Unpublished Disposition, 931 F.2d 61 (9th Cir. 1991)

MEMORANDUM^* 

Morris appeals a 20 year sentence handed down after his plea of guilty to one count of possession with intent to distribute approximately 113 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a) (1). We affirm.

Morris pleaded guilty after making a plea agreement whereby he agreed to cooperate with the Government, and the Government agreed (1) not to file a more serious superseding indictment, (2) to move to dismiss another count of the indictment, and (3) to make the District Court aware of Morris's cooperation.

Morris complains that his plea was involuntary in violation of Fed. R. Crim. P. 11 because (1) his attorney failed to properly advise him of the maximum sentence under the statute, and (2) he did not understand the effect his criminal history would have on his sentence. Morris also claims that he did not receive effective assistance of counsel for the same reasons, as well as because his attorney did not sufficiently detail the extent of his cooperation with the Government to the District Court.

We review de novo the voluntariness of a guilty plea. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). The effectiveness of counsel is a mixed question of law and fact which we also review de novo. Id.

VOLUNTARINESS OF THE PLEA

We review claims of non-compliance with Fed. R. Crim. P. 11 at a plea hearing by reviewing the transcript. See United States v. O'Donnell, 539 F.2d 1233 (9th Cir. 1976).

The transcript of the plea hearing shows that Morris was misinformed by his attorney about the maximum sentence the court could impose. However, the transcript also clearly demonstrates that the Government and the trial judge immediately clarified this point, and that Morris was aware of the applicable statutory maximum (as well as minimum) when he entered his plea.

The transcript of the sentencing hearing also shows that Morris may not have understood the effect his criminal history would have on his sentence. However, we have held that a failure to understand the practical impact of the Guidelines does not render a plea involuntary. United States v. Turner, 881 F.2d 684 (9th Cir. 1989). In that case the Ninth Circuit found that there was no violation of Fed. R. Crim. P. 11 where the defendant was advised of the correct sentencing range under the statute, where no promises were made outside a plea agreement to dismiss another count of the indictment, and where the defendant's attorney, based on an incomplete F.B.I. rap sheet, gave the defendant an incorrect estimate of how his criminal history would affect the sentence. In Turner the defendant had been warned by the trial judge that the sentence might depend on factors then unknown to his attorney. Here, the transcript indicates that Morris was warned at the plea hearing that any estimates made by anyone at any time before or during the plea hearing, including estimates by his attorney, were to be treated only as predictions. The transcript of the plea hearing also reveals that Morris and his attorney both told the trial judge under oath that no promises had been made about the sentence. Finally, as discussed above, Morris was made aware of the applicable statutory range prior to entering his plea.

We therefore conclude that Morris's plea was voluntary despite his attorney's initial failure to inform him of the correct maximum sentence, and despite the possible misunderstanding on his part regarding the effect of his criminal history on his sentence.

INEFFECTIVE ASSISTANCE OF COUNSEL

A defendant claiming ineffective assistance of counsel has the burden of showing that, under all the circumstances, (1) the lawyer's errors or omissions constitute a failure to exercise the skill and judgment of a reasonably competent attorney, and (2) the lawyer's deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 686 (1984). The defendant must identify the specific errors and omissions alleged to constitute ineffective assistance. Id. at 690.

Morris claims that his attorney's failure at the sentencing hearing to adequately inform the District Court of the extent of his cooperation with the Government was ineffective assistance of counsel. Morris asserts that, had this information been effectively presented, he would have received a shorter sentence. The transcript of the sentencing hearing shows that Morris's attorney told the trial judge that his client had offered the Government more assistance than Morris was being given credit for in the Government's sentencing recommendation. After hearing this however, the trial judge said that he would never sentence Morris to less than the 20 year minimum recommended by the Government. That sentence represented a downward departure of 10 years below the 30 year minimum prescribed by the Guidelines. Additionally, Morris could have received another 5 years, to be served subsequent to the drug trafficking charge, if he had been found guilty of the weapons charge the Government agreed not to file in a superseding indictment. In view of the Court's statement, it is clear that even if Morris's attorney did present the information regarding his client's additional cooperation in a constitutionally ineffective manner, Morris was not prejudiced thereby; a competent submission of the appropriate information would not have resulted in a reduction of his sentence to less than a 20 year term. Thus, Morris's contention that he received ineffective assistance of counsel because his attorney failed to adequately inform the District Court of the extent of his cooperation with the Government does not satisfy the "prejudice" prong of the Strickland test and we must reject that claim.

Morris also contends that his attorney's failure to inform him of the maximum statutory sentence constitutes ineffective assistance of counsel. In the context of challenges to guilty pleas, the prejudice prong of the Strickland test is satisfied if the defendant can show that "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). As we stated earlier, the transcript of the plea hearing shows that Morris was misinformed by his attorney about the maximum statutory sentence, but that the misinformation was immediately corrected by the Government and Morris was specifically informed that he could face a life sentence. Moreover, later in the plea hearing, the trial judge made sure on two separate occasions that Morris understood he could face the maximum penalty if he pleaded guilty. Nevertheless, Morris still decided to plead guilty. Thus, even if counsel's initial failure to inform Morris of the correct maximum sentence constitutes ineffective assistance, Morris has failed to show that, but for this error, he would have entered a different plea. Therefore, we must also reject this claim because it fails to satisfy the "prejudice" prong of the Hill test.

Finally, Morris asserts that his attorney's failure to inform him of the effect his criminal history could have on his sentence constitutes ineffective assistance of counsel. While it appears from the transcript of the sentencing hearing that Morris may not have understood the consequences that could flow from his prior criminal record, it is not clear what, if anything, his attorney actually told him about the subject, or about the Guidelines in general. Direct appeal is not ordinarily the appropriate forum in which to raise claims which are based on conduct not reflected in the trial record. That is certainly the case here. Claims such as Morris's are more appropriately raised in a proceeding under 28 U.S.C. § 2255.

AFFIRMED.