligibility are collateral and the district court was under no obligation to inform Aguilar of the possible parole implications of his nolo contendere plea.

Similarly, the court was not required to hold an evidentiary hearing to determine whether Aguilar would have refused to enter a plea if he had been informed of the parole implications. Under Sec. 2255, a hearing is mandatory " [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. Allegations that do not state a claim for relief as a matter of law do not require a hearing. Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Aguilar failed to state a legally cognizable claim because the court was under no obligation to inform him of the parole consequences of his plea. Thus, it was not necessary for the court to hold an evidentiary hearing on the likelihood that Aguilar would have refused to enter a plea. See Carter v. McCarthy, 806 F.2d 1373 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987).

II. Aguilar's Reliance On His Counsel's Advice.

Aguilar contends that his plea was involuntary because it was premised on the assurances of his attorney and a probation officer that he would serve a maximum prison term of 24 months. If Aguilar entered a nolo contendere plea upon counsel's advice, the voluntariness of the plea depends on whether the advice was " 'within the range of competence demanded of attorneys in criminal cases.' " Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The two-part test set out in Strickland v. Washington, 466 U.S. 668, 687 (1984) applies when guilty pleas are challenged as based on counsel's improper advice. Hill, 474 U.S. at 58. Under that test, Aguilar must show (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that "there is a reasonable probability that, but for counsel's errors, he would not have [entered a plea] and would have insisted on going to trial." Id. at 58-59.

Aguilar argues that he should have been given an evidentiary hearing so that he could attempt to prove sufficient prejudice. Under Hill, however, the district court is not required to hold a hearing on counsel's performance unless the Strickland test is satisfied. Id. at 60. In Hill, the Court held that the district court did not err in declining to hold a hearing because the petitioner failed to satisfy the prejudice requirement of the Strickland test. Id.

Similarly, in the present case, Aguilar has not alleged sufficient prejudice to satisfy Hill. Although he states, in conclusory fashion, that he would not have entered a plea without counsel's assurances of a short prison term, such allegations are insufficient to warrant an evidentiary hearing. See Baumann, 692 F.2d at 571. The record does not support Aguilar's assertion that he entered the nolo contendere plea with "hesitation and reservations." In addition, no "special circumstances" existed to support Aguilar's conclusion that he placed particular emphasis on counsel's assurances. See Hill, 474 U.S. at 60. Under this set of facts, the district court did not err by dismissing Aguilar's claim without an evidentiary hearing. Accordingly, the decision of the district court is AFFIRMED.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3


The narrow function of Rule 35 is to permit correction of an illegal sentence at any time, not to reexamine errors that occurred prior to the imposition of a sentence. Hill v. United States, 368 U.S. 424, 430 (1962). Since Aguilar challenges only the district court's plea proceeding on appeal, Rule 35 is inapplicable and we decide this case under 28 U.S.C. § 2255 alone