Unpublished Disposition, 902 F.2d 42 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 42 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Kelvin R. STEELE, Defendant-Appellant.

No. 88-15531.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 5, 1989.* Submission Deferred Oct. 13, 1989.Resubmitted March 13, 1990.Decided May 9, 1990.

Before TANG, CYNTHIA HOLCOMB HALL and BRUNETTI, Circuit Judges.

MEMORANDUM** 

Steele appeals from the denial of reconsideration of his 28 U.S.C. § 2255 motion to vacate, modify, or set aside his sentence. The sentencing court conducted a two-day evidentiary hearing before denying reconsideration. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the denial of a Sec. 2255 petition. United States v. Quan, 789 F.2d 711, 713 (9th Cir. 1986). We set aside findings of fact resulting from the evidentiary hearing only if they are clearly erroneous. See Amadeo v. Zant, 108 S. Ct. 1771, 1772 (1988).

Steele posits three arguments on appeal. First, he contends that his guilty plea was involuntary because it was a product of coercion and inducement. Second, he raises a claim of ineffective assistance of counsel. Finally, he asserts that the violation of Federal Rule of Criminal Procedure 32(c) (3) (D) requires that his sentence be vacated.


We agree with the district court that Steele's first two arguments lack merit. However because the sentencing judge did not follow the letter of Rule 32(c) (3) (D), we reverse the denial of Steele's Sec. 2255 petition and remand for resentencing in strict compliance with the Rule.

* Steele contends that his attorney improperly coerced him into pleading guilty, and that he would not have pleaded guilty if he had known that he would receive a sentence of more than seven years. We review de novo whether a guilty plea was voluntary. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1985). However, the district court's finding of historical or subsidiary facts will not be disturbed on appeal unless they are clearly erroneous. Amadeo, 108 S. Ct. at 1772.

During the two-day evidentiary hearing, the sentencing judge specifically examined evidence of whether Steele was coerced or induced into entering a guilty plea. Judge Henderson found that Steele probably did expect to receive a shorter sentence than was actually imposed, and that Steele's counsel may have led him to anticipate a shorter sentence. However, he also found that there was no evidence of any agreement that Steele would receive a shorter sentence.

Counsel's belief or opinion that a shorter sentence would be imposed is not grounds for setting aside a plea and conviction. United States v. Edmo, 456 F.2d 240, 242 (9th Cir. 1972). The fact that the defendant is surprised at the severity of a sentence is equally insufficient when no claim has been made that a different sentence was agreed upon. Pinedo v. United States, 347 F.2d 142, 146-47 (9th Cir. 1963); Swanson v. United States, 304 F.2d 865, 866 (9th Cir. 1962).

The record shows that when he entered his guilty plea, Steele stated that he had given his attorney all the facts needed to represent him and that he had discussed the elements of the offenses and any possible defenses with counsel. Steele provided details of the two armed robberies to which he was pleading guilty. He stated that no one had made him any promises or given him any assurances to induce him to plead guilty and that no one had given him any indication as to what sentence the count might impose. He further stated that he understood that the sentence to be imposed was entirely in the hands of the court. (RT 2-14).

Steele claimed at the evidentiary hearing that those statements were lies made upon the advice of his attorney. The court found that he failed to explain why counsel would advise such fabrication.

Based on the findings of fact by the court and upon the clear record, we find Steel's contention that his guilty plea was involuntary meritless.

II

Steele contends that his Sixth Amendment right to effective counsel was denied. He alleges that counsel improperly solicited testimony against Steele from another client, and improperly failed to present a defense.

The effectiveness of counsel is a mixed question of law and fact that we review de novo. Bostic v. Carlson, 879 F.2d 417, 418 (9th Cir. 1989). We review the performance of counsel with high deference and strongly presume that the conduct falls within the wide range of reasonable professional assistance. United States v. Hamilton, 792 F.2d 837, 839 (9th Cir. 1986). During the evidentiary hearing, Steele specifically waived his attorney-client privilege in order to pursue this defense.

The district judge deemed "ludicrous" Steele's contention that his attorney attempted to induce another prisoner to testify against him. He found that Steele did not explain why his counsel would try to obtain testimony against him or show any harm which resulted to Steele as a consequence, even if the allegation were true. We find no clear error in this determination.

Counsel entered a motion to suppress, conducted extensive discovery, used a special investigator, obtained appointment of an expert on eye-witness identification, and was granted a continuance because of the complexity of the case. As a result of these activities, and after Steele admitted to counsel that he had committed some of the robberies that he was charged with as well as additional robberies, counsel determined that it was likely that Steele would be convicted on at least some of the counts.

Counsel was also aware that rejection of the plea offer would result in a superseding indictment that would include statutory sentence enhancement based on the use of a firearm in the robberies. Counsel's recommendation that Steele accept a plea offer under these circumstances was not improper. See Dennis v. People of State of Ca., 414 F.2d 424, 425 (9th Cir. 1969).

Although counsel may not have been completely accurate in predicting what the sentence would be, we find nothing to show that counsel's actions were so deficient as to deprive Steele of his Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1983). In fact, the court awarded him attorney fees based on "services of an unusual character and duration" in pursuing this case.

Since Steele entered a plea of guilty, his counsel was not obligated to present a defense. Additionally, Steele does not show he was prejudiced by the presentation of his case. See id. at 687. He does not allege that counsel failed to investigate properly or failed to consider proper defenses, and the record clearly shows that there was no such failure. His claim of ineffective assistance of counsel is therefore without merit.

III

Finally, Steele contends that his sentence is invalid because the sentencing judge failed to comply with the strictures of Federal Rule of Criminal Procedure 32(c) (3) (D). This argument has merit.

At his sentencing hearing, Steele objected to certain allegations in the presentence report. When such a challenge is made, Rule 32(c) (3) (D) requires the sentencing judge to perform two tasks. First, the judge must make either (1) a finding as to the allegation or (2) a determination that such a finding is unnecessary because the controverted material will not be considered in sentencing. Second, the judge must append a written record of his findings or determinations to copies of the presentence report that will reach the Bureau of Prisons.

In this case, the district judge did not perform the first task until after sentencing; only after Steele had filed a Sec. 2255 petition did the judge state that he had not relied upon the controverted statements. We have recently held that the language of Rule 32 precludes postsentencing compliance with its requirements. See United States v. Fernandez-Angulo, No. 87-3068, Slip Op. 2731, 2736 (9th Cir. March 13, 1990) (en banc). Accordingly, the district court's failure to make the necessary findings or determinations at the time of sentencing requires vacation of Steele's sentence and remand for resentencing. See id. at 2735. Upon remand, the district court must append the required findings or determinations to the presentence report. See id. at 2737. AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a); 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 9th Cir.R. 36-3